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MOSSOP y. ZAPP

685

knowing that it was not regular until more in the court below any relief whatever, but than two months after the time of filing had would have referred her to her contract which elapsed, seems to us to evidence such a want she was fully protected under that, and that of diligence in prosecuting the writ of error none of her rights had been invaded, and no as to require a dismissal of the appeal on wrong had been done to her directly or indirectmotion of the parties adversely interested.

ly, either legal or equitable, of which she could

complain and she would have been dismissed out Dismissed.

of court and adjudged to pay the costs of the proceedings. But inasmuch as the defendant

was willing to let her rescind the contract, howMOSSOP V. ZAPP. (No. 7159.)

ever beneficial it was to her and however bur

densome it was to him, then the court should (Court of Civil Appeals of Texas. Galveston. have stopped there; but for the court to have Nov. 4, 1915.)

gone further and put its hands in the plaintiff APPEAL AND ERROR Om767 - BRIEFS-STRIK- in error's pocket and take $150.00 of plaintiff

ING OUT-ABUSE OF LOWER COURT AND OP. in error's money and give it to the defendant POSING COUNSEL.

in error, this was a little more than ordinary A brief of appellant, alleging that the de- humanity could stand. We say that this act cree took his property and gave it to plaintiff of taking plaintiff in error's money and giving as a matter of charity, unauthorized by any ev- it to the defendant in error without any just idence, or by any principle of law or equity, that cause or without any legal or equitable ground it amounted to nothing more or less than judi- is nothing more nor less than judicial robcial robbery, that appellant, who was willing to bery. * let appellee rescind the contract, was prevented

"This he (plaintiff in error) was prevented from doing so by the advice of her counsel con- from doing by advice of counsel (referring to trary to her own interest induced by having counsel for defendant in error) who, according the trial court give him a verdict for his fool- to the undisputed evidence in this case, had adish advice, and a motion by appellee referring vised his client contrary to her own interest, and to opposing counsel in abusive and vituperative it appears that the inducement that he had language, would be stricken from the files on the in doing this is to have the trial court to give court's own motion, and appellant allowed 20 him $300 for the foolish advice which he had days to file a brief from which the objectionable given his client." language was expunged.

"Then an able counselor (referring to counsel [Ed. Note. For other cases, see Appeal and for defendant in error) appears upon the scene, Error, Cent. Dig. $ 3102; Dec. Dig. Om767.]

and by advice not based upon an investigation

she is induced to rescind or recede from this Error to District Court, Fayette County;

agreement.' Frank S. Roberts, Judge.

“We are willing to concede that the advice

which Mrs. Zapp's lawyer gave her was far Action by Mrs. Isolda Zapp against Y. F. more beneficial to Mr. Mossop than it was to Mossop. Judgment for plaintiff, and defend- Mrs. Zapp. It certainly saved Mr. Mossop over ant brings error. Brief of appellant and mo- $2,000.00.

It certainly cost Mrs. Zapp over tion of appellee to strike it from the files both “The plaintiff in error alleged that Mrs. stricken on the court's own motion, and ap- Zapp's attorney was willing to recommend to pellant allowed 20 days within which to file Mrs. Zapp the purchase of the bonds if plaintiff

in error would pay him a fee of $250.00, which another brief.

plaintiff in error alleged that he refused to

* * * John T. Duncan, of La Grange, for plaintiff do..*

"On special exceptions of defendant in error in error. C. D. Krause, of La Grange, for this allegation was expunged under the order of defendant in error.

the court. The record does not show this or

der of the court, but the defendant's answer PLEASANTS, C. J. Appellee has filed a shows that the allegation was erased. For this motion asking that the brief of appellant be on this issue, and hence no evidence was intro

reason the court refused to hear any evidence stricken from the files of this court because duced in support of it.” of the abuse and vilification therein contain

That this language is improper and could ed of the trial judge and of counsel for ap- serve no useful purpose in fairly presenting pellee.

to this court the issues raised by this apThe following excerpts from appellant's peal must be fully recognized by the distinbrief copied in the motion are, upon exami- guished lawyer who signs appellant's brief. nation, found to be correct copies:

The greatest latitude should be allowed coun“Because the decree of the court

sel in presenting their arguments in an apwas an indirect attempt on the part of the court to take the property of the defendant and give pellate court; but whenever they allow their it to plaintiff as a matter of charity."

