H. M. Whitaker, of Beaumont, and Nor- preparatory to cultivating it; that Hill joinman, Shook & Gibson, of Rusk, for appel- ed other citizens of the county in petitioning lants. W. H. Clark, of Dallas, and Perkins the commissioners' court to open up a public & Perkins and Guinn & Guinn, all of Rusk, road along the north boundary line of the for appellees. land, and gave a part thereof to the county as a right of way for the road; that he contracted with other parties to furnish them railroad ties, and from March 25 to April 17, 1915, had men on the land engaged in making the ties, and a man engaged in hauling same therefrom; and that it was understood by people living in the neighborhood in which WILLSON, C. J. (after stating the facts as above). [1] That Hill owned the land at the time the abstract was recorded and at the time the execution was levied, and that Mrs. Osburn did not then or afterwards own it, is conceded to be true. But notwithstanding the fact that Hill owned it, Whitaker might have acquired a lien on the land by complying with the requirements of the statute with reference to judgment liens (articles 56145616, Vernon's Statutes), or by the levy of an execution, at a time when he did not have, and was not chargeable with, notice of the fact that Hill owned it (articles 6827, 6828, Vernon's Statutes), and be entitled by force of article 6824, Vernon's Statutes, to have it subjected to his judgment against Mrs. Osburn. Grace v. Wade, 45 Tex. 522. [2] It appears that the abstract was duly recorded, but it does not appear from anything we have found in the record sent to this court that it was indexed as was required by the statute. Articles 5614-5616, Vernon's Statutes. As indexing the abstract was indispensable to the creation of a lien (Nye v. Moody, 70 Tex. 434, 8 S. W. 606; Nye v. Gribble, 70 Tex. 458, 8 S. W. 608; Miller v. Koertge, 70 Tex. 162, 7 S. W. 691, 8 Am. St. Rep. 587), it cannot be said to have appeared that Whitaker had acquired a judgment lien against the land. the land was situated that Hill owned it. Whitaker insists that the testimony just referred to was wholly insufficient to support a finding that Hill had such possession of the land as charged him with notice of Hill's claim of title to it. We will not discuss the testimony, nor undertake to determine whether, if the appeal was from a judgment based on such a finding on such evidence alone, after a trial of the cause on its merits, such a contention should be sustained or not. The appeal is not from that kind of a judgment, but, as before stated, is from an order of a judge made in vacation, refusing to dissolve a temporary injunction theretofore granted by him. It has been held that in granting such an injunction- In passing upon a motion to dissolve such an injunction the action of the judge should, we think, be controlled by like considerations. We are not prepared to say that in overruling the motion the judge abused the discretion he possessed. Therefore the judgment will be affirmed. FER. (No. 5505.) [3, 4] But it appeared that the deed to Hill had not been filed for record at the time the execution was levied. Therefore, unless it further appeared that, notwithstanding the deed had not been so filed, Whitaker may have had, or been chargeable with, notice of Hill's claim, the judge erred when he overruled the motion to dissolve the injunction. It was not pretended that Whitaker had SAN ANTONIO & A. P. RY. CO. v. SCHAEFactual notice of the fact that Hill claimed to own the land, but it was insisted that Hill had such possession thereof as charged Whit- (Court of Civil Appeals of Texas. San Antonio. aker with notice of his rights. Oct. 20, 1915.) 1. APPEAL AND ERROR GRANTING NEW TRIAL. amount beyond the jurisdiction of the trial court, Where the amended petition shows an but the record does not contain the original petition or show the amount originally sued for, the judgment will be reversed, and the cause remanded, instead of reversing and dismissing it. Error, Cent. Dig. §§ 4597-4604, 4606-4610; [Ed. Note.-For other cases, see Appeal and Dec. Dig. 1177.] In support of the contention testimony was offered showing that, during the fall of 1913, Hill and one O'Neal, who owned land adjoining the land in controversy, constructed a partition fence about 550 yards long, after clearing a space 10 to 12 feet wide for same, along the boundary line between them; that during the winter of 1913 and 1914 Hill opened up roads on the land in controversy and used timber thereon to make posts for fencing it; that in May, 1914, he deadened some of the timber thereon; that in August, 1914, he cleared up a site for a house he intended to build thereon, had a well dug on the site, cut timber on the land, and made logs to use in building a barn thereon, and cleared off the undergrowth on an old field on the land 1177 - REVERSAL Action by A. R. Schaeffer against the San | results are enjoyed by it, it is estopped to deny Antonio & Aransas Pass Railway Compa- the officers' authority to make the contract. From a judgment for plaintiff, defend-Cent. Dig. 88 1697-1701, 1705; Dec. Dig. [Ed. Note.-For other cases, see Corporations, ant appeals. Reversed and remanded. ny. Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. John Baker, B. D. Tarlton, Jr., and H. S. Bonham, all of Beeville, for appellee. CARL, J. This is a suit in tort for damages to an automobile, which damage is laid at $975, together with legal interest thereon from July 3, 1912. The original petition does not appear in the transcript, but the petition upon which the cause was tried was filed subsequent to July 24, 1914. This petition does not disclose the amount sued for in the original petition. [1] It has been the practice of this court, where the amended petition would show an amount beyond the jurisdiction of the trial court, and yet the record did not contain the original petition or show what the amount originally sued for was, to reverse the judgment and remand the cause, instead of reversing and dismissing it. 425.] 4. TRIAL 260-INSTRUCTIONS COVERED BY OTHERS. Requested instructions, covered by others given, need not be given. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 5. APPEAL AND ERROR 1068-HARMLESS ERROR-REFUSAL OF INSTRUCTION. Refusal of an instruction that agreement was not binding was harmless; it being clear that the jury did not consider the agreement. Error, Cent. Dig. §§ 4225-4228, 4230; Dec. [Ed. Note.--For other cases, see Appeal and Dig. 1068.] After rights of attorneys to compensation [2] It is well established that in an ac- for services performed for a corporation have action in tort interest is a part of the dam-matter of disbursing funds and employing attorit cannot avoid liability by placing the ages. Baker v. Smelser, 88 Tex. 26, 29 S. W. 378, 33 L. R. A. 163; Dwyer v. Bassett, 29 S. W. 815; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Railway Co. v. Faulkner, 118 S. W. 748; Ry. Co. v. Flory, 118 S. W. 1116; Ry. Co. v. Womble, 124 S. W. 111; Crowdus et al. v. Kahn Tailoring Co., 136 S. W. 1136. neys in the hands of a finance committee. 252-INSTRUCTIONS-CONFORMITY An instruction, unauthorized by any evidence in the case, is properly refused. [Ed. Note. For other cases, see Trial, Cent. 252.] The judgment of the trial court is re- Dig. §§ 505, 596-612; Dec. Dig. versed, and the cause remanded. BANKERS' TRUST CO. OF AMARILLO v. (Court of Civil Appeals of Texas. Appeal from District Court, Potter County; J. N. Browning, Judge. Action by Cooper, Merrill & Lumpkin against the Bankers' Trust Company of Amarillo, Texas. Judgment for plaintiffs, Amarillo. and defendant appeals. Affirmed. 1. CORPORATIONS 657-FOREIGN CORPORATIONS-CONTRACTS-PERMIT TO DO BUSI NESS. A foreign corporation can incur liability on a contract of employment of an attorney made in the state, before it obtains a permit to do business in the state. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2356-2541, 2550, 2552-2554; Dec. Dig. 657.] 2. CORPORATIONS 432-CONTRACT BY PRES IDENT-PRESUMPTION OF AUTHORITY. It may be presumed that the president of a corporation, employing an attorney for it, was authorized to do so, its directors having thereafter met and conferred with the attorney in reference to legal matters, especially where the corporation, sued for the services, offers no evidence denying the president's authority. R. E. Underwood, of Amarillo, and J. H. Synnott, of Dallas, for appellant. Jno. W. Veale, of Amarillo, and Del W. Harrington, of El Paso, for appellee. HALL, J. Appellees, a firm of lawyers, sued appellant for $2,632.65, alleging that appellant was a private corporation, chartered under the laws of the state of Arizona, July 16, 1912; that some time in the year 1912, acting through its duly authorized officers and agents, appellant employed appellees, as its attorneys, to generally advise said corporation in all legal matters pertaining to the conduct of its business, agreeing to pay appellees a reasonable sum for their services; that said services were rendered at the request of the then president and secretary of said corporation. The appellant's answer 3. CORPORATIONS 425-CONTRACT BY OFFI-admits that it was chartered under the laws When officers of a corporation make a con- of Arizona, obtained a permit to transact tract for it, which inures to its benefit, and the business in Texas in January, 1913. There [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. 432.] CERS-AUTHORITY-ESTOPPEL. was a general verdict in favor of the appel- charter is dated July 16, 1912. While a perlees in the sum of $1,000. mit to do business in Texas might be a con The first two assignments of error chal-dition precedent to the right of the company lenge the sufficiency of the evidence to sup-to file suit in Texas, it was not necessary for port the verdict and judgment. H. H. Coop- appellant to have a permit before it could er, a member of the firm, testified, in sub- incur liabilities, make contracts for services stance, as follows: and be sued in the state. Home Forum B. O. v. Jones, 20 Tex. Civ. App. 68, 48 S. W. 219, writ of error denied by Supreme Court, 93 Tex. 686, 50 S. W. xvi; Southern Pacific Co. v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441; Western Union Telegraph Co. v. Clark, 14 Tex. Civ. App. 563, 38 S. W. 225, writ of error denied by Supreme Court 93 Tex. 676, 38 S. W. 225. It is insisted that neither Logan nor Le Master had the right to employ appellees. During the time in which the services were rendered it appears that Logan and Le Master alternately filled the office of president, and it appears from the statement of facts that Logan was the originator and general manager of the affairs of the company. It