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The negligence or breach of contract submit- to testify from his own knowledge as to what ted was solely that of delay in the transpor- was the freight rate from one point to antation, the result of which was alleged to other. As to the particular freight rate he bave been shrinkage in the cattle and loss in was testifying about, he testified he knew it market price. The defendant Texas Central because he had paid it a number of times, Railroad Company had pleaded a written con- and had been told by the agent what it was. tract confining its liability to its own line, The thirty-fourth assignment complains of which terminated at Waco. Plaintiff, as to the following testimony of witness Miller: such written contract, alleged facts and cir- “After arriving at Waco, and after having cumstances which would defeat it as the con- boarded the train on the transfer track, I tract of shipment under a uniform line of heard a man who was on the engine of the decisions in this state. The Missouri, Kan- transfer track make the following statement: sas & Texas Railway Company of Texas was 'I was called out to meet this train of the T. also a defendant, but a verdict for said com- C. R. R. Co. at 3 o'clock this morning.'” The pany was returned by direction of the court. statement of facts shows this testimony in Against the appellant the verdict was for the connection in which it was given by the $230.

witness thus: “We got to Waco about 6 in The second, third, and twenty-seventh as- the morning. When we got to Waco, they signments of error are overruled. It was, in cut our cars off this side of Waco, at the end our opinion, not necessary for plaintiff to of the Central tracks, I suppose. I crawled deny under oath the execution of the written up on the cars, and they took us over to the contract, in order to avoid it for duress, M., K. & T. I rode over on the cars. After fraud, mistake, or the like. Ry. V. Jackson, boarding the train on the transfer track, I 86 S. W. 47, 11 Tex. Ct. Rep. 855.

heard a man who was on the engine of the The propositions advanced under the sixth transfer track make the following statement, assignment are foreign to it.

to wit, 'I was called out to meet this train of Under the eighth assignment it is claimed the Texas Central R. R. at 3 o'clock this that the undisputed facts failed to show any morning.'” The tendency of this testimony damage to plaintiff's cattle while on appel- was to prove that the Texas Central Railroad lant's line; hence it was error to submit to had made an unreasonable delay of three the jury appellant's liability if the written hours before reaching Waco. It is not neccontract was found to prevail. This conten- essary to inquire into its admissibility, owtion is not substantiated. It was in evidence ing to the undisputed testimony substantially that the cattle did not arrive at Ft. Worth to the same effect. when they should have done, but did so so W. C. Tucker, a witness for appellant, gave late in the day that the market for that day the testimony most favorable to it. He testiwas practically closed. The delay occurred fied that from Mathews Switch, where these on appellant's line. There was proof that the cattle were taken on, to Cisco, it was 44 or 45 delay in reaching there would result in miles, and they were then five hours out from shrinkage over and above that which would Mathews Switch. The testimony showed the have occurred had they not been delayed. minimum of average speed for such a train Plaintif received less for bis cattle than was 13 miles an hour, and they stopped at their market price that prevailed at Ft. Cisco 40 or 50 minutes. At Reynolds, which Worth on the day they reached there. What was 7 or 8 miles out from Mathews Switch, a plaintiff received for his cattle and what he drawhead pulled out of the engine, and they would have received had they reached there had to chain the engine to the cars. Thus, at the proper time was shown. What is here up to the time of leaving Cisco, a delay bad said disposes of the fourteenth assignment. been sustained of between two and three Under the same assignment we have the fur- hours. His testimony indicates other delays ther proposition that the charge complained before arriving at Waco. In view of this tesof put the burden on defendant to show that timony, and more specific testimony by plainthere was no oral contract, but this we find tiff's witnesses, which was not contradicted, was not the case.

we think the testimony complained of was not The eleventh and twelfth assignments are calculated to prejudice appellant. But for without any merit whatever.

such delay (the run on the Missouri, Kansas The seventeenth and twentieth assignments & Texas being expeditious, as was clearly complain of the refusal of special charges, shown) the cattle would have reached Ft. which, if given, would have assumed that Worth some hours sooner, and in time for the there was no oral contract.

market. In this case there was no necessity for The thirty-fifth assignment is not support. defining the term "negligence," because the ed by the evidence. The assignment is based act complained of was delay. Hence we over- on the statement of plaintiff's witness Miller: rule the twenty-first assignment.