personal animosities to control them, and in"The plaintiff in error, Mossop, does not feel dulge in abuse or vilification of opposing that the trial court had the right to run his counsel, or speak disrespectfully of the trial hands into his pockets and take his money and give it to the defendant in error for her to com court, they exceed their rights and evidence pensate her counsel for giving the advice that a want of proper respect for the court in she received. * * *

which such argument is presented. In a re"The judgment of the court in taking the property of plaintiff in error and giving it to cent case in which we, upon our own motion, the defendant in error was an act of charity to struck from the files of this court a motion say the least of it, on the part of the court, for rehearing because it contained abusive which was unauthorized by any evidence in the and vituperative language in regard to opcase and by any principle of law or of equity known to our jurisprudence. If the court had posing counsel, we said: wanted to have done an act of kindness for the “We cannot permit the records of this court plaintiff, he would have denied to the plaintiff to be made a channel through which attorneys or parties may cast abuse and vilification upon The judgment was on December 9, 1914, and each other, and our files cannot be used to pre- the transcript shows that the term of court serve documents containing violent and abusive language of the kind contained in this motion. expired on the 12th day of December, 1914. It evidences a lack of proper respect for this The court filed findings of fact on January 5, court for counsel to present to it a motion of 1915, or more than 10 days after the adjournthis character, and such action might properly ment of said term. Article 2075, Vernon's be treated and punished as contempt." The motion filed by appellee in its abusive of fact and conclusions of law shall be filed

Sayles' Statutes, provides that such findings and vituperative language in reference to op- within 10 days after the adjournment of posing counsel is on a par with the foregoing court. A bill of exceptions was duly reservexcerpts from appellant's brief, and we will led to the failure of the court so to file such permit neither of them to remain on file in findings of fact and conclusions of law as this court. Attorneys who practice in this prescribed by statute, and there is no statecourt must understand that we will never ment of facts in the record. This assignpermit an argument to be made or filed in ment must be sustained, because it has often this court which, by its abuse of the trial been held in this state that such findings of court or of opposing counsel, shows a want fact and conclusions of law, filed more than of proper respect for the dignity of our 10 days after the expiration of the term of courts, the agency created and commissioned court, are a nullity and cannot be considered by the people of the state to interpret and by the Court of Appeals. Wandry v. Williams, enforce their sovereign will as expressed in 103 Tex. 91, 124 S. W. 85; Emery v. Bartheir laws, and all the power of this court field, 156 S. W. 313; Bradford v. Knowles, will be exercised to secure a proper recogni- 11 Tex. Civ. App. 572, 33 S. W. 149; State tion and observance by attorneys of the rules ex rel. Sutherland v. Pease, 147 S. W. 619; of decorum necessary to an orderly and dig- Guadalupe County v. Poth, 153 S. W. 919; nified administration of law by the courts. M., K. & T. Ry. v. Cameron & Co., 136 S. W.

The brief of appellant and the motion of 74; Bliss v. San Antonio School Board, 173 appellee will both be stricken from the files S. W. 1176. of this court and returned to their respec- Having sustained this assignment, we tive authors, on the court's own motion. Ap- would not be justified in attempting to pass pellant will be allowed 20 days in which to upon the other assignments of error; and, file a brief from which the objectionable lan- for that matter, the things therein complainguage before quoted has been expunged. ed of will doubtless not arise upon another

trial.

The judgment of the trial court is reversed,

and the cause remanded for trial. INTERNATIONAL & G. N. RY. CO. v.

MUDD. (No. 5517.) (Court of Civil Appeals of Texas San Antonio. Oct. 27, 1915.)

BONNER OIL CO. v. GAINES. (No. 6962.)* TRIAL O403_DELAY IN FILING FINDINGSEFFECT.