is said in Catlett v. Starr, 70 Tex. 485, 7 S. W. 844: "Our firm was consulted in connection with our employment by the Bankers' Trust Company, by Mark Logan. We were consulted with reference to some matters of the Bankers' Trust Company, or rather I was consulted, and he sought my advice as secretary of that company, and I refused to advise him with reference to it because I understood that Mr. Penry was attorney for the company, and I told him that any advice given by me would have to come on request through their attorney, and I did not advise them because it was not asked by Mr. Penry. Later I was consulted by Mr. Le Master with reference to the same matter and made the same reply; then later Judge Penry, Le Master, and Logan all came to my office together. This was the latter part of September of the 1st of October, 1912. Le Master was president of the Bankers' Trust Company. After Judge Penry came and explained the situation to me, that he was not their attorney, except nominally, and that he was not willing to advise the people, and sought my advice in conjunction with them with reference to this matter, I agreed to consult and advise with them about the matter then under discussion. There was nothing said at that time as to the amount dent, or those representing him. When an act "Corporations usually act through their presipertaining to the business of the company is performed by him, the presumption will be indulged that the act is legally done." 2 Purdy's Beach on Private Corporations announces the rule to be: Id. § "An officer of a corporation may, by the acts of its directors or managers, be invested with capacity to bind the company, even beyond the scope of those powers which are inherent in his office; as, where in the general course of the company's business the directors or managers have permitted an officer to assume the control and direction of its affairs and have held him out to the public as its general agent." 779. "If a person assuming to act as agent of a corporation but without legal authority or an agent in excess of his proper authority make a contract and the corporation knowingly receive and obtain the benefit of it, this will be a ratification of the contract, and render the corporation liable as a party to it. In this manner ratification may be presumed of the acts of promoters, of the president, of a director, or other officer." of the fee. When we discussed the matters I arrived at the conclusion as to how they should be handled, and reported to Mr. Penry and discussed it with him and the other gentlemen. During the discussion they proposed to have our firm represent the company generally and advise with them, and we had a general discussion of the question of the fee. I told them I could not even estimate the fee because I did not know what the work would be. It was then suggested by Mr. Le Master and Mr. Logan-and I think Judge Penry was present-that we go ahead and help the company and help them out of the difficulty and help them get the property into the possession of the company, and they would pay a reasonable fee when the work was completed." That his firm examined abstracts of title and advised almost every day with the officers of the company, including some of the directors. That it had no permit to do business in Texas at that time, and one of the first things they discussed was the manner or method of securing the permit to do business in Texas so it could carry on its business and lend money on real estate. Upon investigation it was necessary to amend the Arizona charter, reducing the capital stock. That witness procured the amendment and assisted the officers in floating a loan of $100,000. That he made a trip to Dallas with reference to the loan, examined many the finance committee, composed of the diabstracts, wrote many deeds and other in-rectors, met and conferred with appellees struments, took a large number of notes for with reference to certain legal matters, and collection, and filed suit on several. That in is sufficient to warrant the jury in presuming January, 1913, he told Logan and Le Master that Logan and Le Master were authorized that their fee was $2,500 up to that time. They said the fee was entirely satisfactory and their services as counsel were continued. [1, 2] Appellant insists under these assign ments that the services rendered were at the instance of promoters and to assist promoters in perfecting the organization of the company. The record is clear, however, that the Section 203, Beach on Corporations, vol. 1, states the rule in this language: on behalf of a corporation, and within the scope "But a contract, regular on its.face, executed of its business by the president and secretary, is prima facie evidence of their authority to execute it, and in an action for its breach the burden of proof is on the party denying such authority.' The record shows that the directors and to employ appellees, especially since appel- torney to do certain acts on its behalf, will be presumed to have been authorized. **It seems that the president of a corporation will be presumed, in the absence of proof to the contrary, to have authority to direct the corporate litigation, and his power to employ an attorney to conduct the corporate litigation has frequently been sustained, in view of the nature of the authority vested in him. ***The