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FOX v. FOX

885

fact that Mr. Fox wrote to her on February | along this line, including that of Manton, the 13th, before their marriage, that he did not Ezells, and others. think either of them would want to live on [2] There is no doubt that a long-continued the ranch, and that he would keep a house in absence from the state or county, such as is town. On February 6th he wrote that his shown in the Michael Case, 34 Tex. Civ. App. son would give up the cottage on Ulvalde | 630, 79 S. W. 76, where the plaintiff had been street when wanted.

residing in Illinois for more than sixteen There is other evidence that Mr. Fox had years prior to the filing of the suit, would not stated to divers people that he did not intend harmonize or be a substantial compliance to live on the ranch, and the further fact with the requirement that the party must be that he took a guaranty of title, of date an actual bona fide inhabitant of the state March 20th, in which he gave his residence for the legal time prior to exhibiting the petias Bexar county, Tex., together with the fur- tion; or, as in the Haymmond Case, 74 Tex. ther fact that on April 26, 1915, he brought 414, 12 S. W. 90, where the plaintiff left his wife and her trunk to San Antonio and his family in Bell county in 1881 and went paid her room rent and occupied the room to Central America, where he stayed for with her.

many years, and then returned to Bell county So we have the positive statement of Mrs. and filed his suit, alleging that he had never Fox that San Antonio had been her home for abandoned that as his home.

Of course, six years next preceding the filing of the there is a distinction between a legal resipetition; that she had never abandoned it, dence for the purpose of voting, etc., and a and had been away only on trips for her residence contemplated by the divorce stathealth, pleasure, or business. She explained ute. In the Haymmond Case, however, Judge the affidavit made in, St. Louis by saying that Henry, speaking for the court, expressly statshe told the clerk before whom it was made ed : that she was in St. Louis a part of the time,

“We do not think that a temporary absence where she was staying with a sister. A great state during the six months next preceding the

from the state or county of an inhabitant of the part of the year preceding the filing of the filing of his petition for divorce would affect his petition for divorce she was out of the state, right to maintain it." in St. Louis, Chicago, and other places; but And so it was held by Chief Justice Rainshe says that these trips were made on the ey, speaking for the Dallas court in the case advice of physicians, for her health, and in of McLean v. Randell et al. (Civ. App.) 135 looking after her business interests in Illi- S. W. 1119, in dealing with a case where nois, as well as partly for pleasure. It is Mrs. McLean left Sherman and went to even made to appear that she was out of Beaumont, where she resided with a married Bexar county more than she was in the coun- daughter for several months, that the disty during that year, if we consider the time trict court of Grayson county had jurisdicthey lived at the ranch, which is said to be tion of her cause of action for divorce. in wedina county.

The construction of any law ought to be [1] The question of whether parties have a reasonable and common sense construction, or have not resided in the county six months and, if we were to construe article 4632 of or been bona fide inhabitants of the state for the Revised Statutes as requiring that a twelve months before the petition is filed, party should spend the entire year in the while jurisdictional in its nature and neces- state or the entire six months in the county sary to be established before a divorce will before bringing a suit of that nature, we be granted, is nevertheless a question of fact think it would be an unreasonable constructo be determined like any other issue in the tion. Many people in good faith claim San case, and, the trial court having heard the Antonio, for instance, as their home; but evidence and determined that issue in favor their business calls them away to such an of appellee, or in favor of the jurisdiction of extent that they may spend more time away the court, we would not be authorized to dis- from this county than they do in it. This is turb that finding, where there is as much evi- notably true of some traveling salesmen, and dence as there is in this record that Mrs. yet they have no home anywhere else. Would Fox had lived here six years and had never it be just for such a person to be denied the abandoned her residence.

jurisdiction of the courts of the county Supposing that appellant's ranch is in where his home is? Or, if a person falls into Medina county, that fact, which is relied upon bad health, and it becomes necessary to leave to break the continuity of residence in Bexar his home for the purpose of obtaining a cure, county, is itself a disputed issue; that is, should he thereby lose the protection the as to whether their residence there was mere- laws of his home give him? We do not bely temporary, or whether it was intended to lieve that absence in cases of this kind de be permanent. She testified that it was only stroys the bona fides of residence, nor do we a sojourn, temporary in its nature, and that think that the fact that Mrs. Fox's health neither of them ever intended to make that and business affairs called her away from their home, but that both of them recognized San Antonio a great deal would preclude her that their home was in San Antonio. There from maintaining her suit in Bexar county,

been her home for six years, and that her 2. EVIDENCE 185-BEST EVIDENCE-SECabsence was made necessary in the manner ONDARY EVIDENCE OF DEED. detailed: The Thirty-Seventh district court lien, plaintiff alleged that the original deed to