(Court of Civil Appeals of Texas. Galveston. Where the trial court, upon timely request, June 16, 1915. On Motion for Rehearfailed to file findings of fact within the 10 days

ing, Oct. 21, 1915.) after expiration of the term allowed by Vernon's Sayles' Ann. Civ. St. 1914, art. 2075, his sub-1. PRINCIPAL AND SURETY C35 – CREATION

OF RELATION - CONSIDERATION-EXTENSION sequently filed findings of fact and conclusions

OF PAST-DUE INDEBTEDNESS. of law were a nullity, and could not be consid

A creditor's extension of the payment of a ered by the Court of Civil Appeals.

past-due indebtedness from a corporation upon [Ed. Note. For other cases, see Trial, Cent. receiving its 60 or 90 day notes would support Dig. $S 913, 954–956; Dec. Dig. Om403.)

a contract of suretyship evidenced by the inAppeal from Frio County Court; S. T. dorsement of its president.

[Ed. Note.-For other cases, see Principal and Dowe, Judge.

] Action by G. H. Mudd against the Inter- Surety, Cent. Dig. $ 68; Dec. Dig. em 35.

2. PAYMENT On 7 - TIME-EXTENSION-PASTnational & Great Northern Railway Compa

DUE INDEBTEDNESS. ny. Judgment for plaintiff, and defendant

A creditor, extending a past-due indebtedappeals. Reversed and remanded for trial. ness, by accepting the 60 and 90 day notes of a

debtor conclusively bound himself not to collect Cobbs, Eskridge & Cobbs, of San Antonio, the debt until the maturity of the notes. and Wilson, Dabney & King, of Houston, for [Ed. Note. For other cases, see Payment, appellant. Magus Smith, of Pearsall, for ap- Cent. Dig. 8 11; Dec. Dig. Om7.] pellee.

On Motion for Rehearing.

3. APPEAL AND ERROR Om 493 RECORD CARL, J. Appellee recovered the judg

SHOWING JURISDICTION. ment against appellant for damages to a A default judgment against a defendant will shipment of stock from Dilley to Ft. Worth. be reversed where the record fails to show servThe first assignment of error complains that ice of citation, other than by the recital there

of in the judgment. the court erred in failing to file findings of

[Ed. Note.-For other cases, see Appeal and fact and conclusions of law, after timely re- Error, Cent. Dig. $8 2282-2284; Dec. Dig. Om quest, within the time prescribed by law. 1 493.] em For other cases see same topic and KEY-NUMBER in all Key-Numbered Dig and Indexes

Tex.)

BONNER OIL CO. V. GAINES

687

4. APPEAL AND ERROR 880—PARTIES ENTI-, time for the payment of the debt due by the TLED TO ALLEGE ERROR. In an action against a corporation on its

canal company, and that therefore there was notes and against its president as surety there a valid consideration. To this the defendon, where the surety's pleading did not seek any ant Gaines replied that there was no specific relief against the corporation by reason of his agreement for the extension of time for the suretyship, and where the corporation did not appeal from a default judgment against it re- payment of the debt due by the canal comversible on the ground that the record failed to pany at the time he signed the notes, and show service against it, the surety could not that the plaintiff never requested him to sign raise the question of the want of a valid judg- the notes, and that the same were signed ment against the corporation.

[Fd. Note.-For other cases, see Appeal and by him without request and without considError, Cent. Dig. $8 3584-3590; Dec. Dig. Om eration. He also pleaded that the purpose of 880.]

executing the notes was, to settle all con5. APPEAL AND ERROR Ow724-ASSIGNMENTS troversy as to the amount and validity of OF ERROR_SUFFICIENCY.

Under Rev. St. 1911, 'art. 1612, requiring the debt due plaintiff by the canal company, , the plaintiff in error to file in the court below and not for the purpose of securing an exall assignments of error distinctly specifying tension of time, or to limit the time within the grounds on which he relies, and declaring which plaintiff could sue on the debt. The that all other errors shall be waived, assignments sufficient to direct the appellate court's case was tried before the court without a attention to the errors complained of were suffi- jury and resulted in a judgment by default cient.

against the defendant Lake Austin Canal [Ed. Note.-For other cases, see Appeal and Company for $990.40, together with $49.38 Error, Cent. Dig. $82997–3001, 3022; Dec. interest and $100.93 attorneys' fees, aggregatDig. Om724.] 6. PRINCIPAL AND SURETY Cm163–JUDGMENT ing $1,143.67, and in favor of defendant John -RELIEF TO SURETY—PLEADING.

