author: ALEXANDER, Justice.

text:
    McELWRATH v. CITY OF McGREGOR.
    No. 1259.
    Court of Civil Appeals of Texas. Waco.
    March 16, 1933.
    Rehearing Denied April 13, 1933.

      Bryan & Maxwell, of Waco, and Davis, Jester & George, of Corsicana, for appellant.
    Weatherby & Rogers, of Waco, and J. B. Ford, of McGregor, for appellee.
   ALEXANDER, Justice.

In 1927 the city of McGregor entered into a written contract with F. P. McElwrath by which the latter agreed, for a certain price, to pave certain streets in the city of Mc-Gregor and to maintain the same in a proper state of repair for a period of five years. In 1931 the city of McGregor brought this suit against McElwrath and alleged that the pavement had become defective, and that he had failed and refused to repair same. The plaintiff sought damages for the breach. A trial before a jury on special issues resulted in a verdict and judgment for the plaintiff for the sum of $6,000. The defendant appealed.

The jury found that the pavement in question developed defects which impaired its usefulness as a roadway within less than five years from the completion of said work, and that such defects were caused by the failure of the base upon which the pavement was laid and by defective materials, workmanship, plans, methods, 'and processes used in the construction of the pavement; that 75 per cent, of the defects was caused by the failure of the base; that the contractor failed to properly roll the base; and that the failure of the base was caused by the failure to properly roll the base and by defective workmanship, materials, plans, methods, and processes employed in the construction of the pavement; and that $6,000 would be the reasonable cost of repairing such defects.

The appellant contends that under his contract he was not responsible for, and was not required to repair, defects caused by either defective plans or the failure of the base. The evidence shows that the city of Mc-Gregor had the plans and specifications prepared for the proposed improvements and advertised for bids. Each bidder was required to familiarize himself with the plans and to submit two bids, one with maintenance for a period of five years, and the other without maintenance. The appellant’s bid for construction of the improvements, together with the guaranty of maintenance, amounted to approximately six cents per square yard more than did his bid without maintenance. The city accepted the higher bid with the maintenance provision. It appears that, pri- or to the letting of the contract, the city maintained some sort of pavement on the streets in. question, and there was present on each of said streets a base of either rock or gravel. The contract provided that the new pavement should be laid “on present rock and gravel base.” It was recognized, however, that it would be necessary to make some changes in this base before laying the new pavement. The plans and specifications on which the bids were based and which were made a part of the contract required the contractor to make excavations or fills where necessary in order to bring the base to the proper grade. It was further provided that, if it should be found that the material at the subgrade was soft or spongy or unfit for a foundation, the contractor should make such excavation as might be determined by the engineer and refill with approved material. It was further provided that, after the surface had been brought to the proper subgrade, the roadway should be thoroughly rolled and compacted with an approved roller, and, if any settlement occurred, the depression should be filled and rolled until the surface was solid and uniform. It was further provided that, if after the completion of said improvements defects developed in that part of the pavement lying between the rails of the railway line, and it should be found that the defects had been produced by loose rails or other causes chargeable to the railway company, the contractor should not be required to repair same, “provided, however-, that nothing herein shall be construed to relieve the liability of the said contractor to keep and maintain any of the other portions of said street in good' condition and repair as herein provided, irrespective of the cause producing any defective condition therein.” Upon the acceptance of appellant’s bid, he entered into a written contract with the city which provided, in part, as follows: “ * * * The Contractor hinds himself to use such materials and to so construct said improvements that same will he and remain in good repair and condition for a period of five years after the date of completion and acceptance of the improvements, and agrees that he will repair or reconstruct said improvements within five years from the completion and acceptance thereof if necessitated within that time by any fault of materials, plans, methods or processes employed in the construction thereof, and the Constructor further agrees and binds himself that said improvements for such term shall be and remain in good serviceable condition, smooth and free from any defects that will impair its usefulness as a roadway, and should same, at any time within said period, in the judgment of the Board of Commissioners, whose judgment shall be final and conclusive, become defective and be not in a good smooth and serviceable condition, free from any defects that will impair its usefulness as a roadway, by reason of any defective materials, workmanship, plans, methods, or processes, then the said Board of Commissioners shall cause to be served upon the Contractor a notice in writing to repair such improvements or portions thereof, or reconstruct the same and put same in a smooth, satisfactory and good condition.

When the above provisions of the contract are read .in connection with the provisions of the plans and specifications, we think it clear that the contractor not only became responsible for, and agreed to repair, any defects resulting from defective plans, as therein expressly so provided, but also defects resulting from the failure of the base or any other cause. While the plaris called for the construction of the pavement on the “present rock and gravel base,” this did not amount to an assumption by the city of all responsibility for defects in the existing base, nor relieve the appellant of his contractual. obligation to properly prepare the base. This provision merely gave the contractor permission to use the existing base where suitable. The contract charged him with the responsibility of ascertaining whether or not the base was in fit condition to receive the pavement, and, if not, to put it in suitable condition therefor. It bound him to so construct said “improvements” that same would “be and remain in good serviceable condition, smooth and free from any defects that will impair its usefulness as a roadway f.or a period of five years.” The proper preparation of the base constituted a part of the sei'vices to be performed in constructing the “improvements” and the provision that he would “repair or reconstruct said improvements * * * if necessitated * * * by any fault of materials, plans, methods or processes employed in the construction thereof,” applied not only to the materials, plans, methods, and processes used in preparing and spreading the asphalt which was to constitute the upper surface of the improvements, but also to those used in preparing and properly constructing the base upon which the asphalt was to be.laid. The specifications obligated the contractor specifically to use proper materials in making refills in the base, and to properly roll the base, and the jury found that the base was caused to fail by reason of -his failure to use proper materials therein arid to properly roll the base. It necessarily results that the defects resulting from the failure of the base were caused by the contractor’s failure to properly construct said “improvements,” and that he is liable therefor. Moreover, the original plans and specifications bound the bidder to use proper workmanship, material, methods, and processes in the construction of the improvements, regardless of whether his bid was one with or without maintenance. If the city had accepted the bid without maintenance, and a defect had arisen by reason of improper workmanship, materials, methods, or processes, the contractor would have been liable therefor. There'must have been some additional consideration for the city’s agreement to pay the extra six cents per square yard. We are forcéd to the conclusion that this extra compensation was paid in consideration of an unconditional guaranty of maintenance for a period of five years, regardless of the cause of the defect.

There is no rule of law which would prevent a contractor from guaranteeing against all defects whatever their origin — whether they arise from defects in the plans or defects in the soil upon which the improvements are to be erected. Such contracts have been sustained by numerous decisions. 9 C. J. 754; Lonergan v. San Antonio Trust Co., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803; Mitchell v. Hancock County, 91 Miss. 414, 45 So. 571, 15 L. R. A. (N. S.) 833, 124 Am. St. Rep. 706; City of Lake View v. MacRitchie, 134 Ill. 203, 25 N. E. 663; Ingle, Executor of Dermott v. Jones, 69 U. S. (2 Wall.) 1, 17 L. Ed. 762; Cameron-Hawn Realty Co. v. City of Albany, 207 N. Y. 377, 101 N. E. 162, 49 L. R. A. (N. S.) 922.