Where, in a suit to foreclose a vender's of Bexar county did have jurisdiction to en- the land was in defendant's possession, and that tertain the bill for divorce.

the latter had been duly notified to produce the [3] There is another reason, independent same and had failed to do so, there was a propof the divorce phase of the case, which would tents of the original deed by means of the deed

er predicate for secondary evidence of the congive appellee the right to maintain this ac- record. tion in Bexar county, which is the allegation, [Ed. Note. For other cases, see Evidence, supported by testimony, that money was Cent. Dig. $8 642–660; Dec. Dig. Cw185.] furnished to the defendant for the purpose 3. JUDGMENT Cm951 – ADMISSION IN EVIof being loaned upon real estate securities

DENCE.

In suit to foreclose a vendor's lien, where in the name and for the benefit of the plain- the only objection to the original judgment of tiff below, but that the defendant, instead partition admitted in evidence to show that tiof so loaning the money, converted it to his tle to the purchase money notes was vested in own use in this county, or placed it upon se ed title to land and had never been recorded, its

plaintiff's wards was that such judgment affectcurities and retained the evidence thereof in admission was proper. his own name, refusing to deliver the same [Ed. Note.--For other cases, see Judgment, to Mrs. Fox. In other words, she charges Cent. Dig. $$ 1808–1812; Dec. Dig. Om951.) that he practiced fraud upon her in Bexar 4. BILLS AND NOTES O 129–SUIT AS ELECcounty, Tex., and that some of the property

TION TO DECLARE DUE. is there situated. Her petition specifically and for personal judgment against maker and

Where, in suit to foreclose a vendor's lien sets these matters out, and asks that a re-indorser of the purchase-money notes, the notes sulting trust be established and fixed upon contained stipulations that a failure to pay one said properties. This would bring it square- when due should, at the election of the holder, ly within the provisions of section 7 of the mature both notes, one of the notes being long

past due when suit was brought, the instituexceptions to article 1830 of Vernon's Sayles' tion of suit was of itself sufficient to show an Statutes. It is well established in Texas that election by the holder to declare the second a wife may maintain a suit against her hus- note due. band for the protection of her separate prop- Notes, Cent. Dig. $s 283-292; Dec. Dig. Om

Ed. Note. For other cases, see Bills and erty, and the petition in this case does not 129.] seek to deal with community property. Dority v. Dority, 96 Tex. 222, 71 S. W. 950, 60 Appeal from District Court, Comanche L. R. A. 911. And if she has instituted such County ; J. H, Arnold, Judge. a suit for the protection of her separate Suit by Austin Thomas and others against property, and the alleged fraudulent acts of H. L. Stewart and another. Judgment for the defendant were committed in Bexar plaintiffs, and the named defendant appeals. county, there is no reason why this suit Reversed and remanded for another trial as should not there be maintained. O'Brien v. to appellant. Hilburn, 9 Tex. 297; Ryan v. Ryan, 61 Tex. Kearby & Kearby, of Comanche, for appel473; Hall v. Hall, 52 Tex. 298, 36 Am. Rep. lant. Smith & Palmer, of Comanche, for ap725; Price v. Cole, 35 Tex. 471. In the case pellees. of Dority v. Dority, supra, we find a very learned discussion by Judge Williams.

DUNKLIN, J. H. L. Stewart purchased a The judgment of the trial court is in all tract of land from J. H. Magness, and in things affirmed.

part consideration therefor executed two promissory notes for $250 each, one payable

November 1, 1913, and the other one year STEWART v. THOMAS et al. (No. 8252.) later. Thereafter the notes were sold to W. (Court of Civil Appeals of Texas. Ft. Worth. Thomas by Magness, who duly indorsed Oct. 30, 1915.)

them. Later, in a certain suit for partition, 1. VENDOR AND PURCHASER em 253 – VEN-styled Ada Thomas v. W. Thomas, the inDOR'S LIEN – FORECLOSURE – UNCERTAINTY dorsee, the notes were set aside to Austin AS TO LAND SOLD.