W. Gaines. From the judgment in favor of In an action against a corporation on its defendant Gaines, the plaintiff has prosecutnotes and against its president as surety there ed a writ of error to this court. on, where the surety sought no relief over against the corporation, a judgment against the Appellant by several assignments of error surety was not required to be so framed as to complains, in different ways, of the action subject the property of the principal to its of the court in rendering judgment in favor satisfaction before proceeding against the surety for its collection.

of defendant Gaines; the gravamen of the [Ed. Note. For other cases, see Principal and complaint being that the undisputed evidence Surety, Cent. Dig. SS 446-454; Dec. Dig. Om shows that the act of said Gaines in signing 163.]

the notes sued upon was based on a sufficient Error from District Court, Harris County; consideration to render his promise to pay Wm. Masterson, Judge.

them a binding obligation upon his part. Action by the Bonner Oil Company against The following is a statement of the mathe Lake Austin Canal Company and John terial undisputed facts as shown by the recW. Gaines. Judgment for plaintiff against ord: The Lake Austin Canal Company was the Canal Company and in favor of defend-a corporation duly chartered under the laws ant Gaines, and plaintiff brings error. Re- of Texas, and at the time at which plaintiff's versed, and judgment rendered for plaintiff. cause of action arose was, and so far as the

Its Hunt, Myer & Teagle and Rodman S. Cos- record shows is now, a going concern. by, all of Houston, for plaintiff in error. capital stock was $18,000, and was owned Gaines & Corbett, of Bay City, and Cole & in equal amounts by defendant John W. Cole, of Houston, for defendant in error.

Gaines, his son, C. M. Gaines, and Ed Savage.

John W. Gaines was its president, and Ed McMEANS, J. The Bonner Oil Company Savage its secretary and general manager. brought this suit against the Lake Austin The Bonner Oil Company, plaintiff, was Canal Company, a corporation, and John W. engaged in selling lubricating oils; and in Gaines, on two promissory notes alleged to endeavoring to make sales to the Lake Aushave been executed to it by the defend- tin Canal Company, its agent, Mr. J. H. ants, each for the sum of $445.20, dated Bland, called upon Mr. Savage and solicited February 3, 1914, bearing 8 per cent. per him to buy, and was referred by Savage to annum interest and maturing 60 and 90 days Mr. Gaines, and after talking the matter after date, respectively. The defendant Lake over with Mr. Gaines the latter told the Austin Canal Company failed to appear and agent to go back to Mr. Savage and tell him answer. The defendant Gaines answered, to order what he wanted. Savage thereafter pleading want of consideration on his part ordered from time to time oil in such quantifor the execution of the notes which he al- ties as he desired, the value of which leged were given for a debt due by the canal amounted to $890.40, no part of which was company to plaintiff, and that he was not ever paid. Afterwards the Bonner Oil Cominterested in such debt except as a stock- pany began trying to collect this sum, and to holder in the defendant canal company. this end its said agent, Bland, went to Bay Plaintiff, in reply, pleaded that the execution City, where the principal office of the corof the notes by defendant Gaines was done poration was located, and where the defendfor the purpose of securing an extension of ant Gaines lived, to see Mr. Gaines with reference to payment; but Mr. Gaines was wrote to the plaintiff asking for a further away, and Bland did not then see him. Lat- extension of time in which to pay the same. er he again went to Bay City for the pur- In this letter, which is dated April 27, 1914, pose of making a collection, his purpose be- he says: ing to either collect the amount due, or a "In this connection I wish to say that if part of it, or to close the account with notes, you will do so (extend time of payment until and carried with him blank notes to be filled fall) the Lake Austin Canal Company will very out and executed, in the event the amount until fall, as it is practically impossible for them

much appreciate you carrying this account over was not paid. He called upon Mr. Gaines to pay it at this time, and get through this seaat his office, and the latter, after Mr. Bland | son's work. I will re-indorse this paper, payhad stated that his purpose in calling was able in the fall, and if you will do as 'above to get some money on the debt, stated to me and to the canal company."

suggested, it will be a great accommodation to Bland that the corporation had not sold

It is undisputed that the debt was due at its rice at that time, and that they had had bad luck, whereupon Bland presented the the time the notes were executed, and that blank notes which were filled out for equal the time of payment was extended 60 and 90

. amounts, aggregating the amount of the debt. days by the giving of the notes.