The contract provided that upon completion of the improvements the contractor would execute and deliver to the city a bond with proper sureties guaranteeing said improvements .for a period of five years. Such bond was executed and delivered to the city, binding the contractor to repair all defects in said paving “occasioned by improper workmanship and materials,” but it did not specifically guarantee against defects resulting from the failure of the base. It is the contention of the appellant that, upon the execution and delivery of the bond and the acceptance thereof, said bond substituted the original contract and constituted a novation thereof, and amounted to an interpretation of the original contract to the effect that the contractor should be liable only for defects occasioned by improper workmanship and materials, and, since the bond did not specifically guarantee against defects resulting from a failure of the base, the appellant cannot be held liable therefor. In the first place, as hereinbefore shown, we think that under the evidence, as found by the jury, the failure of the base was occasioned by improper workmanship and materials used in the construction of the improvements, and that under the provisions of the bond the appellant is liable for such defects. Therefore, if the bond be construed as a substitution for or a novation, or as an interpretation of, the contract, the appellant would still be liable. However, we do not believe that the acceptance of the bond can be given the effect contended for by appellant. The suit was brought on the original contract and not on the bond. The appellant pleaded substitution and novation, but requested no issue thereon. In order for one contract to constitute novation or substitution for a prior one, it is necessary that both parties so intend. Such intention is never presumed. It must either appear that the new contract is so radically different from the old one that it necessarily supersedes the same as an entirety, or there must be sufficient evidence toi support a finding that both parties so intended. Austin v. Guaranty State Bank (Tex. Civ. App.) 300 S. W. 129, par. 9; Kohn v. Zaludek (Tex. Civ. App.) 38 S.W.(2d) 110. If there is evidence sufficient to raise the issue of such intention, and the evidence is not so convincing that reasonable minds cannot differ, the issue must be submitted to the jury. Hall v. First State Bank (Tex. Civ. App.) 4 S.W.(2d) 253. Since no issue of substitution or novation was submitted or requested by appellant, it will be presumed that this defense was waived.

The mere fact that the city was willing to accept from the contractor a bond less onerous than the original contract did not relieve the contractor from the obligations assumed in his original contract. The contract and the bond were separate obligations. While the bond may have limited the liability of the surety, it did not affect the liability of the contractor under his original contract. Milske v. Steiner Mantel Co., 103 Md. 235, 63 A. 471, 5 L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354; Chamberlain v. Fox (Tex. Civ. App.) 54 S. W. 297; Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125; Cohen v. Munson, 59 Tex. 236.

The jury, among other findings, found in answer to special issue No. 8 that the contractor used too much oil in mixing the asphalt, and, in answer to special issue Ño. 11, that he did not use enough oil in mixing the asphalt. The appellant contends that this constitutes such a conflict in the answers of the jury as to prevent the rendering of a judgment ©n the verdict. The verdict of the jury in answer to any issue must be interpreted in the light of the pleadings and the evidence. Any apparent conflicts in the finding of the jury should be reconciled if this can be reasonably done in the light of the pleadings and evidence. Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015, par. 1; Texas Indemnity Ins. Co. v. Bridges (Tex. Civ. App.) 52 S.W.(2d) 1075, par. 9; Bragg v. Hughes (Tex. Civ. App.) 53 S.W.(2d) 151, par. 3. The plaintiff alleged that the contractor did not use proper materials, workmanship, methods, and processes in constructing the improvements, and that such failure caused the defects in the paving, and the jury so found. There was evidence that at times the contractor used too much oil and at other times not enough. When viewed in the light of this evidence, the verdict should not be construed as finding that at all times the contractor used too much oil and at all times too little oil, but rather that at times too much oil was used and at other times not enough oil. Moreover, the finding of the jury that the defects were due to the use of defective processes, etc., was a finding on the ultimate or controlling issue in the case. The issues as to the particular manner or respect in which the processes as used were defective were evi-dentiary issues, and the findings of the jury in answer thereto become immaterial. The same thing is true of other alleged conflicts in the verdict.

The contract provided that, if the paving became defective within said five-year period, the city should notify the contractor of such defects, and that he should have a reasonable time in which to repair same. The appellant complains of the action of the court in admitting in evidence the letter from the city, together with the report of the city engineer specifying the defects in the paving needing repairs, which were sent to the contractor notifying him to repair said defects. These instruments were admissible for the purpose of showing nbtice to the contractor. The trial court limited the evidence to that purpose. In this there was no error.

The appellant, by numerous bills of exceptions, complains of the conduct of counsel for appellee in the presence of the jury during the trial of the case. It is appellant’s contention that counsel for appellee throughout the trial of the cause, by the manner of his intei^’ogation of the witnesses, objections to, and comments on, the evidence, and by side-bar remarks, persistently and consistently attempted to impugn the motives of the defendant and of all those who testified in his behalf, for the fixed purpose of inducing the jury to decide the case on prejudices and hatreds rather than on the evidence. We have ex-«mined tiie record very carefully in this respect, and have concluded not to reverse the case on account of these alleged errors. We deem it proper, however, to state that we do not approve of the side-bar remarks indulged in hy counsel for appellee, nor of the insinuating questions as propounded to the witnesses for the appellant in this case. Under a different state of facts, such conduct might be deemed so prejudicial as to require a reversal of the case.

We have examined all other assignments, and, finding no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    HUFF v. MATULA.
    No. 9040.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1933..
    Hicks, Dickson, Bobbitt & Lange, of San Antonio, for appellant.
    Will H. Radford and W. T. Scarborough, both of Kenedy, for appellee.
   SMITH, Justice.

This appeal is from a judgment rendered in favor of H. N. Matula against R. O. Huff, as administrator de bonis non of the estate of A. Y. Baker, deceased. It was alleged that Baker, as sheriff of Hidalgo county, had failed to execute or make due return of an order of sale issued upon a judgment rendered in the county court of Karnes county and directed to the sheriff of Hidalgo county. The action was in the form of a motion filed in the original suit, upon the authority of articles 3825 and 3826, R. S. 1925, as follows:

Article 3825: “Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.”
Article 3826: “Failure to Return Execution. —Should an officer neglect or refuse to return any execution as required by law, or should he make a false return thereon, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs to be recovered' as provided in the preceding article.”

The record is incomplete and unsatisfactory, particularly the “agreed statement of facts” incorporated in the transcript. The whole case rests upon certain letters, return registry receipts, order of sale, judgment, and the like, none of which, or the purported contents thereof, are set out in the record, in substance or otherwise. In said “agreed statement” reference is made to appellant’s general demurrer, and appellant relies for reversal largely upon the court’s rulings thereon, but those pleadings are not incorporated in the transcript, nor is any order made concerning the general demurrer. The only defensive pleading in the record is a plea in abatement and answer of the City Central Bank & Trust Company as independent executor of the Baker estate.

It is asserted in appellant’s brief that appellant had adopted the above pleading, but the record does not show such adoption or explain the presence, or purpose, or authority of appellant in the ease. So far as the record shows, he was a complete stranger in the case when judgment was rendered against him, was never impleaded in the case, never himself appeared therein by any sort of writing until he filed a motion for new trial. It is doubtful if anything is presented for review by such a scanty record.

It seems, however, that the very meagerness of the record requires reversal. . For example, while it appears that the judgment recovered against the estate of A. Y, Baker is for an alleged dereliction of the said Baker while sheriff of Hidalgo county, yet there is no proof that Baker was ever such sheriff, and particularly it is not shown that he was such at the time of the alleged dereliction. This failure of specific proof is fatal, for in. the enforcement of such a drastic remedy as that pursued here the procedure therein must be strictly construed and pursued, and mere presumptions or inferences may not be invoked to sustain the penalty fixed by the statute. Hamilton v. Ward, 4 Tex. 356; J. M. Radford Grocery Co. v. Owenby (Tex. Civ. App.) 34 S.W.(2d) 385.

So was the evidence insufficient, in that it nowhere appears that the order of sale was sent to Baker, or received by him. The agreed statement shows that the order of sale and numerous letters were sent by mail to the sheriff of Hidalgo county, and postal registry receipts therefor were returned duly signed, but it does not appear that Baker was in fact sheriff at that or any other time, or that he received those papers'or signed the receipts therefor in person or by deputy. Obviously, such record does not' adequately support a judgment based upon such a harsh remedy as that invoked here.

Appellant contends that the cause of action asserted does not survive the death of the person accused of dé;-eliction, but we overrule that contention. The alleged injury being to the property rather than to the person of the complainant, an action thereon for damages survives, although purely statutory and somewhat penal in its nature. 1 Tex. Jur. p. 30, § 13.

The judgment is reversed, and the cause remanded.


text:
    SUPERIOR FIRE INS. CO. v. LEAL.
    No. 1320.
    Court of Civil Appeals of Texas. Waco.
    March 16, 1933.
    Rehearing Denied April 13, 1933.
    T. M. West and Nat Hardy, both of San Antonio, for appellant.
    Ingrum & Smith and Ben S. Morris, all of San Antonio, for appellee.
   ALEXANDER, Justice.