"There was no market at Ft. Worth for The twenty-third assignment is overruled, West's cattle at the time they arrived. They because a charge on the measure of damages said that the market was closed.” The conwas given as appellant asked, as appears from tention is that, as there was no other testithe supplemental transcript.

mony tending to show that the market was The witness Drabm was properly allowed closed when plaintiff's cattle arrived there,

the admission of the testimony, it being hear- ing, the error, though not assigned, is so funsay, constitutes reversible error; that the cat- damental as to require the court to act on it. tle arrived at Ft. Worth between 12 and 1

Appeal from Bexar County Court; R. B. o'clock, according to Miller, and the market

Green, Judge. did not close until 5 p. m. The cattle were

Action by Fred Yost against the San Andelivered at 2 p. m., and there was no testi

tonio Traction Company. From a judgment mony as to difference in the morning and for plaintiff, defendant appeals. Reversed. evening market. This above is not a fair statement of the testimony. Plaintiff West

Geo. B. Taliaferro, for appellant. J. R. testified: “We got our cattle in the yards at

Norton, for appellee. Ft. Worth somewhere between 2 and 3 o'clock. I stayed around the pens until about sun- NEILL, J. This is a suit by appellee down, and during that time saw no cattle against appellant for damages. The plainsold at all.” Miller testified that the cattle tiff, after averring that while he was passwere not delivered until between 2 and 3 ing along a public street of the city of San o'clock. He was certain that they never turn- Antonio he was thrown from the cart in ed the cattle out of the cars until that time, which he was riding, by the negligence of and it was some time later before they were defendant, in his petition states the negliturned into the pens. Also after the cattle gence as follows: were in the pens no selling or buying was go- “Plaintiff alleges that the defendant was ing on. The witness referred to by appellant negligent in this: that it failed to prevent as testifying to the market closing at 5 o'clock said rails from becoming charged with elecstated that, as far as packing houses were tricity, so as to render them dangerous for concerned, the market closed at 3 o'clock, but horses or pedestrians to step upon, and beoutside buyers kept buying as late as 5 p. m. ing shocked thereby, as was its duty to do, No one testified to any transaction occurring and negligently caused said rails to become after these cattle were delivered. Under charged in a dangerous manner, and in such these circumstances the assignment is over- manner as to cause the horse drawing the ruled.

cart in which plaintiff was riding to fall The forty-first and thirty-first assignments when stepping on same, which resulted in must also be overruled. The testimony of throwing plaintiff out of said cart upon the witnesses excluded was as to the custom or street, and said negligence proximately habit of this defendant and other railroads caused plaintiff's aforesaid injuries. in requiring written contracts for the ship- "Plaintiff further alleges that the defendment of cattle; also as to the custom or hab

ant was negligent in this: that its operait of plaintiff's agent who shipped these cat- tives and employés in charge of one of its tle in making written contracts. This testi- electrical cars, which was at that time being mony was improper.

operated upon the track upon Austin street, We think there was no error in instructing failed to control said car, and failed to exthe jury to find for the Missouri, Kansas & ercise proper care to prevent running said Texas Railway Company of Texas.

car against said cart and plaintiff after said Aflirmed.

horse had become shocked and had fallen, and plaintiff had been thrown out of said

cart, as was his duty to do, and negligently SAN ANTONIO TRACTION CO. V. YOST.* ran said car upon and against said cart (Court of Civil Appeals of Texas. May 24,

and against plaintiff, and said negligence al1905.)

so proximately caused plaintiff's aforesaid 1. STREET RAILROADS INJURIES-INSTRUC

injuries.” TIONSUNAUTHORIZED ISSUES.