Under the facts as above stated, the court and were signed by the corporation by Mr. Gaines as its president and also signed by held that the signing of the notes by John him in his individual capacity, and as thus W. Gaines was without consideration, and signed were handed to Mr. Bland. Bland upon this view rendered judgment in his fatestified that when he handed the notes to vor; and in so doing, we think, committed Gaines for execution he said to him, in sub

error.

[1] When Mr. Bland accepted the notes by stance:

“Mr. Gaines, we would be glad to have the which the time of payment of the debt was notes, because they will help us out with the extended 60 and 90 days, Mr. Gaines had bank; we might be able to handle the notes at signed his name thereto as surety. Mr. the bank, and get the money, and if we can Bland did not request him to become surety accommodate you, we will do it in that way.”

upon the notes in so many words, but that He further testified that, when Gaines re- he expected Mr. Gaines to sign them is turned the notes to him after signing them, shown by his uncontradicted testimony that he stated :

he would not have accepted them had not "Mr. Bland, I am doing this for you, I don't Mr. Gaines so signed them. The corporation for the company; I don't often do this, or this is something I haven't often done, or something desired further time for payment, and hence to that effect, and I thanked him for it, and was willing to execute the notes which bore said I appreciated it very much that he did 8 per cent. interest in lieu of the debt which do it."

drew less interest, if any at all. Mr. Gaines, He further testified:

for his corporation, desired that the exten“If Mr. Gaines had simply given me two notes of the corporation, and had not executed the sion be granted, and was willing to and did rotes himself, I would not have accepted them." sign his name to the notes which effectuated

He did not request Mr. Gaines to sign the extension. That he considered himself the notes individually, nor did he tell him bound as a surety is conclusively shown, we that he would not accept the notes of the think, by his letter written after the note corporation without his individual signature. first maturing fell due, in which he re

Mr. Gaines, testifying as to the circum- quested a further extension of time of paystances under which he signed the notes, ment until fall and agreeing to re-indorse stated:

the note if the corporation would grant such "Mr. Bland came into the office and told me, extension. as he stated, that the company needed the notes, [2] It seems to be well settled that the exor could use the notes, or something to that tension of time of past-due indebtedness will effect, and they asked to close the account with a note, or two notes, divided into two equal support a contract of suretyship. The plainamounts, and make them payable 60 and 90 days tiff made no express promise to Gaines to after date, and after discussing it a little forbear to sue, or to extend the time of paywhile we agreed to that. The purpose, as stated by Mr. Bland, was just to enable them to use

ment. The negotiations were brief, conthe paper as collateral at the bank, that they sisting of a demand upon Gaines, as presimight do it; he didn't say they would do it; dent of the debtor corporation, for payment he said they might need them, and that if they of a past-due debt, a statement by him of the did they could use them to hypothecate them inability of the corporation to pay it and the sole reason assigned for wanting the account the reason why, the production of the notes settled by notes."

and their execution by Gaines for his prinHe further testified:

cipal and himself, and the return to and ac"I have been puzzled several times myself ceptance thereof by Bland. The execution just why I did sign the paper at the time, to of the notes amounted to an extension of tell you the honest truth, and I couldn't tell time by the plaintiff, but the notes would

. I why I indorsed that paper. * * * It is a not have been accepted and the time extendmystery to me."

ed if Mr. Gaines had not signed them indiAfter the note, which matured 60 days vidually. By accepting the notes the plainTex.)

BONNER OIL CO. V. GAINES

689

the debt until the maturity of the notes. It agreement to delay the collection of a precedent parted with its absolute right to sue and debt is a sufficient consideration to support the collect at once. Hannay v. Moody, 31 Tex. Hannay v. Moody, 31 Tex. promise of a third person.

From the facts stated and the authorities Civ. App. 88, 71 S. W. 325.

In 2 Pars. Con. (6th Ed.) p. 5, it is said: quoted it follows, we think, that John W. “If the original debt or obligation is already Gaines, by executing the notes for the debt incurred or undertaken previous to the collat- of the Lake Austin Canal Company, bound eral undertaking, then there must be a new himself, upon a sufficient consideration, to and distinct consideration to sustain the guar-pay them, and therefore that the judgment in anty. * * * It is not necessary that any consideration pass from the one receiving the his favor was erroneous, and should be set guaranty to the party giving it. If the party aside, and that judgment should be here for whom the guaranty is given receive a ben- rendered in favor of the Bonner Oil Company efit, or the party to whom it is given receive against him on said notes for the principal, an injury, in consequence of the guaranty, and as its inducement, this is a sufficient considera- interest, and attorneys' fees, and it has been tion."

so ordered. So in 1 Pars. Cont., p. 443, it is said a

Reversed and rendered. waiver of any legal or equitable right is a sufficient consideration for a promise.