authority of officers or agents of a corporation to enter into contracts of employment and appoint agents on behalf of the corporation may be inferred from the manner in which they have been permitted to transact the business of the corporation. It is not necessary, in order to charge a corporation for services rendered, that the directors at a formal meeting should either have formally authorized or ratified the employment. Thus, while the president has no inherent authority to enter into contracts of employment on behalf of the corporation, still this authority usually will be inferred when he is intrusted with the general management of the business of the corporation; so, if an officer employs a person to perform services for the corporation and it is performed with the knowledge of the directors, and they receive the benefit of such services without objection, the corporation is liable upon an implied assumpsit." The power of a president of a corporation to employ attorneys is discussed at great length in 2 Thompson's Corporation (2d Ed.) § 1433, in which the author cites Dallas Ice Factory, etc., Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 875, and announces the rule that it may be said generally that such an officer or manager has authority to employ counsel, and in general to do whatever is necessary in any litigation in which the corporation is directly interested, and which may be regarded as essential or necessary in advancing or protecting the corporate interests, including the power to employ attorneys to attend to the current legal business of the corporation. City of Austin v. Nuchols, 42 Tex. Civ. App. 5, 94 S. W. 336; Bank v. Eustis, 8 Tex. Civ. App. 350, 28 S. W. 227; Tex. Mfg. Co. v. Fitzgerald, 176 S. W. 891 (6). [3] Appellees invoke another rule, which we think may be applicable here, and which is that when the officers of a corporation have made a contract which inures to the benefit of the company, and the results of which are enjoyed by it, the company is estopped from denying that the officer so contracting was duly authorized. First National Bank of Greenville v. Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 828; Waxahachie National Bank v. Vickery, 26 S. W. 876; Hayward Lumber Co. v. Cox, 104 S. W. 403; Canadian Long Distance Telephone Co. v. Seiber, 159 S. W. 897. [4, 5] By its third assignment of error complaint is made of the action of the court in refusing to give special charge No. 3, to the effect that, if the jury believed from the evidence that at the time Logan, Le Master, and Penry had plaintiffs to perform services for appellant they were acting for the Amarillo Securities Investment Company or for themselves individually, and if the jury should further find that the agreement with they were acting for the Amarillo Securities Company or as individuals, the verdict should be for the defendants. The fourth paragraph of the general charge is: the said Mark Logan, Mike C. Le Master, and "If you find and believe from the evidence that J. L. Penry were not acting for the Bankers' Trust Company, at the time they engaged the services of plaintiffs (if they did engage them as alleged by plaintiffs), but were acting for themselves or for the Amarillo Securities Company, as promoters of the defendant company, and you further believe that plaintiffs' services were performed under such contract, then this defendant would not be liable for any services rendered for such promoters, and you will find for the defendants for all such services." It is This paragraph of the general charge submits the same issue which the requested instruction presents in the first part. true the requested instruction presents the issue of the agreement between Logan, Le Master, and Penry on the one part and plaintiffs upon the other, that the fee of $2,500 was reasonable. We do not find this issue submitted in the general charge, but since the verdict of the jury was for $1,000 only, the omission, if error, is harmless, since it is clear that the jury did not consider the agreement as to the amount of the fee. [6] Appellant insists that the court erred in overruling its fourth objection to the general charge and in refusing special instruction No. 6, upon the question of estoppel. There is evidence in the record tending to show that just before appellees presented their account for attorney's fees, Mark Logan had represented in an open meeting, at which appellees were present, that the company was not indebted to any one in any sum for attorney's fees, or otherwise. The question of estoppel is not raised by the pleadings, and the court could not properly have submitted it. Howe v. O'Brien, 45 S. W. 813; Ford v. Warner, 176 S. W. 885. [7] The fifth assignment is based upon the refusal of the court to charge the jury that if they found that, before plaintiffs informed Logan and Le Master of the amount of their fee, a finance committee had been organized with full power to look after such things, the verdict should be for the defendant. The services of appellees, according to the record before us, were performed, in a large measure, before the appointment of a finance committee, and the liability of appellant had already attached. Appellant could not avoid liability by placing the matter of disbursing funds and employing attorneys in the hands of a finance committee after the rights