It will be observed that in the first paraWhere plaintiff charges negligence in de- graph quoted the negligence charged is defendant's permitting its rails to become char

fendant's permitting its rails to be charged ged with electricity, causing his horse to fall and throwing him from his cart, and alleges

with electricity in such manner as to cause that, after the horse was on the ground, de- the horse to fall, resulting in throwing plainfendant's servants, not having the car under tiff from the cart in the street and injuring control, ran it against plaintiff, an instruction

him. to find for plaintiff if the jury believe that de

In other words, permitting the rails to fendant's car collided with plaintiff's cart by

be charged with electricity was defendant's the negligence of defendant's employés, and such negligence, and the fall of the horse, and negligence was the proximate cause of the col

plaintiff's being thrown from the cart and lision, or if the car was being operated with or

injured, its consequences. In the second dinary care, but plaintiff was on defendant's track in a position of peril, and defendant's

paragraph the negligence charged is the failemployés knew his position of peril, and failed ure of defendant's servants to control the to exercise ordinary care to avoid injuring him,

car, and their failure to exercise proper care is erroneous, as not presenting the issues involved.

to prevent running the car against the cart 2. APPEAL-FAILURE TO ASSIGN ERROR-EF.

and plaintiff after the horse had been FECT-FUNDAMENTAL ERRORS,

shocked and fallen, and plaintiff had been Where an instruction authorizes a finding thrown out of said cart, and in running the for plaintiff on an issue not made by the plead

car against the cart and the plaintiff. In *Rehearing denied June 28, 1905.

other words, after the horse had been shocked

we

and plaintif thrown on the ground, defend- pellant, it is apparent upon the face of the ant's servants operating the car, not have record, and from its very nature is so fundaing it under control, in their failure to ex- mental as to require the court to notice and ercise proper care, ran the car against the act upon it. For, as is held by the Supreme cart and plaintiff, thereby causing his inju- Court in Wilson v. Johnson, 94 Tex. 276, 60 ries. In its charge the court instructed the S. W. 242, “an error apparent upon the face jury, if they believed from the evidence that of the record,” which may be considered a car of defendant collided with a cart in without assignment, is a “prominent error, which plaintiff was riding, and that such either fundamental in character, or detercollision was caused by the negligence of its mining a question upon which the very right employés in control of the car, and that such of the case depends.” Of such prominence negligence was the proximate cause of the is the error in the charge. collision and resulted in plaintiff's injury, The errors assigned are such as are not then to find for him; that if they believed likely to arise on another trial. from the evidence that the car of defendant For reason of the error indicated, the was being operated with ordinary care, yet, judgment of the county court is reversed, if they believed plaintiff was on defend- and the cause remanded. ant's track in a position of peril, and defendant's employés knew his position of peril, and failed to exercise ordinary care to avoid injuring him, then to find for LASATER V. FIRST NAT. BANK OF plaintiff. So much of the charge as

JACKSBORO. have in substance recited presents the only (Court of Civil Appeals of Texas. July 1, issues upon which the jury were authorized to

1905.) find for plaintiff. In another paragraph the USURY-RECOVERY OF PENALTY-PAYMENT BY jury were told, if they believed from the evi- SURETY. dence the plaintiff was not thrown out of his

A discharge of a note by a surety by giv

ing his own note in renewal thereof does not cart by reason of a collision with defend

operate as a payment by the principal in such ant's car, to find for the defendant. It is sense as to entitle him to avail himself of the thus seen there was no presentation by the

federal statute authorizing the recovery from

a national bank of twice the amount of usuricharge of the grounds of negligence alleged

ous interest paid to the bank, nor does the subby plaintiff as his cause of action, but that

sequent payment of the renewal note by the grounds of negligence averred were express- surety operate to give the principal a cause of

action under such statute. ly withdrawn, and entirely different facts fron those averred were submitted, and the

[Ed. Note.-For cases in point, see · vol. 6,

Cent. Dig. Banks and Banking, 1046; vol. 40, jury instructed to find for him upon them if