Lorenzo Leal sued the Superior Fire Insurance Company, Fred Collier, Rosa Lee Collier, and Albaugh-Wright Lumber Company, and alleged that on March 25, 1930, Fred Collier and Rosa Lee Collier executed and delivered to the plaintiff their note in the sum! of $1,950, bearing 8 per cent, interest, providing for the usual 10 per cent, attorney’s fees, and secured by a deed of trust and mechanic’s lien contract on certain real property located in Airport City; that on March 26, 1930, Fred Collier executed and delivered to plaintiff another note in the sum of $100, bearing 8 per cent, interest, providing for the usual 10 per cent, attorney’s fees, and secured by a lien on the same property; that on the 4th day of June, 1930, the defendant insurance company executed and delivered to Fred Collier its policy of insurance covering the building located on the front end of the lot in question, insuring said Collier against loss by fire in the sum of $2,000'; that on the same day the insurance company executed and delivered to Fred Collier its policy in the sum of $1,500 insuring him against loss by fire on the building located on the rear end of said lot. Both of said' buildings, were under construction at the time the policies were issued. It was further alleged that the loss payable clause or niortgage clause in each of said policies was in favor of the plaintiff as his interest might appear. The plaintiff alleged failure to pay the notes, the destruction of the two houses by fire and the filing of proofs of'loss, and sought to recover from the insurance company so much of the proceeds due under said insurance policies as would.be sufficient to pay the amount of said notes, interest, and attorney’s fees. It was alleged that Fred Collier, Rosa Lee Collier, and the lumber company were claiming some interest in the proceeds due under said insurance policies. The trial before the court without a jury resulted in a judgment for the plaintiff against the insurance company, the material part of the judgment reading as follows: “* * * That the plaintiff, Lorenzo Leal, do have and recover of and from the defendant Superior Fire Insurance Company the sum of Two Thousand Three Hundred Ninety-six and 43/100 Dollars ($2,396.-43), being the principal and interest due up-' on indebtedness of said Fred Collier secured by liens upon the property covered and insured by the fire insurance policies of the said defendant Superior Fire Insurance Company sued upon herein; and that said plaintiff, Lorenzo Leal, do have and recover of and from the said defendant Superior Fire! Insurance Company the further amount of Two Hundred Thirty-nine and 64/100 Dollars ($239.64), being the attorney’s fees provided for in the notes evidencing said indebtedness. * * * ” The insurance company appealed.

The trial court did not file any findings of fact or conclusions of law. Only two witnesses, Fred Collier and the insurance adjuster, testified as to the amount of the loss. Collier testified that the building on the front of the lot, which was insured for $2,000, was a total loss, and that the damages to the building on the rear of the lot amounted to $300. The insurance adjuster estimated the! damage to the building on the rear of the lot to be from eighty-five to one hundred dollars. If we assume that the court accepted the testimony of Collier as being correct, the insurance company was liable for a total loss of the building located on the front end of thq lot in the sum of $2,000, and the sum of $300, that being the amount of the damage to the building on the rear end of the lot. In addition, the insurance company was liable for interest on said sum of $2,300 at 6 per cent, per annum from January 5, 1931, sixty days after filing proof of loss, to December 16, 1931, the date of the judgment, making the total amount of $2,434.16 as the extent of the insurance company’s liability. The court rendered judgment for a total sum of $2,636.07. The judgment, therefore, is not supported by the evidence. If the trial court had filed findings of fact so that we could ascertain the amount of the loss sus-tained as the result of the fire, we could reverse and render the judgment for the correct amount, but, since the evidence was conflicting and no such findings were filed, we must reverse and remand the cause for another trial.

On, the date the judgment was rendered, Collier was indebted to the appellee as principal and interest on the notes in question in the sum of $2,214.40. The appellee contends, and the trial court was evidently of the same opinion, that, since the total amount of the principal and interest due on Collier’s indebtedness to appellee was within, or less than, the amount of the lossl sustained under the two policies, the appellee was entitled to recover, in addition to the principal and interest due on said notes, the 10 per cent, attorney’s fees provided for therein, even though the total of said indebtedness with the attorney’s fees exceeded the amount of the loss sustained under the policies. In other words, appellee contends that his rights are fixed by the terms of the notes executed by Collier, and, since ¿Collier was liable for attorney’s fees upon his failure to pay the indebtedness, the insurance company is likewise liable for such attorney’s fees even though the debt with the attorney’s fees would exceed the damage caused by the fire. We cannot sustain this contention. The terms of the notes executed by Collier determined the extent of Collier’s liability to the appellee, and, if such liability had not exceeded the full amount of the loss sustained under the policies, the appellee would have been entitled to recover the full amount of the principal, interest, and attorney’s fees as provided in the note; but the terms of the policies determined the extent of the insurance company’s liability thereunder. In no event could the insurance company be held liable for more than the amount which it agreed to pay under the policies, regardless of the terms of the agreement between Collier and appellee. It agreed to pay all direct loss or damage to the buildings by fire not exceeding the face value of the policies. The amount of damages caused by the fire fixed the maximum for which the company was liable, and its liability could not be enlarged by proof that Collier’s indebtedness to appellee exceeded this amount. 26 C. J. 360; 14 R. C. L. 1367, § 536.

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


author: BOND, Justice.

text:
    NORTH TEXAS LOAN & TRUST CO. v. CITY OF DENISON et al.
    No. 11124.
    Court of Civil Appeals of Texas. Dallas.
    March 18, 1933.
    John T. Suggs, of Denison, and John T-Suggs, Jr., of Dallas, for appellant.
    Hamp P. Abney, of Sherman, for appellees.
   BOND, Justice.

The city of Denison, in compliance with the terms of chapter 11, title 22, R. C. S. 1911 (article 1008 et seq.) and the charter of said city, determined the necessity for the improvement of North Houston street, and on December 16, 1921, by ordinance and in accordance with its authority, and in furtherance of such improvement, levied a special assessment against certain property situated, in said city and abutting on said street, being south 100 feet of lot 1, block 11, original town plat of said city, and against J. F. Johnson, the owner of said property.

In consideration for the paving and otherwise improving of said street and the property abutting thereon, under the terms of a contract between the city and the Kaw Paving Company, and collateral to and cumulative of the obligations initiated by said city,. J. F. Johnson and wife, Sarah E. Johnson,, on April 3, 1922, executed a mechanic’s paving lien contract to the Kaw Paving Company, in which they agreed to' the assessment made by said city against said premises, and authorized the city to issue an assignable certificate to said paving company, in. the sum of $557.50, in accordance with the ordinances and contract theretofore made by the governing body of said city. This mechanic’s lien contract was, on July 7, 1922, duly recorded in the mechanics’ lien records of Gray-son county.

In obedience to and in accordance with said ordinances, contract, and mechanic’s lien agreement, the Kaw Paving Company paved said street and improved said property, and the governing body of said city accepted said improvement and issued the certificate. The certificate recites that the improvements were completed and accepted May 26,1922.

At the time of the passage of the initial ordinance creating the assessment against said property, and at the time the mechanic’s paving lien was created, the property improved was the homestead of J. Fi Johnson and wife, and there existed thereon a prior recorded vendor’s lien, executed on September 30, 1920, by J. F. Johnson to Maude T. Burson, to secure a note in the sum of $1,500, given as part of the purchase money for the property. Said vendor’s lien covered not only the lot abutting on said improved street, but, in addition thereto, two adjoining lots, Nos. 2 and 3, in said block. On May 19, 1922, said vendor’s lien and note were transferred to R. D. Beirne.

On May 24, 1922, J. P. Johnson and,Sarah E. Johnson, in consideration for certain other improvements upon said three lots, executed to Deffebaeh Lumber Company a mechanic’s lien contract and a promissory note in the sum -of $914, which lien and note were also transferred to said R. D. Beirne.