Thomas and other minors. The guardian of Where the description of land in a deed these minors instituted this suit to recover was defective as showing only three surveyor's calls, while the only description of the land in personal judgment against the maker and inthe purchase notes was by reference to the dorser, and also for a foreclosure of the vendeed, in suit on the notes to recover personal dor's lien upon the land for which they judgment against the maker and indorser, and were executed, and from a judgment against also for foreclosure of the vendor's lien, decree of foreclosure was erroneous, in the absence of both defendants for the relief prayed for H. proof that the omission in the description was L. Stewart has appealed. by mutual mistake of the parties, or proof to [1, 2] In plaintiff's petition it was alleged show what property they really intended should that, through clerical error in drafting the be conveyed. [Ed. Note.-For other cases, see Vendor and

deed from Magness to Stewart, one of the Purchaser, Cent. Dig. 88 637-610; Dec. Dig. calls in the description of the land was inadOn 253.]

vertently omitted, such omission being a

Tex.)

HOLMES v. TYNER

887

mutual mistake of the parties; that the land against appellant Stewart is reversed, and which they intended to be embraced in said the cause is remanded for another trial as deed was the tract correctly described in the to him; but the judgment against defendant petition. The judgment of foreclosure de- | Magness, who has not appealed, is undisscribed the land according to the alleged cor- turbed. rected description. The deed executed by Magness to Stewart at the time the notes

HOLMES v. TYNER. (No. 837.) were executed was introduced in evidence

Amarillo. and also the notes. The description of the Court of Civil Appeals of Texas. land contained in the deed showed only three

Oct. 30, 1915.) surveyor's calls and was wholly insufficient 1. PRINCIPAL AND AGENT 23-AUTOMOBILE

-SALE REPUDIATED AGENT SUFFICIENas a predicate for the foreclosure, while the

CY OF EVIDENCE. only description embraced in the notes was

In an action by an automobile dealer for by reference to the deed. No evidence was the value of a car purchased by defendant from introduced to sustain the allegation that one representing himself as agent for plaintiff,

evidence held to support a finding of agency. such omission in the description was by

[Ed. Note. For other cases, see Principal and mutual mistake of the parties, or to show | Agent, Cent. Dig. $ 41; Dec. Dig. Om 23.] what property the parties to the deed really 2. PRINCIPAL AND AGENT Cw14 – IMPLIED intended should be conveyed; and, in the ab AGENCY. sence of such proof, the decree of fore The relation of principal and agent does not closure was erroneous. The deed from Mag. also by implication from the words and conduct

arise from an express appointment merely, but ness to Stewart had been recorded in the of the parties and the circumstances of the pardeed records of Comanche county, and this ticular transaction. record was introduced in evidence instead [Ed. Note. For other cases, see Principal and of the original or a certified copy. Stewart Agent, Cent. Dig. Sg 26–33; Dec. Dig. Om 14.] objected to this proof on the ground that it 3. HUSBAND AND WIFE On 2334-AGENCY OF was secondary evidence and plaintiff had

WIFE-SCOPE OF AUTHORITY. failed to file with the papers a certified copy value of a car purchased by defendant from one

In an action by an automobile dealer for the of the deed and give notice to Stewart of representing himself as agent for plaintiff, evisuch filing. But, as shown in the court's dence held to warrant a finding that plaintiff's explanation of the ruling, plaintiff had al- wife was his agent with authority to employ

salesmen. leged that the original deed was in the pos

[Ed. Note. For other cases, see Husband and session of Stewart, and he had been duly Wife, Cent. Dig. $$ 145, 146; Dec. Dig. Om notified to produce same upon the trial and 2334.] had failed to do so. This showed a proper 4. PRINCIPAL AND AGENT 100 – GENERAL predicate for secondary evidence of the con MANAGER-SCOPE OF AUTHORITY-How DE

TERMINED. tents of the original deed.