On Motion for Rehearing. In Hannay v. Moody, supra, a case quite In his motion for rehearing, defendant in similar in many of its material facts to the error, Gaines, contends that the action of present, this court said:

this court in reversing the judgment of the “By the acceptance of the notes, which, by court below in his favor, and in here render their terms, were not payable until the lapse of ing judgment against him, was erroneous for 90 days, Moody & Co. effectually bound them- the reason that the record does not show that selves not to collect it earlier, and thus abandoned their legal right to proceed at once against the trial court had jurisdiction to render their debtor. The inference from these facts is judgment against his codefendant, the Lake a conclusion of law which they could not be Austin Canal Company; and, the judgment heard to question except on the ground of fraud or mistake. That they might have proceeded in of this court being against him as a surety attachment sooner than the due date, if suffi- on the note of the canal company, no judgcient grounds existed, can make no difference. ment could be rendered against him as a sureThey parted with their absolute right to sue ty without a valid judgment against the and collect at once, and had left to them the right to sue only 'under extraordinary condi- canal company to support it. His contention tions."

that the record fails to show that the trial And it was held that the contract of the court had jurisdiction to render judgment sureties, who signed the notes there sued up against the canal company is based upon the on, was binding upon them, although the fact that judgment was rendered against said only consideration therefor was the exten- company by default, and the record fails to sion of time of payment of the past-due in-disclose that the canal company had been debtedness of their principal.

served with citation, other than by the recital In Thompson v. Gray, 63 Me. 230, cited in of that fact in the judgment itself. Ilannay v. Moody, after holding that a prom

[3] If, in these circumstances, the Lake issory note given by one person for the ante- Austin Canal Company had appealed, we cedent debt of another is not void for want would have felt, under the rules laid down of consideration, if it is made payable at in the following cases, that it was our duty a future day, says:

to reverse the judgment against it: Daugher“Such a note necessarily operates as a sus- ty v. Powell, 139 S. W. 625; McMickle v. pension of the right of the creditor to enforce Texarkana Nat. Bank, 4 Tex. Civ. App. 210, payment of his debt till the note matures; and 23 S. W. 428; Glasscock v. Barnard, 125 S. it is a rule of law too well settled to require the W. 615; Mayhew v. Harrell, 57 Tex. Civ. citation of authorities in support of it that such a suspension of the right of the creditor to en-App. 509, 122 S. W. 957; Wheeler v. Phillips, force payment of his debt is a sufficient con- 22 S. W. 513. sideration for the promise of a third person to [4] But the Lake Austin Canal Company pay it. It is not necessary that there should be did not appeal from the judgment against it, an express agreement for delay. The taking of a new security payable at a future day, by op- and Mr. Gaines not having, in his pleadings, eration of law, and without any special agree- sought any relief against the canal company ment to that effect, imposes upon the creditor by reason of his suretyship, the question the duty of waiting for his pay till the new raised cannot be presented for the canal comsecurity matures." To the same effect are York v. Pearson, 63 pany by its codefendant, Gaines, and is not

therefore properly before us for review. Me. 587; Fulton v. Loughlin, 118 Ind. 289, 20 N. E. 796; and Bank v. Bridgers, 98 N. C. erred in considering the assignments of er

[5] He further contends that this court 67, 3 S. E. 826, 2 Am. St. Rep. 317.

ror presented by the plaintiff in error, for the In Fulton v. Loughlin, supra, it is said: “But a promissory note negotiable according reason that such assignments do not present, to the law merchant, is not void for want of for the consideration of this court, the quesconsideration, if it be given for the antecedent tions considered and determined by it. A debt of a third person and be made payable at similar contention was raised by the defenda future day. Such a note operates to satisfy the debt, prima facie, or at least to suspend the ant in error in his brief and considered by the right of the creditor to enforce payment until court in passing upon the case, and it was the note matures, and an express or implied 'our conclusion then, and is now, that the ob

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