Cent. Dig. Principal and Surety, 88 492, 494.] they believed from the evidence they were proven. Unless the plaintiff was thrown

Appeal from District Court, Jack County; from his cart by the fall of his horse, caused

J. W. Patterson, Judge. either from the animals being shocked by a

Remand from the Supreme Court of the

United States. current of electricity with which the rails of the track were charged through defend- Wayne H. Lasater and Howard Martin, ant's negligence, and plaintiff was thereby for appellant. Thos. D. Sporer, for appellee. injured, or while, after being thrown from this cart by reason of the fall of the horse, SPEER, J. This suit is again before us caused by a shock of electricity from the upon a judgment of the Supreme Court of rails (whether by defendant's said negli- the United States reversing the judgment of gence or otherwise), he was on the ground, reversal and rendition heretofore rendered in defendant's servants in charge of the car this court on November 8, 1902. For a full negligently ran it against the cart on plain- statement of the nature of the case, and of tiff, and thereby injured him, he could not, the facts material to the questions involved, under the allegations in his petition, legally see the opinions of this court and of the recover damages for his injuries. There Supreme Court on certified questions in 72 was no allegation in the petition that plain- 9. W. 1054, 1057. tift was thrown from his cart and injured In the opinion of this court deciding the by a collision, or that he was in a position case upon the original hearing, what we conof peril which was discovered by appellant's sider to be the most material question inservants operating the car in time, by the volved was disposed of in the following lanexercise of the means at hand, to have avoid- guage: "The payment made by A. M. Lased injuring him, and that his injury was ater, the surety, who purchased the mortcaused by their negligent failure to exercise gaged cattle from appellant, and in considsuch means. Yet these were the grounds of eration thereof agreed to pay off the note to negligence submitted, to the exclusion of the bank, and in discharge thereof executed those alleged, and upon which the verdict his own note, which was afterward paid, was found and the judgment rests. It is was in law a payment by appellant in properror to instruct a jury to find for a plaintiff erty, and the same as payment in money." upon an issue not made by his pleadings. Upon a motion for rehearing being filed by While this error is not assigned by the ap- the bank, this court certified to the Supres

Court for answer the questions shown in the question of fraud upon his part in withholdcertificate, as incorporated in the Supreme ing from his trustee in bankruptcy notice of Court opinion already referred to. The Su- the existence of this claim, upon which the preme Court answered generally that the cause was decided in the United States Suopinion of this court correctly decided the preme Court, appellant has no case, and the several points presented. This court there- judgment of the district court should be afupon overruled the motion for rehearing, firmed. whereupon the appellee removed the cause For this reason, and in obedience to the by writ of error to the United States Supreme mandate of the United States Supreme Court, where a judgment was rendered re- Court, the judgment of the district court is versing the judgment of this court, and re- in all things affirmed. manding the cause for further proceedings not inconsistent with that opinion, First National Bank of Jacksboro v. J. L. Lasater, 196 U. 9. 115, 25 Sup. Ct. 206, 49 L. Ed. 408.

MORONEY v. COOMBES et al.* The question decided by this court in the

(Court of Civil Appeals of Texas. June 3, language heretofore quoted, and by the Su

1905.) preme Court upon the certificate, is thus dis

1. PRINCIPAL AND SURETY - DISCHARGE OF posed of by Mr. Justice Brewer in the fol- SURETY--EXTENSION OF TIME-EVIDENCE. lowing language: “The mere discharge by In an action on notes and seeking a foreA. M. Lasater of the note executed by him

closure of a mortgage securing them, evidence

that a part of the consideration of the mortself and J. L. Lasater by giving his own note

gage was a contemporaneous parol agreement in renewal thereof would not uphold a recov- by plaintiff with the principal, made without ery from the bank on account of usurious in- the knowledge of the sureties on the notes, to terest in the former note. Brown v. Marion

extend the time of payment of the notes, was

admissible as affecting the liability of the sureNational Bank, 169 U. S. 416, 42 L. Ed. 801,