A general agent for the management of a [3] Likewise, there was no error in admit- business has authority, coextensive in scope with ting in evidence the original judgment of the business intrusted to him, to do what is partition in the suit of Ada Thomas v. W. customary in such business; consideration being Thomas to show that title to the notes de given to the character of the business and the

usual manner in which it is conducted. scribed in plaintiff's petition was vested in

[Ed. Note.-For other cases, see Principal and plaintiff's wards; the only objection offered Agent, Cent. Dig. $8 262–273, 345, 364, 368–373; to such proof being that said judgment af- Dec. Dig. Om100.] fected title to land, and had never been re- 5. PRINCIPAL AND AGENT 103 - BUSINESS corded in the deed records of Comanche NECESSITY AUTOMOBILE DEMONSTRATOR

IMPLIED AUTHORITY. county.

Where it appeared that to succeed as a go[4] The notes in suit each contained a ing concern the nature of plaintiff's business restipulation that a failure to pay same or any quired that salesmen travel about the country installment of interest thereon when due to demonstrate and sell cars, and the facts show should, at the election of the holder, mature thorize another to act as such agent, a sale by

an implied intention on plaintiff's part to auboth notes. One of the notes was long past the latter was binding on plaintiff, since such due when the suit was instituted, and the agent had implied authority to sell. institution of the suit to collect both was

[Ed. Note. For other cases, see Principal and of itself sufficient to show an election by the Dec. Dig. Om 103.]

Agent, Cent. Dig. $8 278-293, 353-359, 367; holder to declare the second note due without further proof of that fact on the trial, 6. PRINCIPAL AND AGENT €w103 — AGENCY —

SALESMAN-AUTHORITY TO EMPLOY. as appellant insists should have been fur Where plaintiff's wife was left in general nished.

charge of his automobile agency and she employSince the judgment against Stewart is to such being customary in the business, or neces

ed one to act as a demonstrator and salesman, be reversed, and as he has undoubtedly en- sary to carry it on, a sale by the employé was tered his appearance for another trial, oth-binding on plaintiff, since, under such circumer assignments of error questioning the suf- stances, the wife had implied authority to so em

ploy. ficiency of service of citation upon Stewart

[Ed. Note. For other

cases, see Principal and will not be discussed.

Agent, Cent. Dig. 88 278-293, 353-359, 367; For the error indicated, the judgment Dec. Dig. Om 103.]

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7. PRINCIPAL AND AGENT 145-EXPRESS OR custom or otherwise, defendant was bound at his

IMPLIED AUTHORITY THIRD PERSON - peril to ascertain the agent's true authority. KNOWLEDGE OF AUTHORITY-IMMATERIALITY.

[Ed. Note.-For other cases, see

Principal and Where the act by which it is sought to bind Agent, Cent. Dig. 88 567-569; Dec. Dig. Om the principal was within the authority actually 152.] conferred by the principal either expressly or 14. PRINCIPAL AND AGENT Cw40 – DEMONby implication, one contracting with the agent need not show that he had knowledge of such

STRATOR-AUTHORITY TO SELL REVOCATION

-SUFFICIENCY OF EVIDENCE. authority and acted on the faith of it, since under either form of authority the act of the agent recover the value of a car procured by defendant

In an action by an automobile dealer to is that of the principal.

through barter with plaintiff's sales agent, evi[Ed. Note.-For other cases, see Principal and dence held insufficient to show a revocation of Agent, Cent. Dig. $$ 499, 513-520; Dec. Dig. the agent's authority prior to such sale. Ou145.]

[Ed. Note. For other cases, see Principal and 8. PRINCIPAL AND AGENT 137—UNAUTHOR- Agent, Cent. Dig. 8 63; Dec. Dig. Om40.)

IZED ACT OF AGENT-ESTOPPEL—How CRE-
ATED.

Appeal from District Court, Childress Liability on the principal's part for the un- County; J. A. Nabors, Judge. authorized acts of his agent rests upon estoppel Action by M, A. Holmes against W. C. arising from words or conduct of the principal

Tyner. From a judgment for defendant, indicating the existence of authority in the agent to do the thing in question upon which plaintiff appeals. Reversed. there is a reliance in good faith.

