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liable if they be false. And when the repre- , effect of the court's findings is that all repsentations are not in writing, and their purpose resentations made by defendant in error were is not manifest and certain, the question should be left to the jury to determine whether or not merely the expression of his opinion, and the language used was intended and understood that he never intended more than that, and as the affirmation of a fact, or the mere ex- that the plaintiff in error so understood it. pression of an opinion.”

Such being the condition of the record, any Applying the rule stated in the instant assignment without support in the court's case, it will be seen, by reference to the conclusions of fact, or which fails to chalcourt's conclusions of fact, that the court, lenge the correctness of such conclusions in not only found that defendant in error's a proper manner, does not constitute reversistatement in reference to the particular in- ble error. jury inquired about, i. e., the injury to the

For the reasons stated, the judgment is hip, was not a false representation, but that affirmed. all representations made as to the soundness of the mules were opinions of defendant in error, and so understood and accepted by

ROUNDS V. COLEMAN. (No. 876.) plaintiff in error. Such being the conclu

(Court of Civil Appeals of Texas. Amarillo. sions of fact by the court while in the exer

Oct. 9, 1915.) cise of his jury function, the assignment discloses no error, since such conclusions are AFFIDAVITS 14-AUTHORITY OF OFFICER

AFFIDAVIT IN LIEU OF APPEAL BOND. not challenged, neither does the record con

An affidavit in lieu of an appeal bond sworn tain a statement of facts upon which such to before the judge of a county court of another challenge might be based.

state is defective, as the statutes give such an It is next urged as a proposition of law officer no authority to administer oaths and afthat it is the duty of the vendor in the sale firmations when taken without the state.

[Ed. Note.--For other cases, see Affidavits, of personal property to disclose to the ven- Cent. Dig. $$ 58-60; Dec. Dig. Om14.] dee all latent defects affecting the value of the article sold. It is asserted in such con- Appeal from District Court, Collingsworth nection that the defendant in error not only County ; J. A. Nabors, Judge. failed in such duty, but concealed a latent

Action between Adelia T. Rounds and S. defect in one of the mules. To sustain this L. Coleman. From the judgment, Rounds apclaim plaintiff in error relies upon the finding peals. Appeal dismissed. of the court that defendant in error, when J. M. Worten, of Pawhuska, Okl., and one of the mules was a colt, discovered it in Templeton & Templeton, of Wellington, for an injured and crippled condition in the hip, appellant. R. H. Cocke, Jr., of Wellington, due to causes unknown to defendant in error, for appellee. and from which injury it limped for three or four months, notwithstanding which de- HENDRICKS, J. The affidavit in lieu of fendant in error at the time of the sale in an appeal bond in the transcript in this apeffect stated that he could hardly notice the peal is purported to have been made before a low hip, and that the mule never had gone judge of the county court of Tulsa county, lame on him. The court, however, in its con- Okl. We are unable to find in our statutes clusions of fact further found that such ac- giving to such an officer any authority to adtion of defendant in error was not the con- minister oaths or affirmations when taken cealment of a latent defect, for the reason without this state, and the motion to dismiss that the defect was open and patent and was the appeal on account of a defective affidavit observed by plaintiff in error. Further, the is sustained, and the appeal is ordered discourt found also that what defendant in er- missed. ror said concerning the effect of the injury on the mule was not a false representation. In other words, that defendant in error stat- BLAIR & HUGHES CO. V. WATKINS & ed the truth when he represented to plaintiff

KELLEY. (No. 746.) in error that the low hip had never hurt the (Court of Civil Appeals of Texas. Amarillo. mule or caused it to limp while owned by de

Oct. 9, 1915.) fendant in error. Thus, while the rule of

1. EVIDENCE 434 - PAROL EVIDENCE law stated by plaintiff in error may be con

FRAUD INDUCING CONTRACT. ceded to be correct, it also has no support in Although an order for goods shipped and rethe facts, and fails to disclose reversible er- fused, stipulates that all its conditions appear

upon its face, parol evidence of fraudulent repror.