On May 3, 1926, J. P. Johnson and Sarah E. Johnson executed to the said R. D. Beirne an extension agreement for the payment of said notes and liens, as follows:

“We, Joseph P. Johnson and wife, Sarah E. Johnson of Denison, Texas, for and in consideration of the extension of the date of maturity given us by R. D. Beirne, the owner and holder of the two promissory notes described as follows: One note for the sum of $1500.00, dated September 30th, 1920, payable to Maude T. Burson or order with interest from date at 8% per annum (interest payable monthly) principal payable in installments of $30.00 per month and secured by vendor’s and mortgage liens on the South two-thirds (100 feet) of Lots numbers One, Two and Three, of Block number Eleven of the original town plat of the City of Denison, in Grayson County, Texas. The same being more fully described in a deed from Maude T. Burson to Joseph P. Johnson of same date and recorded in Yol. —- on page — of the Deed Records of Grayson County, Texas.
“Also one note for the sum of $914.00 dated May 24, 1922, payable to Deffebaeh Lumber Company or order with interest from date at the rate of 10% per annum (interest payable monthly) principal payable monthly, including interest at the rate of $30.00 or more, and secured by mechanic’s lien contract on the above described property; the same being more fully described in a mechanic’s lien contract of same date and recorded in Vol. 10 on pages 39 to 42 of Mechanic’s Lien Rec-ords of Grayson County, Texas.
“Both of said notes having been duly and legally sold, assigned and transferred to said R. D. Beirne, who is now the legal owner and holder of same.
“Now, therefore, in consideration of the premises, we Joseph P. Johnson and wife, Sarah B. Johnson, do hereby renew and promise to pay said notes and liens in accordance with their tenor and effect less the credits and payments made by us on same. The first note mentioned above is signed by Joseph P. Johnson only; the second note mentioned above ($914.) is signed by both of us, Joseph P. Johnson and Sarah E. Johnson.”

Some time prior to the institution of this suit, R. D. Beirne died testate, appointing the North Texas Loan & Trust Company executor and trustee of his estate, and on May 2, 1930, said J. P. Johnson and Sarah E. Johnson executed to said trustee and executor a further extension of said notes and liens, as follows:

“Whereas, R. D. Beirne, deceased, in his life time was the owner by proper transfer of certain indebtedness secured by mechanic’s lien contract on the South One Hundred (100) feet of Lots Nos. One, Two and Three, in Block No. Eleven, original town plat, Deni-son, Grayson County, Texas, said contract being recorded in Vol. 10, page 39, and the further indebtedness secured by valid vendor’s and mortgage lien on said real. estate, and debtors executed their certain extension agreement to R. D. Beirne, recorded in Vol. 318, page 570, and whereas said debtors now desire a further extension for the time of payment of said indebtedness;

' “Now, therefore, we, Joseph P. Johnson and Sarah E. Johnson, do hereby acknowledge and admit that there is now owing and unpaid on said lien secured indebtedness the principal sum of Two Thousand Six Hundred and Thirty-Pive and 05/100 ($2,635.05) Dollars and in consideration of the granting of the extension desired we do hereby promise to pay said sum one year from date to the order of North Texas Loan & Trust Co., executor, with interest thereon from the 4th day of March, 1930, at tho rate of ten per cent per annum and have this day executed our certain renewal note evidencing the terms of said extension. We further agree that all liens now existing against said real estate and the terms, conditions and provisions of all instruments creating said liens or evidencing the same and existing for the security of the payment of said indebtedness are hereby continued in full force and effect for the security of the payment of said indebtedness extended as above set forth.”

The City of Denison, for the use and benefit of the Kaw Paving Company, instituted this suit in a district court of Grayson county on the paving certificate, and for a foreclosure of the paving liens created by and arising out of the said paving ordinances, contract, and mechanic’s paving lien executed by the owners against the property covered by said proceedings and instruments.

The North Texas Loan. & Trust Company, as executor and trustee, intervening in the suit, denied the validity of the paving lien and its priority over the pre-existing vendor’s lien, and the mechanic’s lien, executed to Deffebaeh Lumber Company, and sought judgment against the obligors, J. F. Johnson and Sarah E. Johnson, for the value of its notes, interest and attorney’s fee, and a foreclosure of its liens on the three lots described in the lien agreements.

,T. E. Johnson and Sarah E. Johnson answered, confessing judgment as to the inter-vener’s pleas, and denied the existence of the paving lien on said property.

The case was submitted to the court without a jury, and judgment rendered decreeing the extension agreements invalid, the priority of the paving lien over that of the intervener’s vendor and mechanic’s liens, and allowing plaintiff, city of Denison, to recover, for the use and benefit of the Kaw Paving Company, the sum of $805.47, the amount of principal and interest due on the certificates, and a foreclosure of its paving lien on the south 100 feet of lot 1 in block 11, O. T. P. addition to said city, and as to the intervener and defendants, J. E. Johnson and Sarah E. Johnson, subordinating their respective rights and claims to that of said city. Erom the judgment thus rendered, intervener has appealed.

Under assignments of error and appropriate propositions, appellant assails the judgment of the trial court, contending that the instru; ments dated May 3, 1926, and' May 2, 1930, were each valid as extension agreements to pay the debt and liens therein mentioned; that the debt and liens were not barred by the four years’ statute of limitation; and that appellee’s paving lien was not first and superior to the liens of appellant on the lot described in the paving certificate.

It might be conceded that, according to the tenor of said extension agreements, the amount and date of maturity of the debt are vague, indefinite, and lacking in mutuality, but they describe the original vendor’s lien, the mechanic’s lien, the maker, payee, amount, terms of payment, and the realty, and identify the transfers to Beirne. They pronounce the intention of the parties thereto to “renew and extend” the pre-existing debt and liens on the property therein described. The recitations therein, “to pay said notes and liens in accordance with their tenor and effect, less the credits and payments made by us on same,” are not sufficient to vitiate the instruments as renewals of the debt barred by the four-year period of limitation.

The recorded extension agreements are sufficient as an indicia or key whereby the effect and extent of the covenants therein may be determined. Where no time is specified for the payment of a debt, or the time specified is so indefinite, vague, and uncertain that it cannot be determined, or the time relates back to an impossible date as in this instance, the payment is presumed to be due on demand. Chambers v. Hill, 26 Tex. 472; Crenshaw v. Stallings (Tex. Civ. App.) 222 S. W. 653.

We conclude that the instruments in question were not invalid for the uncertainty of the date of maturity, and/or the amount of the indebtedness, but that they operate as .renewals and extensions of the indebtedness and liens.' Having that effect, the debt and liens were continued in full force and effect against the south 100 feet of lots Nos. 1, 2, and 3 in said block.

The renewals and extensions, being valid as between the parties, cannot be held ineffective as to appellee, who acquired its rights in the property with notice of the vendor’s lien which was outstanding and not barred by the statute of limitation. Appellee was not an innocent lienholder for value. and, as said in the case of Hill State Bank v. Schindler (Tex. Civ. App.) 33 S.W.(2d) 833, 837: “When all of the articles of our statute fixing the period of limitation for the enforcement of liens upon land are considered, it is apparent that the primary if not the sole purpose of these statutes is to protect innocent purchasers or lienholders from prior liens upon the land when the debts such prior liens were given to secure appear to be barred by the .recorded liens. * * * ”

Thus we conclude that appellant’s vendor lien is a prior and superior lien to that of ap-pellees’ paving lien upon the property impressed with the lien.

• Appellant further contends that it has a prior lien to that of appellees’ paving lien, based upon the mechanic’s lien contract, executed by the Johnsons to Deffebaeh Lumber Company. To this contention we cannot agree. The city entered into a program for the improvement of said street, made the contract with the paving company for the improvements, and passed the necessary ordinances to carry such improvements into effect, lacking only the necessary step to impress the paving lien on the Johnson homestead. This step, however, was supplied by the owner of the homestead in executing a mechanic’s contract ; an integral part of the legal lien thus created. This contract was collateral to and cumulative of all the proceedings with reference to making said improvements. The acts of the city were the initial steps toward the creation of the lien, and the mechanic’s contract vitalized the acts and created the lien, conditioned only by the completion of the improvements. The mechanic’s contract alone was not sufficient to impress the lien on the homestead, nor were the ordinances and contract of the city. The lien could only be created by a combination of events; the ordinances of the city, the mechanic’s contract, and the completion of the improvements. The subsequent lienholder, having knowledge of the existence of the ordinances and the contract for the improvement, is in no position to claim a prior lien. There is no contention that appellant is an innocent lienholder, or that the Deffebaeh Lumber Company was such. The only contention being that the lumberman’s mechanic lien agreement was recorded on May 24, 1922, while the homestead owner’s prior agreement was not recorded until the following July 7th.