Fires & Diggs, of Childress, for appellant. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. 88 492-494 ; Dec. Dig. em Jos. H. Aynesworth, of Childress, for ap137.]

pellee. 9. PRINCIPAL AND AGENT Omw 103 SALES AGENCY-BARTER EXCLUDED.

HUFF, C. J. [1] The appellant, Holmes, In general, the power of the agent to sell instituted this suit for the conversion of an does not include the power to barter.

automobile of the alleged value of $2,050, by [Ed. Note. For other cases, see Principal and appellee, Tyner, alleging the title in himself. Agent, Cent. Dig. $$ 278-293, 353-359, 307; Dec. Dig. Om 103.]

The appellee, Tyner, answered, admitting the

possession and alleged he purchased same 10. PRINCIPAL AND AGENT Cw100 APPAR- through appellant's agent; that one HawENT AUTHORITY-DETERMINABLE-EFFECT.

In determining the question of apparent au- kins was the agent of appellant and brought thority, the character of the service, together the machine to Childress and exposed it to with the usual practice of agents in such employ-sale and claimed to be the agent of appelment, may be looked to, and the agent is held to have implied authority to do all those acts lant, who it is alleged held Hawkins out as which are naturally and ordinarily done and such and that appellee was informed by reasonably necessary in such cases.

Hawkins and others that he was the agent [Ed. Note. For other cases, see Principal and of appellant; that Hawkins offered to sell Agent, Cent. Dig. $$ 262,273, 345, 364, 368-373; the car and distributed literature of appelDec. Dig. Om 100.]

lant and had possession of the car for the 11. CUSTOMS AND USAGES 4

- SCOPE OF purpose of selling and demonstrating the AGENT'S AUTHORITY-DURATION OF CUSTOM.

A custom or usage to enlarge an agent's ex: car to prospective purchasers, and did show press authority must be shown by clear and sat-to appellant and others the car and held isfactory evidence, and must have existed long himself out as agent of appellant with powenough to make it widely and generally known, er to sell, and solicited the sales of other and such as will warrant the presumption that the principal had it in view at the time of ap- that, after full notice of the acts of Hawkins,

the and ; pointing the agent.

[Ed. Note.-For other cases, see Customs and appellant paid divers and sundry costs and Usages, Cent. Dig. $ 3; Dec. Dig. Omw 4.] expense bills for him, and ratified and con12. PRINCIPAL AND AGENT 123-AUTOMO-firmed the acts of Hawkins, and directed

BILE DEMONSTRATOR POWER TO BARTER Hawkins to proceed with the sale and to adEVIDENCE-SUFFICIENCY.

vertise and demonstrate the merits of the In an action by an automobile dealer to car and to seek and sell prospective pur

a , bartered by his sales agent in excess of author- chasers for the car, and that thereby appelity, evidence held insufficient to establish author-lant was estopped to deny the right and auity in the agent to barter under his express authority of Hawkins to make the sale; that thority or that implied by custom.

all of said acts of Hawkins were within the [Ed. Note.-For other cases, see Principal and apparent scope of his authority, “and was Agent, Cent. Dig. SS 420-429; Dec. Dig. Om 123.)

within the ordinary and customary author13. PRINCIPAL AND AGENT Cm152 – UNAU-lity of one so using, demonstrating, and offer

ing for sale cars when they are permitted to THORIZED ACT-AUTOMOBILE-BARTER-EFFECT.

handle, demonstrate, and use cars, and that Where defendant procured an automobile by plaintiff well knew such to be the usual, orbarter from one holding himself out as a sales dinary, and customary object of one out so agent for plaintiff, an automobile dealer, but demonstrating, and, if the plaintiff did not who had no authority to barter, defendant was liable as for a conversion, since, in the absence in fact give and authorize the said Hawkins of authority in the agent to barter implied by full power to make the sale in question that Tex.)