resentations inducing the order that the goods [2] The next proposition is, in effect, that could and would be delivered by a certain date, the making of a false statement concerning when not varying the terms of the instrument, is the condition of personal property, which in- admissible. duces the purchase thereof, is ground for

[Ed. Note. For other cases, see Evidence,

Cent. Dig. $8 2005-2020; Dec. Dig. 434.] rescission. Generally speaking, the rule as stated is correct. The difficulty, however,

2. EVIDENCE Om 419_PAROL EVIDENCE-CON

SIDERATION. lies in the fact that the proposition is also Parol evidence is admissible to show the not supported by the court's conclusion. The real consideration of a written contract, alTex.)

BLAIR & HUGHES CO. v. WATKINS & KELLEY

531

though it contradicts the consideration named that the order was made upon said repretherein.

sentations, but that the bagging and ties were [Ed. Note.-For other cases, see Evidence, not delivered on the following Monday, and Cent. Dig. 88 1912–1928; Dec. Dig. Om 419.]

were not shipped until November 15th. It 3. APPEAL AND ERROR Om 1001-MATTERS RE- is alleged that Cheathani's statements that

VIEWABLE-VERDICT NOT SUPPORTED BY Ev- the bagging and ties were in stock and would
IDENCE,
Where the verdict of the jury is not sup-

be shipped Monday were fraudulently made, ported by the evidence, the case will be re- and that defendants were induced thereby versed on appeal.

to give him the order. [Ed. Note.-For other cases, see Appeal and Appellant contends that the court erred in Error, Cent. Dig. 88 3922, 3928–3934; Dec. admitting in evidence the testimony of appelDig. Om 1001.]

lee Watkins to prove the conversation and Appeal from Collingsworth County Court; agreement with Cheatham before the written R. H. Cocke, Judge.

order for the goods was signed. The evidence Action by the Blair & Hughes Company shows that the order was not signed in Welagainst Watkins & Kelley. On motion for lington, but was given on the train after Watrehearing. Reversed and remanded.

kins and Cheatham left Wellington for Dod

sonville. The admissibility of parol evidence R. H, Templeton, of Wellington, and Charles to show fraud in matters of inducement as a C. Huff, of Dallas, for appellant. J. L. Lack-defense to an action upon the contract is well ey, of Wellington, for appellees.

settled in this state. The Court of Appeals

and the Supreme Court, in United States GypHALL, J. A review of the record has con- sum Co. v. Shields, 106 S. W. 724, and 101 vinced us that we erred in affirming the Tex. 473, 108 S. W. 1165, discussed this quesjudgment. Appellant company sued Watkins tion, and held that, although the contract of & Kelley, a copartnership, upon an ac- sale provides that the written order consticount, for $625. In its amended petition tutes the entire contract, and that there are appellant alleged that on the 6th day of no verbal statements or agreements varying November, 1912, plaintiff entered into a its terms, nevertheless evidence of fraudulent written contract with the defendants, Wat- representations not tending to vary the terms kins & Kelley, as follows:

of the writing by which the purchaser was in“Blair x Hughes Company:

duced to sign it is admissible. Common"Ship to Watkins & Kelley, Dodsonville, Tex- wealth Bonding & Casualty Co. v. Bomar, as, five hundred patterns bagging and ties, $1.25 169 S. W. 1060; Coons v. Lain, 168 S. W. 981 ; per pattern, f. o. b. Wichita Falls, Texas. Bill New York Life Insurance Co. v. Thomas, 47 of Lading attached. There are no conditions attached to this sale other than those shown on Tex. Civ. App. 149, 104 S. W. 1074; Trinity this order and same is not subject to counter-Valley Trust Co. v. Stockwell, 81 S. W. 793; mand under any circumstances. Sellers not li- Turner v. Grobe, 44 S. W. 898. able for fulfillment of this order unless signed by purchaser.