of appellees had accrued. Besides, it is not clear from the record that the matter of employing attorneys rested with the finance committee. [8] Appellant requested the court to charge the jury that if they should find from the evidence that at the time Mark Logan, Mike C. Le Master and J. L. Penry, or any of them, in favor of John F. Goodhue against C. A. Richardson, by reason of his suretyship for said sum or such amount or such part thereof as he may have to pay in satisfaction of said judgment. ices sued for, and at the time they agreed at the rate of 8 per cent. per annum, and, that the amount charged was satisfactory, as between appellants themselves, judgment they, the said Logan, Le Master, and Penry were interested adversely to appellant, or if they were seeking to profit personally at the expense of appellant, and that the plaintiffs knew of such fact, to return a verdict for the defendants. We do not think this issue is raised by the pleadings. There is no testimony showing that appellees had any knowledge of any fraudulent designs on the part of Logan, Le Master, or Penry, if any such designs existed; nor does the evidence warrant the conclusion that in the employment of appellees, Logan, Le Master, or Penry were acting in their own interest and adversely to the interest of the company. Finding no reversible error in the record, the judgment is affirmed. The appellants filed amended motion for a new trial, which being overruled, they gave notice and perfected an appeal to this court and gave a supersedeas bond, filed and approved by the clerk of the district court, with the Commonwealth Bonding & Casualty Insurance Company as surety. Attorneys for appellants and appellee filed in this court an agreement waiving the filing of briefs with the clerk of the trial court and the filing and giving notice of such filing by the clerk, and stipulating that it shall be sufficient if the attorneys for the appellants furnish a copy of their brief to appellee's attorneys and file copies thereof in the Court of Civil ApThe appel RICHARDSON et al. v. PEDEN IRON & peals before February 15, 1915. (Court of Civil Appeals of Texas. TO FILE-AFFIRMANCE. lants have filed no briefs in this court, and El Paso. appellee files a motion asking this court to enter an order affirming the judgment rendered in the lower court, and enter a judgment herein against the appellants and the surety on its supersedeas bond because of the failure to file briefs in this court. Where appellants failed to file briefs in the Court of Civil Appeals within the time provided in a stipulation waiving the filing of such briefs in the trial court, and no error in law was apparent on the face of the record, the judgment would be affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. 773.] We have carefully reviewed the record filed in this court, and, finding no error in law apparent on the face of the record, the judgment rendered in the trial court is affirmed, and now here rendered against the appellants and the said surety on the super Appeal from District Court, Harris Coun- sedeas bond. ty; Wm. Masterson, Judge. Action by the Peden Iron & Steel Company against C. A. Richardson, Jr., and another. Judgment for plaintiff, and defendants appeal. Affirmed. Herbert W. Reed and Minor & Minor, all of Beaumont, for appellants. Baker, Botts, Parker & Garwood, of Houston, for appellee. WALTHALL, J. Appellee, Peden Iron & Steel Company, brought this suit against appellants, C. A. Richardson, Jr., and John F. Goodhue, seeking recovery on a certain joint and several promissory note, executed and delivered by appellants to appellee in the sum of $4,503.57, payable to the order of appellee, bearing interest, and providing for the payment of attorney's fees. The petition is in the usual form of suits on promissory notes. Appellants appeared and filed separate answers and defenses. The case was tried to a jury. The court submitted the case to the jury on special issues, on each of which the jury made findings. On the return of the verdict the trial court rendered its judgment in favor of appellee and against appellants jointly and severally for the sum of $2,892.93, with interest thereon from August 24, 1914, ALLEN v. REED et al. (No. 469.) (Court of Civil Appeals of Texas. Oct. 14, 1915.) El Paso. 1. APPEAL AND ERROR 748- ASSIGNMENT OF ERROR-NUMBERING OMISSION-EFFECT. Where the brief on appeal presents assignments of error that do not conform to the Court of Civil Appeals rules for submission and briefing of cases, they cannot be considered by the court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. 748.] 2. APPEAL AND ERROR 680 - ASSIGNMENT OF ERROR-RECORD-FAILURE TO DISCLOSE- An assignment of error asserting error in the overruling of a special demurrer cannot be considered where the record fails to show that any such demurrer was presented to the trial court, or that any action was taken thereon, and there is no bill of exception to the failure of the court to pass upon the demurrer. ✨ [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882; Dec. Dig. 680.] 3. APPEAL AND ERROR 742-ASSIGNMENT OF ERROR-PROPOSITION-MOTION FOR NEW TRIAL-RECITAL. that the court overruled a demurrer is not sufThe recital in the motion for a new trial ficient to raise error thereon, since rule 31 of the Courts of Civil Appeals (142 S. W. xiii) re |