HOLMES y. TYNER

889

said plaintiff was negligent in permitting the facts in this case show that Hawkins at said Hawkins to make such use of the car some time thereafter went to Childress with and is now estopped to say that Hawkins the car in issue, and showed and tried to sell had no such authority"; that appellant, re- it, and represented that he had authority to lying upon the acts and conduct of Hawkins, do so. Mr. Knight, who it appears was the and the permission of Hawkins by appellant local agent for the Jackson car at Childress, to so act, which was known to appellant, or by virtue of a contract entered into with apby the exercise of ordinary care could have pellant at some time before the sale, went been known to him, induced appellee to pur- with Hawkins to visit the appellee. On this chase the car and pay full value to Haw-trip Hawkins showed the car to appellee and kins, to wit, $950 cash and one E. M. F. car, the manner of its working and at this time as the consideration therefor, and thereby gave appellee some literature with reference appellant was estopped to deny the agency. to the Jackson make of cars. T. F. Abbott,

Appellant, by supplemental petition, de- who during this transaction was employed as nied specifically all the allegations in the an- an agent for appellant in the sale of these swer, and denied that appellee got possession cars, testified that at that time he resided in of the car from an agent of appellant, or Ft. Worth and in the absence of both appelthat he purchased the same from such agent, lant and his wife managed the office at Ft. but that in acquiring possession thereof he Worth. This witness says, about five days bedid so by barter and trade with Hawkins fore Hawkins left with the car on April 20th, and never paid the value of the car in cash he (witness) returned from a trip and found to any person. It is admitted therein that Hawkins in the office and was introduced to Hawkins was in possession of the car, but him by Mrs. Holmes. This witness states was so unlawfully, etc. The fact of Haw that when he left to go to Clarendon (from the kins' possession and the manner by which he trip thereto, from which he had just reobtained and held it was specifically alleged, turned when he first met Hawkins) appellant showing a wrongful possession. The facts was not at the office and was out somewhere, hereinafter set out will indicate the specif- and when he returned appellant was still out ic facts relied on as showing an unlawful of the office, but during the time had been possession as relied on and set out in the back and had gone away. At the time the supplemental petition.

witness got back Mrs. Holmes was in charge A verdict was rendered for the appellee, of the office. The witness testified Mrs. upon which judgment was entered. The ap- Holmes introduced him to Hawkins and he pellant requested the court to instruct a thinks Mrs. Holmes then said, “or something verdict for him, and also, in his motion for to the effect she had a salesman there. I do new trial, requested that the verdict of the not remember her exact words, but that is jury be set aside for the reason that there nearly as I can remember them. We did not was no evidence supporting the verdict, be- talk but little.” Hawkins appears to be the cause: (a) It is admitted in the pleadings person there referred to. At the direction of that appellant was the owner of the car, and Mrs. Holmes, Hawkins took the witness home the evidence did not warrant the jury to find from the office in a car. After this first conHawkins was his agent to sell and use the versation with Mrs. Holmes with reference car in Childress county; (b) if he was the to Hawkins, witness asked Mrs. Holmes if agent to sell, he was not authorized to ac- she knew anything about him. cept in part payment trade as alleged by ap- "She said she had 'phoned to the manager of pellee; (c) if prior to the sale he was the the Carter car, Mr. Mathews, and that

he said he

was a good man but would steal anything he got agent, such agency was revoked before the his hands on. Mathews claimed the fellow had trade to appellee, and the agency was not sold one of the tires off of a car and had put on at any time known to appellee; (d) that ap- an old one in its place, and I said, 'No business pellee by his own evidence shows that he man in town would keep a man on that recom

mendation,' and I think she replied she would dealt with Hawkins as the owner and not as keep him and try him, or that was the meaning an agent.

of it." In stating our conclusions of the facts we The witness also testified the only car othshall state them from appellee's standpoint. er than the one in issue, that he knew of Appellant, Holmes, at the time of the transac- Hawkins taking out, was one on the evening tion, had the state agency for the Jackson he (witness) returned. He took out a gray cars, situated in Ft. Worth. The car in ques. Roadster and took some one in it to show it. tion was one of that make. The cars, when The witness testified that Holmes himself delivered to appellant, were paid for by him turned the car over to Hawkins, who left and he employed agents thereafter to resell with it for some point up the Denver, and them. About the 20th day of April, 1913, witness' understanding was that he was appellant turned the car over to J. A. Haw- to work some territory up there. He testikins, as he testifies, to go up the Denver road tied that he thinks Hawkins first stopped at as far as Alvord or Decator, and to bring Alvord, and that he knew he stopped at to Ft. Worth some prospective purchasers, Wichita Falls from the fact that the office which Hawkins claimed to have, and to show got hotel bills from there. The bill was

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