[2] Parol evidence is also admissible to **[Signed] Watkins & Kelley, Purchaser. show the real consideration for a written con

"Cheatham, Salesman for Sellers." tract, when the consideration itself is not [1] Appellant further alleges that it ship- contractual, although the effect of such eriped the bagging and ties to Watkins & Kei-dence is to contradict the consideration reley consigned to Dodsonville, Tex., and sent cited in the writing. Watson v. Rice, 166 S. the bill of lading with draft attached, as

W. 106. provided in said written order, and that de

The jury found, in reply to the first and fendants had refused to accept the shipment second questions submitted by the court, that and pay for same when it arrived at Dodson-Watkins signed the order with the underville.

standing that the bagging and ties should be Defendants alleged, in substance that on delivered not later than Monday following the 6th day of November, 1912, being in the 6th day of November, 1912, and that immediate need of bagging and ties for use such delivery should be made to Watkins at their gin at Madge, Okl., they met ap- & Kelley by that date. There is no testipellant's salesman, Cheatham, in Wellington, mony whatever in the record upon which to Tex., and inquired of him how long it would base such a finding. take said bagging and ties to reach Dodson

[3] The remaining fact, upon which apville; that Cheatham advised them that his pellees defended, is the alleged fraudulent house had the bagging and ties in stock, and representation by Cheatham that appellants could deliver same to defendants at Dodson- had the patterns on hand at that time in ville by the following Monday, and that, if Wichita Falls. This issue was also submitdefendants would give him the order, he ted to the jury and they failed to agree. A would phone his house and ascertain whether great many immaterial issues were submitor not the goods were in stock at that time; ted to the jury; but there being no evidence that Cheatham did communicate by phone to sustain the finding that appellants underwith plaintiffs, and afterwards advised de- took to deliver the goods on or before Monfendants that the bagging and ties were in day following the execution of the order, and stock and could be shipped immediately; and the jury having failed to agree upon the issue as to whether or not Cheatham fraud- and delivered to defendant a number of ulently represented the goods to be in stock, promissory notes and land contracts with the there is nothing in the verdict upon which understanding and agreement that the deto base a judgment.

fendant would collect the notes and close up It is therefore reversed, and the cause re- the land deals and out of the proceeds arismanded.

ing therefrom pay himself the amount due from Caylor. It is further alleged that appellant was aware of these conditions at the

time the order sued on was presented and at H. J. MURRELL & CO. v. EDWARDS et al. the time of the alleged acceptance, that there (No. 823.)

had not been a sufficient amount of said (Court of Civil Appeals of Texas. Amarillo.

collateral collected to pay defendant, and Oct. 16, 1915.)

that the suit was prematurely brought. Ap

pellant filed a supplemental petition, denying 1. ASSIGNMENTS Om 100 — ORDERS - REFUSAL the affirmative matters pleaded by defendant, TO PAY-SUBSISTING EQUITIES.

Where the drawer of an order to pay from and upon a trial before the court without a funds collected by the drawee was indebted to jury judgment was rendered in favor of Edthe drawee and to the payee, but the debt to the wards that plaintiff take nothing by its suit. drawee was prior to that to the payee, the or

The order from Caylor to Edwards is as der was subject to the debt to the drawee and to the drawee's equities against the drawer.

follows: [Ed. Note.-For other cases, see Assignments,

"Hereford, Texas, 10/20/13. Cent. Dig. $$ 177, 180; Dec. Dig. Om100.] "Edwards-McDonald Investment Co.: You

will please pay to H. J. Murrell & Co., out of 2. BILLS AND NOTES 68-ORDERS-ACCEPT- commissions due me when collected, one hundred ANCE.

fifty-seven and forty-six one-hundreths ($157.46) The drawee of an order held not to have dollars.

George F. Caylor.” accepted the order by the words "the order shall have our attention” at an uncertain time.

The following day, appellants' attorneys [Ed. Note. For other cases, see Bills and notified Edwards-McDonald Investment ComNotes, Cent. Dig. $$ 110-115; Dec. Dig. Om

pany of the execution of the above order and 68.]

that it was given in settlement of a suit 3. APPEAL AND ERROR Omw927—PRESUMPTIONS against Caylor in which garnishment pro-DISMISSAL-GROUNDS.