ties. 18 Sup. Ct. 390. The payment contemplated 2. SAME-CONTRADICTING WRITING. by the statute is an actual payment, and not The evidence was not inadmissible on the a further promise to pay, and was not made

ground that it varied or contradicted an un

ambiguous written contract. until the bank in June, 1901, received its money. Prior to the renewal by A. M. Lasa- Appeal from District Court, Dallas County; ter, in October, 1900, there were only two or Richard Morgan, Judge. three small cash payments on the indebted- Action by W. J. Moroney against Z. E. ness." It was only upon the theory that the Coombes and others. From a judgment for discharge by A. M. Lasater of the note exe- plaintiff as against Z. E. Coombes, and in cuted by himself and J. L. Lasater, by giving favor of the other defendants, plaintiff ap his own note in renewal thereof, "was in law peals. Affirmed. a payment by appellant in property, and the

C. L. Simpson, for appellant. W. A. Hudsame as payment in money,” that this court

son, for appellees Hinton and Brannin. in the first place reversed the judgment of the district court and rendered one in favor

TALBOT, J. Plaintiff, W. J. Moroney, of appellant. But this construction of the

brought suit against defendants, Z. E. federal statute being held to be erroneous by

Coombes, Jr., Charles Coombes, W. N. the Supreme Court of the United States, it

Coombes, J. W. Hinton, and A. E. Brannin, follows that, if appellant ever had a cause

to recover the balance due on three notes of action for usurious interest paid the bank,

executed by 2. E. Coombes, Jr., as principal, it was by reason of the subsequent actual

and Charles E. Coombes, J. W. Hinton, and payment made by A. M. Lasater in June,

A. E. Brannin as sureties, payable to the 1901. This court never intended to hold, nor

order of Martin Auer, and indorsed by Auer do we think it should be held, that appellant

to plaintiff, and to foreclose a mortgage can avail himself of this final payment made

securing said notes executed by 2. E. by A. M. Lasater. If appellant ever paid

Coombes, Jr., to plaintiff on a block of land usurious interest to appellee, it was on the

in Benjamin, Tex. W. N. Coombes had 17th day of October, 1900, at the time when

waived a prior lien in favor of plaintiff, and A. M. Lasater took up appellant's note by

was made a party merely to perfect the foresubstituting his own. Clearly, appellant's

closure. Charles E. Coombes established debt was discharged at that time. He never

the defense of minority, and on this point afterward owed the appellee anything, and

no question is raised on this appeal. Dethe appellee never took, received, reserved, or

fendant 2. E. Coombes, Jr., made default, charged any interest whatever, so far as b he

W. N. Coombes filed a disclaimer, and de is concerned. When A. M. Lasater, in June,

fendants Brannin, Hinton, and Charles E. 1901, paid the bank the sum of $4,457, he

Coombes pleaded, among other things, in paid his own debt, and not appellant's.

substance, that they were sureties on said Then, if the transaction of October 17th,

notes, and that a part of the consideration whereby appellant's indebtedness to the bank

for said mortgage was the contemporaneous was discharged and he was released, would

parol agreement of plaintiff that the paynot uphold a recovery froin the bank, it is clear to our minds that, irrespective of the *Rehearing denied June 24, 1905, and writ of crror ment of said notes should be extended for uous written contract. To this effect is the one year, and that said sureties should be holding of the Court of Civil Appeals of the discharged, and that said parol agreement Third District in the case of Martin et al. v. was made without the knowledge or consent Rotan Grocery Co., 66 S. W. 212, in which a of said sureties. A trial by jury resulted writ of error was denied by our Supreme in a verdict and judgment in favor of plain- Court. The facts in that case are so nearly tiff against Z. E. Coombes, Jr., for the sum identical with the facts in the case at bar of $810, with a foreclosure of the mortgage that we think they are not distinguishable lien, and in favor of defendants Brannin, on principle. In such case it is not necessary Hinton, and Charles E. Coombes, that plain- to allege fraud, accident, or mistake in order tiff take nothing as to them, and that they to render such testimony admissible. The recover their costs, from which judgment testimony upon the issue was conflicting, but appellant has appealed.