The registration statutes (Vernon’s Ann. Civ. St. art. 6624 ⅛ seq.), requiring recordation of instruments affecting land are primarily to protect innocent purchasers or lien-holders, to give notice to those dealing with the land of the rights of others, and prevent wrongs and injustice being done. They are not instruments of wrong to enable one to obtain a right in land which he knew belonged to another, merely because the owner failed to place the evidence of his right upon record. Appellant and its predecessor in title, the Deffebaeh Lumber Company, knew of the ordinances of the city and the. contract with the Haw Paving Company, and they evidently knew that the pavement was in place when they acquired the lien. The certificate in evidence, which we must give the utmost verity, states that on May 26, 1922, the pavement was completed and accepted, two days immediately preceding the date of appellant’s contract. We conclude that appellant’s mechanic lien is secondary and inferior to that of appellees’ paving lien on south 100 feet of lot No. 1 in said block.

The case being fully developed, the judgment of the court below should be reformed, and, in consequence thereof, appellant’s vendor lien, to secure the sum of $986.76, is the first lien, and its mechanic’s lien to secure the sum of $1,604.98 is the second lien against south 100 feet of lots Nos. 2 and 3 in block No. 11, O. T. P. addition to the city of Denison; the said vendor’s lien is a first and superior lien to appellees! paving lien against south 100 feet of lot No. 1 in said block, and the said mechanic’s lien is secondary and inferior to the paving lien against said lot No. 1. The orders of sale shall direct that lots Nos. 2 and 3 be first sold and the proceeds of sale be applied first to appellant’s vendor liens, and any balance remaining be applied to appellant’s mechanic lien, and afterwards lot No. 1 be sold and proceeds of the sale be applied, first on any balance unpaid on said vendor’s lien, second to the said paving lien, and third to said mechanic’s lien.

Erom what we have said, the judgment is reformed, and, as reformed, the case is affirmed. Cost of appeal taxed against appel-lees.

Reformed and affirmed.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HILL BROS.
    No. 1345.
    Court of Civil Appeals of Texas. Waco.
    March 23, 1933.
    R. B. Cross, of Gatesville, for appellant.
    T. R. Mears, of Gatesville, for appellees.
   ALEXANDER, Justice.

Hill Bros, brought this suit against the St. Louis Southwestern Railway Company of Texas for damages to a shipment of cattle shipped' from Gatesville to Fort Worth. The plaintiff alleged that the cattle were in good condition when delivered to the railway company, but that, when they were delivered at Fort Worth by the railway company, one cow was dead and several others injured. The court submitted the case to the jury on special issues, and, upon the answers of the jury, rendered judgment for plaintiff for $176. The defendant appealed.

The court submitted the issue of damages to the jury as follows: “What amount of money, if any, paid now, would reasonably compensate the plaintiff for the damage, if any, sustained by them in the death and injury to their cows?” To which the jury answered: “$175.00.”

No charge was given by the court instructing the jury as-to the measure of damages to be applied. The appellant objected to the court’s charge as follows: “Defendant objects and excepts to special issue No. 2 submitting the measure of damages herein and says that such measure there submitted is erroneous; and requests that the issue be submitted as to the market value of the cattle in the condition they arrived at their destination as compared to the condition in which they should have arrived but for some negligence attributable to the defendant.”

In addition, the appellant tendered the following issue, which was refused by the court: “What was the market value per hundred weight of the plaintiffs’ cattle in the condition that they were received at the point of destination as compared to their value in the condition they should have been received had there been no injuries?”

The general rule is that the court should instruct the jury as to the measure of damages to be applied, and it is error for the court to fail to do so. 13 Tex. Jur. 429, par. 254; 3 Tex. Jur. 824; International-G. N. R. Co. v. Casey (Tex. Com. App.) 46 S.W.(2d) 669, par. 13; International-G. N. R. Co. v. King (Tex. Com. App.) 41 S.W.(2d) 234, par. 3; Texas Nursery Co. v. Knight (Tex. Civ. App.) 292 S. W. 588, par. 2, and cases there cited.

This rule has been applied in actions against railway companies for damages to cattle injured in transit in the following cases: Houston & T. C. R. Co. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073, 1076; Kansas City, M. & O. R. Co. v. Worsham (Tex. Civ. App.) 149 S. W. 755, par. 6; Quanah, A. & P. R. Co. v. Galloway (Tex. Civ. App.). 154 S. W. 653, par. 1; Panhandle & S. F. R. Co. v. Parrish (Tex. Civ. App.) 281 S. W. 887, par. 1; Texas & Pacific R. Co. v. Boaz (Tex. Civ. App.) 22 S.W.(2d) 492, par. 2.

In the case of Houston & T. C. R. Co. v. Buchanan, supra, Chief Justice Fisher said: “The charge of the trial court does not submit to the jury any rule as to the measure of damages. As to whether damages have been sustained is a question of fact for the jury. The rule to measure these damages is one of law, and it is impossible to conceive how a jury can correctly apply the rule of law in measuring the damages unless the court instructs them as to the rule in its charge. The failure to do this is more than a mere omission, and we regard it as positive error, in submitting a case of this kind, for the charge to fail to inform the jury as to the rule of law that should govern them in determining from the facts the amount the plaintiff might be entitled to recover.”

In Kansas City, M. & O. R. Co. v. Worsham, supra, the court held that the failure to charge upon the measure of damages in such a case is affirmative error, and the defendant is not required to ask a special charge before it can be heard to complain of the omission. Whether or not this would be true under the present statute, it is not necessary for us to determine, because in this case the appellant not only objected to the charge for the failure to instruct on the measure of damages, but tendered a charge thereon. It is true that the issue as requested was not in the exact form as required, but, since the court wholly failed to charge on the measure of damages, the issue as tendered, together with the objection to the charge, was sufficient to call the matter to the attention of the court, and to require the court to prepare and present a correct charge thereon. Speer’s Law of Special Issues, p. 383, § 264; Graves v. Haynes (Tex. Com. App.) 231 S. W. 383, par. 1; Texas Power & Light Co. v. Culwell (Tex. Com. App.) 34 S.W.(2d) 820, par. 5; Crawford v. El Paso Sash & Door Co. (Tex. Com. App.) 288 S. W. 169, par. 2; Speed v. Gilliland (Tex. Civ. App.) 18 S.W.(2d) 762, par. 7 (writ refused); Western Union Tel. Co. v. Coleman (Tex. Civ. App.) 284 S. W. 279, par. 2.

For the error of the court in failing to instruct the jury as to the measure of damages to be applied, the judgment of the trial court is reversed, and the cause remanded for a new trial.


author: O’QUINN, Justice.

text:
    GRIMES et al. v. WALTON et al.
    No. 2316.
    Court of Civil Appeals of Texas. Beaumont.
    March 9, 1933.
    Lewis Lanier, of Jasper, for appellants.
    Garland Smith, of Jasper, for appellees.
   O’QUINN, Justice.

Walton sued J. L. Grimes and his wife, Esther Grimes, to recover on a promissory note in the sum of $170, dated November 1, 1926, due November 1, 1927, payable to A. N. Stone, and to foreclose a deed of trust lien on thirty acres of land executed to secure the payment of said note. His petition was (filed November 2, 1931.

November 22, 1927, A. N. Stone, by written assignment, transferred the note and deed of trust lien to J. T. Martin, who, on October 5, 1931, transferred same to appellee J. 0. Walton. Stone died April 8, 1931, testate, and Jack Ward was duly appointed and qualified as executor of his estate, May 6, 1931.

November 27, 1931, Walton filed his amended petition making Martin and Ward, executor of the estate of Stone, parties defendant.

Defendants Grimes and wife answered by general demurrer, general denial, and specially pleaded the statute of four years’ limitation, article 5520, R. S. 1925 (as amended by Acts 1931, c. 136, § 2 [Vernon’s Ann. Civ. St. art. 5520]) against both the note and the deed of trust lien.