Although a plea that an action is prema- ceedings had been served upon the Edwardsturely brought is one in abatement and not in McDonald Investment Company. In said letbar, and the suit, if dismissed on that ground, ter the following questions are asked: is erroneously dismissed, where there are other grounds for dismissal, in the absence of a rec

“(1) Is the sum from you to Mr. Caylor due ord showing to the contrary it will be presumed upon commissions owed by you to him?' (2) Do that the dismissal was upon the valid grounds. you owe him sufficient to insure our payment [Ed. Note.-For other cases, see Appeal and do not, will you pay our order before that of

after he has paid Dr. Caylor $300.00?' if you ErrorCent. Dig$$ 2912, 2017, 3748, 3758Dr. Caylor?” 4024; Dec. Dig. 927.]

The letter also states that the garnishment Appeal from Deaf Smith County Court; proceedings were filed before the execution Jas. A. Hughes, Judge.

of Dr. Caylor's order and that appellants Action by H. J. Murrell & Company against would not be willing for Dr. Caylor's debt to S. B. Edwards and another. From a judg. have precedence. ment for defendants, the plaintiffs appeal. Af

On the 24th of October another letter was firmed.

written by appellants' attorneys, notifying Hoover & Dial, of Canadian, and Knight & Edwards that they desired an answer to Slayton, of Hereford, for appellants. W. H. their former letter before court convened on Russell, of Hereford, for appellees.

the following Monday, in which this language

is used: HALL, J. Appellants instituted this suit Caylor and it secures us sufficiently, then there

"If you can accept the order given by George to recover of S. B. Edwards and Geo. F. Cay- will be no need for you to file an answer in the lor the sum of $157.46. Appellants alleged garnishment proceedings and we are willing to that about the 20th day of October, 1913, de pass the matter for one week in order to get

fixed.fendant Caylor executed and delivered to it a certain order on S. B. Edwards, in the

On the following day Edwards replied as above amount, which the said Edwards follows: agreed and became liable to pay, but which

“We have your favor of the 21st, in which he had subsequently refused to pay. By con- you state that George F. Caylor had given you

an order on us for $157.46. I am sure that sent of parties the cause of action was dis- Mr. Caylor will have sufficient funds coming to missed as to all defendants except Edwards. him when the deals are closed up to pay you He answered by general and special denial this amount. Dr. Caylor's order was dated

ahead of yours and we would not feel like payof appellants' allegations and pleaded spe- ing this before his without his consent. If you cially that prior to October 20, 1913, Caylor can get his consent to let your order precede was indebted to him in the sum of several his it will be entirely satisfactory with us.” thousand dollars, and for the purpose of se- Appellants' attorneys immediately secured curing the payment of such sum had signed ) Dr. Caylor's consent that his order might be Tex.)

H. J. MURRELL & CO. v. EDWARDS

533

postponed to the one given by George Caylor! [1, 2] The effect of the order dated 10/20/13 to appellants. On November 7th appellants' was to assign to appellants $157.46 out of attorneys again wrote Edwards, using this any commissions which might be subsequentlanguage:

ly collected by Edwards for Geo. F. Caylor. "In order that we may keep our record This assignment, however, was subject to all straight in this matter, we are asking you to the equities existing against the fund in fafavor us with a statement of your acceptance of this order and a statement as to the probable vor of Edwards, and without a subsequent date when the commissions to George Caylor unconditional acceptance by him he had the will be due."

right to reimburse himself for any amount To this letter Edwards replied as follows: due him from Caylor before he could be held “Replying to your kind favor of the 7th will to pay appellants anything. It appears from say that we have received your order on George their letter of November 7, 1913, that no acF. Caylor and also your order from H. C. Cay- ceptance of the order had yet been made by lor, permitting your order to take prestige over Edwards, because in this letter they expresshis. These orders will have our attention immediately upon the sale of notes which Mr. Cay- | ly ask for a statement of Edwards' acceptlor is interested in."