denied by Supreme Court.

the verdict of the jury embraces the finding The assignments of error present but one that the payment of the notes was extended question for our determination. Testimony and sureties discharged as alleged, and the was offered by defendants Brannin, Hinton, evidence sustains such findings. and Charles E. Coombes in support of their There was no error, either in the admisplea that, as a part of the consideration for sion of th evidence objected to or the the mortgage sought to be foreclosed, appel- charge of the court, submitting the issues lant, at the time of the execution of said to the jury, and the judgment of the court mortgage, entered into an agreement with below is affirmed. Z. E. Coombes, Jr., the principal obligor on the notes sued on, extending the time of the payment of said notes and discharging these defendants from all liability as sure

SANGER BROS. v. BRANDON. ties thereon, without their consent. Appel

(Court of Civil Appeals of Texas. May 31, lant objected to the admission of this evi

1905.) dence on the ground that it varied the terms

WRONGFUL ATTACHMENT_UNAUTHORIZED I8of a valid written instrument. The objec- SUANCE OF WRIT RATIFICATION - LIABILItion was overruled, and this action of the TY OF PLAINTIFFS. court is assigned as error. We think there

Where defendant's property was wrongful

ly seized under a writ purporting to be signed was no error in the admission of this testi

by the justice before whom the action was commony. It is settled law that the liability of menced, and plaintiffs ratified and adopted the a surety or guarantor is limited to and con

issuance and execution of the writ, they were

liable for the wrongful conversion, though the trolled by the very terms of the contract

writ was not in fact signed by the justice or out of which his obligation arises. If the by one having authority. contract be materially changed by the prin. [Ed. Note.—For cases in point, see vol. 5, cipals thereto without his consent, he will Cent. Dig. Attachment, 8 1328.] be released, without regard to whether he

Appeal from Hill County Court; L. O. Hill, has been benefited or prejudiced by such

Judge. change, and it follows that parol evidence

Action by Sanger Bros. against T. H. is admissible under proper pleadings to show

Brandon, in which defendant filed a plea such change. Ryan v. Morton, 65 Tex. 260;

of reconvention. From a judgment for deStafford v. Christian (Tex. Civ. App.) 79 S. W.

fendant on the plea, plaintiffs appeal. Af595; Lane v. Scott, 57 Tex. 367. Falling

firmed. within the above rule is a contract by the principal obligor in a promissory note ex

A. P. McKinnon, for appellants. Derden tending the time of the payment of such note

& Killaugh, for appellee. upon a valuable consideration, without the consent of the surety sought to be held. KEY, J. This suit originated in a justice Such extension creates a new and binding of the peace court, and was appealed to the contract, and is such an alteration of the old county court. Acting under a writ signed contract as will release a surety thereon, with the name of the justice of the peace, if made without his consent.

the constable seized certain personal propAppellant's further contention, that the erty belonging to the defendant, and the lattestimony was inadmissible to show that a ter filed a plea in reconvention to recover part of the consideration for the execution damages on account of such seizure. Sangof the mortgage sought to be foreclosed was er Bros., the plaintiffs in the suit, dismissed a contemporaneous parol agreement between the saine, and the case was tried on the plea the principals to the note sued on that the in reconvention, resulting in a judgment for defendants as sureties thereon should be dis- the defendant for $19.80, and the plaintiff's charged, cannot be sustained. There is noth- have appealed. ing upon the face of the mortgage that dis- There is no statement of facts in the trancloses such an agreement, but the establish- script, but the trial judge filed elaborate con. ment of such an additional consideration by clusions of fact, and it is contended that extraneous proof does not violate the rule such findings fail to show that Sanger Bros. which prohibits the introduction of parol were responsible for the seizure of the de evidence to vary or contradict an unambig- fendant's property under the alleged wr

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