Defendants Martin and Ward answered admitting the facts alleged in plaintiff Walton’s amended petition but specially plead that they were not primarily t liable on the note sued on, but were liable only as indorsers thereon, and prayed that, in the event judgment was rendered against them in any sum, they have judgment over against J. L. Grimes and his wife, Esther Grimes, for said sum and for a foreclosure of the deed of trust lien, and relief generally.

The defendants Grimes and wife answered the plea of defendants Martin and Ward by general demurrer, general denial, and by special plea of the statute of four years’ limitation against the note and the deed of trust lien.

The case was tried to the court. Defendants Grimes admitted that the note had not been paid. Over the objections of said defendants the note and the deed of trust, together with the several transfers thereof, were admitted in evidence, and the court rendered judgment denying appellee Walton any relief against defendants J. L. Grimes and his wife, Esther Grimes, because it appeared that- the note and lien were .barred by the four-year statute of limitation, as to said defendants, but granted judgment in favor of Walton against defendants Martin and Ward on the note, and a foreclosure of the deed of trust lien on the land; and, in the event Martin was required to pay the judgment, that he have judgment against the estate of Stone, and that if said estate had to pay the judgment, then that said estate have judgment over against the defendants J. L. Grimes and his wife, Esther Grimes, for the amount of the note and for foreclosure of the deed cif trust lien.

Motion for a new trial was overruled, and the defendants J. L. Grimes and wife bring this appeal.

The note sued on was dated November 1, 1926, and was due and payable on November 1, 1927. The deed of trust was given to secure the payment of the note. The suit was filed for judgment on the note and for foreclosure of the deed of trust lien on November 2, 1931. Article 5520, R. S. 1925, as amended by Acts 1931, c.-136, § 2 (Vernon’s Ann. Oiv. St. art. 5520) provides that actions to recover real estate by virtue of superior title retained by the vendor in a deed of conveyance or purchase money note, or actions for the foreclosure of vendor’s liens on real estate, or actions to foreclose deeds of trust or mortgage liens on real estate, shall be commenced and prosecuted within four years after the cause of action has accrued, and not afterward. This action falls within the class of actions there enumerated, and it appearing that the cause of action accrued on November 1, 1927, the due‘date of the note, and suit being filed November 2, 1931, the cause of action was barred by the statute of limitation. The lien existing by virtue of the note was also barred. The judgment of the court denying appellee J. 0. Walton judgment against appellants J. L. Grimes and wife, Esther Grimes, because said note and lien were thus barred, was correct, and that part of the judgment is affirmed. Article 5520, R. S. 1925 (as amended by Acts 1931, 42d Leg., p. 230, c. 136, § 2 [Vernon’s Ann. Civ. St. art. 5520]). Eastland Lodge 467, A. F. & A. M. v. Stubblefield (Tex. Civ. App.) 13 S.W.(2d) 123 (writ refused); Fleming v. Todd (Tex. Civ. App.) 42 S.W.(2d) 123.

But it is insisted by appellee Walton that the judgment must be affirmed because Stone transferred the note and lien to Martin on November 22,1927, and that Stone died April 8, 1931, and Ward, executor under Stone’s will, did not qualify until May 6, 1931, the statute of limitation did not run during the twenty-eight days between April 8, 1931, and May 6, 1931, and as he sued Ward, Stone’s executor, and Martin on November 27, 1931, four years had not elapsed from the date of the transfer from Stone to Martin, November 22, 1927, and his cause of action against the estate of Stone and against Martin, as indorser of the note by transfer, was not barred; and, he being entitled to judgment against the indorsers of the note, they were entitled to judgment against their principals, and hence to judgment against appellants J. L. Grimes and his wife, Esther Grimes, and to a foreclosure of the deed of trust lien.

This contention is not sound. As we have above held, the note and lien were barred by the four years’ statute of limitation. Had Stone lived and continued to be the owner and holder of the note, at the end of four years from its due date, November 1, 1931, he could not have had judgment on the note, nor foreclosure of the deed of trust lien. Subsequent holders of the note and lien had no better or greater right than did the original holder. The statute of limitation, article 6520, was duly pleaded by the defendants Grimes and wife against the cause of action asserted by appellee Walton, and also against that asserted by Ward, Stone’s executor, and Martin. As the original holder of the note and lien could not have, as against the plea of limitation, maintained suit on the note and lien, neither can any of the subsequent holders do so, for the note and lien being barred in the hands of one, they were barred in the hands of the other. So the judgment in favor of Stone’s executor, Ward, against appellants, the Grimeses, on the note and for foreclosure of the deed of trust lien, was unauthorized; and is here reversed and rendered for appellants. Likewise, the judgment in favor of Walton and Martin for foreclosure of the lien is reversed and declared of no force. This must be so, .because article 5520, R. S. 1925 (as amended by Acts 1931, 42nd Leg., p. 230, c. 136, § 2 [Vernon’s Ann. Civ. St. art. 5520]), provides: “* * * No power, of sale conferred by any deed of trust or other mortgage on real estate executed on or subsequent to the 1st day of July, 1913, or that may hereafter be executed, shall be enforced after the expiration of four (4) years from the maturity of the indebtedness secured thereby, and any such sale under such powers after the expiration of such times, shall be void, and such sale may ,be enjoined and the lien created in any such deeds of trust or mortgages * * * and as to all deeds of trust or mortgages as were executed on or subsequent to the 1st day of July, 1913, or that may hereafter be executed, the lien created thereby shall cease to exist four (4) years after the maturity of the debt secured thereby.” It is seen that, under this statute, the right to a foreclosure of the deed of trust lien is specifically denied, thus destroying all right to bring and maintain a suit for the foreclosure of deed of trust and mortgage liens on real estate after the lapse of four years from the maturity of the debt, to secure the payment of which the lien was given.

Neither Ward, the executor of Stone’s estate, nor Martin, against whom judgment was rendered in favor of Walton on the note, appealed from said judgment; so as to these judgments nothing is .before us.

As above indicated, the judgment is affirmed in part, and in part reversed and rendered.


author: WALKER, Chief Justice.

text:
    UNIVERSAL CREDIT CO. v. TOWNS.
    No. 2346.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1933.

      E. L. Early and Wm. H. Russell, both of San Antonio, for appellant.
    Reed Cozart and Morriss & Morriss, all of San Antonio, for' appellee.
   WALKER, Chief Justice.

This appeal is from a judgment of county court at law No. 1, Bexar county, wherein appellee, J. W. Towns, was awarded judgment against appellant, Universal Credit Company, for $201 actual damages and $200 exemplary damages, for wrongfully “repossess^ ing” his automobile. Appellant answered by several special defenses based upon breach by appellee of the conditional sale contract under which he held the automobile, but offered proof in support only of the allegation that appellee matured the contract by defaulting in his monthly payments. It was provided in the sale contract that “at the election” of appellant, appellee’s default should mature all future payments and, in that event, appellant should have the right to seize the automobile. This defense was found by the jury against appellant.

There is no merit in any of appellant’s assignments based upon the proposition of variance between the allegations of the petition and the proof as to the date of the maturity of the monthly payments, as fixed by the sale contract. The contract was dated 2/24/1930. Appellee alleged that the monthly payments were to mature on the 24th of each month. This was also the allegation of appellant’s answer. The proof was that both parties, from the inception of the contract, until appellant seized the automobile on the 13th of July, 1930, construed the contract as maturing the monthly installments on the 24th of each month. The language of the contract was as follows: “In 12 instalments of $36.00 each on the same day of each suceessive month and commencing 3/18/30 from one month the date hereof.” The words “one month” were written in ink under the figures “3/18/30,” with a line drawn in ink separating the words from the figures, as indicated. The most that can be said in appellant’s favor is that an ambiguity existed as to the maturity date, which, however, was resolved by the parties in support of the allegations of the petition. A variance does not arise from a mere ambiguity, uncertainty, or inconsistency in the contract. 49 C. J. 817, § 1204; Lasater v. Van Hook, 77 Tex. 650, 14 S. W. 270.

As the undisputed facts are that ap-pellee paid some of the installments after their maturity date, appellant insists that this default matured all future payments. This contention is without merit because, under the terms of the contract, future payments, in the event of default, matured only on the “election” of appellant, and that election “was not exercised. There is no merit in,this contention for the further reason that appellant exercised its “election” not on the ground that appellee had been slow in his payments, but on the ground that he had “neglected to pay the delinquent installments.” As stated above, this issue was found by the jury against appellant’s contention, thus convicting it of wrongfully repossessing the automobile.