ance. Edwards' reply is that the orders Following this letter, appellants' attorneys should have his attention immediately upon wrote Edwards several times with reference the sale of the notes. The rule is that when to the matter, urging a settlement and a re an acceptance is evidenced by separate writply to former letters, and nothing was heard ing its terms must be so clear as not to adfrom Edwards until July 14th, when he mit of doubt. wrote as follows:

“Thus, where the drawer advised the drawee

of the bill by letter, and the drawee replies that "I have your several letters and ask you to the bill shall have attention, it was held that pardon my delay in answering. The fact is that these words, taken by themselves, were not sufI have had nothing definite to write. Since last ficiently positive and unequivocal to amount to fall we have had three of the deals which Çaylor actual acceptance, but that if it could be shown was interested in to fall down, and which will that such words were used for that purpose, very materially affect the amount of his com- and with that effect in dealings between the mission. We have been unable so far to sell parties, then they might be regarded as an ac. any of our vendor's lien notes."

ceptance.” 1 Parsons on Notes and Bills (2d Later, on November 17, 1914, Edwards Ed.) 286; 7 Cyc. 765 (2). wrote appellants' attorneys that three of the The record fails to show the dismissal of trades in which Mr. Caylor was interested the garnishment proceedings against Edhad not been consummated and that he wards, neither is the issue of estoppel raised would lose, on the securities taken from Cay- by the pleadings. lor, several hundred dollars, regretting his [3] Appellant insists that the court should inability to save appellants anything out of have sustained its exceptions to appellee's the commissions. This suit was then insti- | plea, alleging that the suit had been prematuted, the above orders and correspondence turely filed. That the action has been preintroduced in evidence, together with the maturely brought is matter which should be oral testimony of appellee Edwards, in sub-pleaded in abatement rather than in bar; stance as follows:

but if there was no acceptance of the order it "About the time the order in question was is of no consequence whether the facts pleadgiven, George F. Caylor owed me about $3,000. ed tending to show that the action was preSince I received the order I have collected about maturely brought were or were not true. $in name, but George F. Caylor was interested in The trial judge filed no findings of fact or some commissions included in the notes. The conclusions of law. In this state of the rec$1,000 collected represents the amount of the ord, we do not know that he based his judgcommissions from the notes, which would have belonged to George F. Caylor if he had not ment upon the facts alleged by appellee showbeen indebted to us. He still owes us about ing that the suit had been prematurely $2,000. $1,000 was collected after the alleged brought, and in support of the judgment we acceptance of the order in question. There has must presume that the decree is based upon been enough collected from the commission notes belonging to George F. Caylor to have paid the appellee's contention that the order had nevorder in question if George F. Caylor had not er been accepted by Edwards. Walker v. owcd anything. These collections of George F. Cole, 89 Tex. 323, 34 S. W. 713; O'Fiel v. Caylor's commission were made by me in September, 1914. I have never paid any part of King, 23 S. W. 696. the order sued on."

The judgment must be affirmed.

no authority was extended in any case to an. INTERNATIONAL FIRE INSURANCE CO. that the court was not bound to find that this

agent to operate outside of his county. Held, V. BLACK. (No. 1492.) *

custom was observed when such agent was ap

pointed, but had a right to determine the ques(Court of Civil Appeals of Texas. Texarkana. tion from the correspondence, which correspondJuly 1, 1915. Rehearing Denied

ence did not limit his authority to H. county. Oct. 7, 1915.)

[Ed. Note. For other cases, see Insurance,

Cent. Dig. § 103; Dec. Dig. Om78.1 1. INSURANCE 76-ACTIONS ON POLICIESSufrICIENCY OF EVIDENCE.

Error from District Court, Panola CounThough in an action on an insurance policy ty; W. C. Buford, Judge. the circumstantial evidence strongly tended to show that the agency of the person issuing the

Action by S. C. Black against the Interpolicy had terminated before its issuance, where national Fire Insurance Company. Judghe testitied that his agency had not tuen termi- ment for plaintiff, and defendant brings ernated his testimony supported the trial court's

ror. Affirmned. finding in favor of plaintiff.

[Ed. Note.-For other cases, see Insurance, Locke & Locke, of Dallas, and Brooke & Cent. Dig. § 101; Dec. Dig. Om76.]

Woolworth, of Carthage, for plaintiff in er2. APPEAL AND ERROR @m1010_REVIEW_ror. Jno. W. Scott, of Marshall, and Frank QUESTIONS OF Fact.

Lawson, of Carthage, for defendant in error. The question for an appellate court is not whether findings of the trial court complained of are supported by a preponderance of the evi

WILLSON, C. J. The suit was by defenddence, but whether or not there is any evidence ant in error Black on a policy issued, he alto support them.

leged, by plaintiff in error through its agent [Ed. Note. For other cases, see Appeal and A. C. Littlejohn November 5, 1912, insuring Error, Cent. Dig. 88 3979–3982, 4024; Dec. Dig. his (Black's) dwelling house, situated on a m1010.)

farm in Panola county about 18 miles south3. INSURANCE 78-AUTHORITY OF AGENT-east of Marshall, in Harrison county, in the ESTOPPEL TO DENY.

Where a party dealing with an insurance sum of $2,000, and the contents thereof in agent authorized to issue policies and having the sum of $1,000, against loss by fire. The policies in his possession did not know of any house and its contents were destroyed by restriction on his authority with respect to the fire March 12, 1914, while the policy was in territory in which he might write insurance or the classes of property which he might insure, force, it was alleged. Plaintiff in error dehe had a right to assume that the agent was au- nied that it had ever issued such a policy as thorized to issue the policy actually issued, and the one sued on, and denied that said Littlethe insurance company was estopped from as-john was its agent. The trial was by the serting the contrary.

[Ed. Note.-For other cases, see Insurance, court without a jury, and resulted in judgCent. Dig. $ 103; Dec. Dig. Om78.]

ment in favor of defendant in error for $3,4. ESTOPPEL Cw114–NECESSITY OF PLEADING 000, interest and costs. -LACK OF OPPORTUNITY TO PLEAD.

That plaintiff in error on June 22, 1911, Plaintiff sued on a fire insurance policy, authorized Littlejohn to act as its agent at alleging that it was issued by defendant through Marshall and furnished him the blank forms its agent L. The answer denied that L: was of policies, etc., it expected he would need in defendant's agent and that he had authority to issue any such policy. Plaintiff showed that 1. the transaction of its business, was not diswas defendant's agent to issue policies and that puted. That the policy issued by him to dehe had no knowledge of a limitation on L.'s fendant in error was one of plaintiff in erauthority as to the classes of property on which ror's policies was disputed, but we do not he could write insurance. Held, that the estoppel against defendant as to the agent's au- understand plaintiff in error to be in the thority was available to plaintiff, since, while attitude of questioning the sufficiency of the the general rule is that facts relied upon to es evidence relied upon to support the finding tablish an estoppel must be pleaded, such rule involved in the judgment, that the policy does not apply where the party asserting the estoppel has not had an opportunity to plead it. was issued on its behalf by Littlejohn as its

[Ed._Note.-For other cases, see Estoppel, agent. The contention of plaintiff in error Cent. Dig. $ 304; Dec. Dig. @ww114.]

is that the trial court erred in not render5. INSURANCE in 78-AUTHORITY OF AGENT, ing judgment in its favor, because, as it EXTENT OF AUTHORITY.

insists is true: (1) It appeared from "the An insurance company's agent at M. in H. great preponderance of the evidence” that county, in applying for appointment, stated that the class of risks he would write would be Littlejohn was not its agent at the time he among the best planters in H. county. The issued the policy; and (2) that, if it did company replied that if he would take the appear that he was then its agent, it furagency they would endeavor to care for his counther conclusively appeared that as such he try business if he would also give them some good city business. In an action on a policy was without authority to issue its policies issued by him covering farm property in anoth-on farm property, without respect to where er county about 18 miles from M., the company's same was situated, and was without ausecretary testified that the authority of agents thority to issue its policies on property of was limited to their own town and its srburbs, that if the authority was greater than this spe- any kind in Panola county. cial permission would have to be given, and that [1, 2] Notwithstanding circumstantial eviOm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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