Appellant introduced in evidence a letter from appellee to it dated 7/14/30, in which he said he was preparing “to drive” to San Francisco. Appellee was then permitted to testify, over appellant’s objection, that it was not his purpose to use the car in issue in' this case. This was not error. Possibly the letter was immaterial upon any issue before the court, but as appellant offered it, appel-lee was entitled to explain it. As appellant had seized the automobile before writing this letter, it was fully advised that appellee could not use it" in his “drive” to San Francisco and, therefore, appellant was not prejudiced by appellee’s testimony that he did not intend to use the automobile.

Appellant also complains of certain voluntary statements made by appellee on cross-examination. This testimony was not error. Appellant permitted appellee to make two ór three voluntary statements without objection and did not raise the point until this character of testimony was all before the court.. On this statement, in order to predicate error, appellant was required to move to-strike the objectionable testimony, which was not done. Ft. Worth & D. C. Railway Co. v. Hapgood (Tex. Civ. App.) 201 S. W. 1040; 3 Tex. Jur. 192.

There was no error in overruling appellant’s exceptions to appellee’s petition on- the issue of exemplary damages. The exceptions were well taken and should have heen sustained but, as appellee offered no proof in support of these allegations, and as the issues thus pleaded were not submitted to the jury, the error in overruling the exceptions was rendered harmless. The issues on exemplary damages submitted to the jury were correctly pleaded and supported by the testimony.

The trial court did not commit error in compelling appellant to try the case before “a picked up jury.” The suit was filed on January 19, 1931, and tried on May 29, 1931. It had been continued several times at the request of appellant, while appellee was present and ready for trial. The jury was not demanded until the case was called for trial, at which time the regular jury had been excused for the week. Had appellant demanded the jury on the day before, at which time it knew the case was set for trial the next morning, a regular jury could have been had. The postponement of the case until the next week would probably have resulted in its continuance for the term. Under this statement, the ruling of the court forcing appellant to trial was not error. Texas & P. Railway Co. v. Coggin, 44 Tex. Civ. App. 423, 99 S. W. 1052.

From what has been said it follows that the judgment of the lower court should be. affirmed, and it is accordingly so. ordered.


author: STANFORD, Justice.

text:
    ALLEN v. FARM & HOME SAVINGS & LOAN ASS’N OF MISSOURI et al.
    No. 1331.
    Court of Civil Appeals of Texas. Waco.
    Feb. 9, 1933.
    Rehearing Denied March 30, 1933.
    Charles R. MacFarlane, of San Antonio, for plaintiff in error.
    Dilworth & Marshall, Henry C. King, Jr., and M. L. Roark, all of San Antonio, for defendant in error.
   STANFORD, Justice.

This case was filed on the 1st day of August, 1930, in the Seventy-third judicial district court of Bexar county, Tex., by Farm & Home Savings & Loan Association of Missouri against Mrs. Fannie Allen, a feme sole, as defendant, to recover from the defendant the title and possession to certain real estate in Bexar county, Tex. Prior to the filing of this suit the said Fannie Allen had exectited a deed of trust in the usual form to said Farm & Home Savings & Loan Association to secure the payment of a loan in the sum of $1,200, and she having made default in the payment of said loan, said loan company foreclosed said deed of trust lien by having said real estate sold under said deed of trust. Thereafter said loan company filed proper affidavit and procured a writ of sequestration, and the sheriff, under said writ, took possession of the property covered by said deed of trust and the defendant, Fannie Allen, failed to replevy. On the 29th day of August, 1931, the Alcalde Investment Company, a corporation, having purchased said property from said Farm & Home Savings & Loan Association, intervened. in said suit, alleging that it had acquired the property in controversy by general warranty deed dated January 20, 1931, and in said plea of intervention adopted the pleadings of the Farm & Home Savings & Loan Association and prayed for judgment against defendant, Mrs. Fannie Allen, for title and possession of the property in controversy.

The cause was transferred to the district court of Bexar county, Tex., for the Thirty-seventh judicial district, and was, on the 11th day of September, 1931, tried before said court, without the intervention of a jury. Upon hearing the evidence in said court on the 11th day of September, 1931, said court rendered judgment in behalf of the Alcalde Investment Company, a corporation, for the title and possession of said property against the said Fannie Allen. This case was tried before the court, and plaintiff in error, Mrs. Fannie Allen, obtained.no findings of fact or conclusions of law from the court, and reserved no bills of exception and made no objections to any evidence that was introduced. It will also be noted that in her pleadings, Mrs. Allen did not seek to set aside the substitute trustee’s deed, nor did she attack it by objection on -the ground that it was void on its face, and the same was admitted in evidence without any objection reserved by bill of exception, or otherwise.

It appears from the testimony that Mrs. Fannie Allen signed the note and deed of trust for the purpose of borrowing $1,200 from said Farm & Home Savings & Loan Association of Missouri; that she duly acknowledged and- delivered -same, and had it recorded; that the $1,200 was paid to Mrs. Fannie Allen or to her order, except a small amount that was retained to clear up the title; that Mrs. Fannie Allen thereafter both personally and through her attorneys made arrangements to have the various clouds removed from the title to said property, by paying various amounts of money. Mrs. Allen defended this suit mainly upon the ground that said property was her homestead, and therefore the deed of trust securing said note did not create a lien against it. The facts on this issue were undisputed and the question of invalidity, therefore, presented a question of law for the court. “A feme sole, even though the head of a family, may voluntarily mortgage her homestead,” and therefore Mrs. Allen, having been an unmarried woman at the time she executed the deed of trust to secure her note for $1,200, cannot defeat said lien on the ground that she occupied as her homestead the property on which said lien was created and had occupied same from the date of the death of her husband which occurred in 1917. Exhibit No. 12 sent up with the transcript, constitutes an affidavit by Mrs. Fannie Allen and sworn to on the 2d day of March, 1929. In this affidavit Mrs. Allen testified under oath: “Thereafter, to-wit, on December 17, 1917, the said Will Allen departed this life. I have not remarried Since the date of his death and I am a widow at this time.”

No objection was made to this affidavit and Mrs. Allen at no time testified that she had remarried since the death of her husband, Will Allen. This, we think, is a correct proposition of law. The record clearly shows that Mrs, Allen, voluntarily executed the deed of trust covering her homestead; also that the $1,200 borrowed was paid to Mrs. Allen, or to her order, and that same was her separate property, -having been deeded to her by her husband some ten or twelve years before his death; also that Mrs. Allen’s children had grown up and married and had homes of their own. Spencer v. Schell, 107 Tex. 44, 173 S. W. 867; Smith v. Von Hutton, 75 Tex. 625, 13 S. W. 18; Dabney v. Schutze (Tex. Com. App.) 228 S. W. 176; Hartman v. Thomas, 37 Tex. 90, 91; Grothaus v. De Lopez, 57 Tex. 670. Since the decisions above cited, all by the Supreme Court of Texas, the right of a feme sole, although the head of a family, to execute a voluntary mortgage on a homestead, is no longer an open question. The cases have been followed and approved and we can add nothing to the sound argument and clear expression of the principles of law as stated by the several opinions of our Supreme Court.

The plaintiff in error in various parts of her argument raises the point that the Thirty-seventh district court could not try the cause because it had been theretofore pending in the Seventy-third district court and no written order was made transferring said cause: It is true: “Where a cause is pending in one district court and upon verbal agreement or acquiescence all parties appear in another court and without objection to proceeding with the trial in the same county and proceeded to try the same in full, they are estopped to raise the question that the cause had not been -properly transferred to said court.”

The record shows that a nunc pro tnnc order was entered transferring this cause from the Seventy-third district court to the Thirty-seventh district court. The cause was tried in the Thirty-seventh district court without any order of transfer presented to the court. A judgment of the Thirty-seventh district court recited, “be it remembered that on this the 11th day of September, 1931, came regularly on for hearing the above entitled and numbered cause, which said cause was originally filed in the 73rd District Court in and for Bexar County, Texas, and transferred to this court, and came the plaintiff, Farm & Home Savings & Loan Association of Missouri by its attorney of record and announced ready for trial, and came also the intervener, Alcaide Investment Company, by its attorneys of record and announced ready for trial, and came also the defendant, Mrs. Fannie Allen in person and by attorney of record and announced ready for trial.” No bill of exception was taken to the action of the Thirty-seventh district court In trying same, nor was there any objection made by defendant Allen and her attorney to the action of the Thirty-seventh district court in trying said cause. Marx & Kempner v. Heidenheimer Bros., 63 Tex. 304; Harris v. Gregory (Tex. Civ. App.) 23 S.W.(2d) 748; Kruegel v. Daniels, 50 Tex. Civ. App. 215, 109 S. W. 1108 (writ refused); City of Corsicana v. Kerr, 75 Tex. 207, 12 S. W. 982. The above cases are conclusive on the proposition that where a cause is pending in one district court and without formal order transferring, the parties appear before another district court in the same county and announce ready for trial and proceed to trial without objection, they cannot thereafter urge that the court hearing said cause was without jurisdiction.

The plaintiff in error also raises the point that the affidavit of sequestration was improper because it was not properly sworn to. “Where a deputy district clerk takes an affidavit, it is proper for him to certify same in the name of his principal by himself as deputy, and therefore the deputy district clerk taking said affidavit used the proper form in authenticating the jurat by signing same ‘Hart McCormick, district clerk of Bexar County, Texas, by A. W. Harlos, deputy.’ ” Evans v. Ellis (Tex. Civ. App.) 257 S. W. 294. The plaintiff in error in various places in the brief complains because the officer executing the writ of sequestration was permitted, under the direction of the court and after hearing testimony, to amend and correct the clerk’s error in the writ. There is no merit in this contention. “Where a clerical error appears in a writ of process, the court may, after hearing testimony and determining same to be a clerical error, order the error corrected.”

Article 2044, Revised Civil Statutes 1925, provides as follows: “Any mistake or informality in a return may be corrected by the officer at any time under the direction of the court.”

The statement that the error in the return was purely clerical and that the writ was in fact executed on December 19, 1930, is not questioned. The proceedings for its correction were had before the court and upon the testimony the court directed the officer to amend and correct the return so that it would speak the true facts. By the very provisions of the statute above cited, this was a proper proceeding and constituted no error.

The plaintiff in error contends that there was no sufficient evidence that the original trustee in the deed of trust failed or refused to act, or that he resigned as trustee, and that there was no sufficient evidence that the substitute trustee, who made the sale, was legally appointed, and claims therefore the purported substitute trustee’s sale was void and passed no title. The original deed of trust which was introduced in evidence, provided as follows: “And it is distinctly stipulated and agreed that in case any sale or sales hereunder, all prerequisites thereto shall be presumed to have been done and performed and that in any conveyance given or executed by virtue hereof, all recitals therein may, as to the conditions, facts, advertising, posting and to the default or defaults in payment of the amounts secured or advanced or as to the breach or failure to perform any of the covenants herein contained, or of the request made upon the trustee or his substitute to enforce and exercise the powers herein granted, or as to any other preliminary act or thing done or to have been done, including inability, failure, refusal or disqualification of the original trustee to act, shall be taken in all courts of law or equity as prima facie evidence that the recitals and statements in fact so recited are true; and all the acts and deeds of the said trustee, his successor or substitute, lawfully done in the premises, are in all things by the undersigned absolutely ratified and confirmed.”

The defendant in error also introduced in evidence the substitute trustee’s deed, which reads: “Whereas, the said Lee B. Ewing on the 6th day of June, 1930, signed a written refusal to act as said trustee and his resignation from said trustee; and whereas, afterwards, to-wit, on the 7th day of June, 1930, the beneficiary in said deed of trust, the Farm & Home Savings & Loan Association of Missouri did appoint the undersigned, James K. Ross as substitute trustee to execute the purposes of said trust; and whereas, default has been made in the payment of said indebtedness and the Farm & Home Savings & Loan Association of Missouri, the holder of said note and indebtedness and deed of trust, has, since said default, requested me, the said James K. Ross, substitute trustee, to sell said property in accordance with the provisions of said deed of trust for tlie purpose of paying said indebtedness.”

No objection is shown by the statement of facts to have been made by the plaintiff in error to tbe introduction of either of these instruments, and the record discloses no bill of exception to the action of the court in admitting them in evidence, and the record .contains absolutely no testimony from any witness or from any source, purporting to discredit or question the truth of the recitals made in the substitute trustee’s deed. Adams v. Zellner, 107 Tex. 653, 183 S. W. 1143; Johnson v. Marti (Tex. Civ. App.) 214 S. W. 726; McCreary v. Reliance Lumber Co., 16 Tex. Civ. App. 45, 41 S. W. 485. Not only the authorities above cited, but there are numerous other authorities by our Supreme Court to the same effect. The holding here by our Supreme Court is no longer an open question in this state. It is evident that the trial court had before it prima facie evidence which was not rebutted to justify its implied finding of fact that the substitute trustee was legally appointed.

The plaintiff in error also in numerous places in her brief undertakes to show that the substitute trustee’s sale was made at a time when the indebtedness was not sufficiently delinquent to authorize the making of such sale. However, plaintiff in error-in the court below, not having alleged in her pleadings that said trustee’s deed was void or voidable, for such reason and not having sought to rescind or annul such substittite trustee’s deed, and not having preserved any bill of exception to the action of the trial court in receiving same in evidence, cannot raise the question for the first time on this appeal. It is also true since the deed of trust provided that all recitals in the trustee’s or Substitute trustee’s deed thereunder should be prima facie evidence of the truth thereof and the substitute trustee’s deed recited delinquencies in the payment, and this evidence was not contradicted or disputed by any evidence offered by the plaintiff, the trial court was justified in accepting such recitations as true and requiring no further proof thereon. It is also true, since the evidence does not show the exact date on which the $150.45 was applied on said note by the Farm & Home Savings & Loan Association, and since no other payments had been made by Mrs. Allen except the two payments for April and May, 1929, which were held out of the loan, the presumption is in favor of the judgment of the trial court in the absence of bills of exception, findings of fact, or conclusions of law, that the trial court found from the evidence, including the recitations in the substitute trustee’s deed, that a period of at least six months elapsed between the May, 1929, payment and the date on which said balance of approximately $150.45 was applied, and that during such period of at least six months the note had, in accordance with its acceleration and maturity clause, been duly and legally declared wholly due and payable.

The plaintiff in error in her cross-action sought to set aside the deed of trust, but dicf not seek to set aside the substitute trustee’s deed. The plaintiff in error in the court below did not object to, or take a bill of exception to the introduction of the substitute trustee’s deed in evidence. The plaintiff in error in the court below'did not in her pleadings allege that said substitute trustee’s deed was not properly made, on the ground that the note was not legally declared fully due and payable.

It will be noted that the plaintiff in error is attempting to raise a question which was not raised by the pleadings, nor was it raised by objections to the introduction of evidence, nor was it preserved by bills of exception nor by any finding of fact or conclusions of law by the trial court. The court had before it the recitations in the substitute trustee’s deed reciting that default had been made in the obligation, and that the trustee had been requested by the holder of said obligation to make the trustee’s sale, and the deed of trust provided that the recitations in such substitute trustee’s deed should be taken as prima facie evidence of the truth, thereof. It ⅛ obvious, therefore, that the trial court,. in view of the recitations in the trustee’s deed, which were not controverted by any evidence of plaintiff in error, even in the absence of exact certainty of the date on which said note was declared fully due and payable, and in the absence of the exact certainty as to the date when the credit was applied on the note, considered that the recitations- in the substitute trustee’s deed were sufficient for him to find that the sale was lawfully made. Therefore, since the plaintiff in error did not either by pleadings or evidence dispute the recitations in the substitute trustee’s -deed, nor demonstrate the • falsity of the recitations therein contained, and in'no manner raised the point in the trial court, she cannot now on appeal raise such question. :

We have not discussed all the contentions of plaintiff in error, but have considered all of them and finding no reversible error, the judgment of the trial court is affirmed.