during the December term, nor was notice of | peal so as to give this court jurisdiction, and appeal given during said term, as provided therefore appellees' motion to dismiss is in article 2084, Vernon's Sayles' Texas Civil granted. Statutes, nor was an appeal bond filed within the 20 days after the expiration of the term, as provided by law, in order to give this court jurisdiction. Appeal dismissed. ARANSAS HARBOR TERMINAL RY. v. SIMS. (No. 5507.)* (Court of Civil Appeals of Texas. San Antonio. Oct. 20, 1915. Rehearing Denied Nov. 17, 1915.) GERS-ALIGHTING-CONTRIBUTORY NEGLI GENCE. Where a passenger, with weak eyes, wearing glasses, and weighing 246 pounds, in attempting to alight in the daytime from a railroad train by taking hold of the handrail with distance to the ground being about three feet both hands, stepped off and was injured, the and there being no footstool, such action did not constitute contributory negligence as a matter of law. Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; 352-ACTION FOR INJURIES-SUBMISSION OF ISSUES-FORM OF INTERROGATORIES. injuries to a passenger in stepping from a train, In an action against a railroad company for the submission of the issue whether defendant was negligent, as negligence of a carrier of passengers was defined in an instruction given, was not reversible error on account of the form of the question as failing to limit the jury to the consideration of the facts raised by the pleadings; the court having informed the jury that the case would be submitted on the issues raised thereby. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 840-842, 844, 845; Dec. Dig. 352.] Appellees cite in support of their contention the case of Wells Fargo & Co. Express v. Mitchell, which case is reported on the original hearing on motion to dismiss appeal in 165 S. W. 139. On this hearing the Court 1. CARRIERS 347-CARRIAGE OF PASSENof Civil Appeals for the Seventh District overruled the motion to dismiss, but it appears from the motion of appellees and the written agreements of both appellees and appellant that, on motion for rehearing, the Amarillo court granted appellees' motion for rehearing, and dismissed the appeal. While neither appellees nor appellant cites us to the report containing the opinion of the court on this last-mentioned action, yet there appears attached to appellees' argument, in support of their motion to dismiss the appeal in this case, what purports to be a copy of the opinion of the Amarillo court on motion for rehearing, which we presume to be correct. Appellant concedes that the Wells Fargo Case is authority in support of appellees' motion, but urges that the majority of the court for the Seventh district, Chief Justice Huff dissenting, are in error in holding that the case of Hughes v. Doyle, 91 Tex. 421, 44 S. W. 65, and other cases cited on the motion for rehearing, support the conclusions reached. But, irrespective of the question discussed and the conclusions reached by the Amarillo court in the case cited, as to the authority of the commissioners' court to prescribe the number of terms of the county court which may be held in any year and the time when such terms shall begin and end, we are confronted with the statement in the caption of the transcript that the term of the county court of Cooke county in which this judgment was rendered was "a term of the county court begun and holden at Gainesville, Tex., and for the county of Cooke, before Hon. R. V. Bell, judge of said court, on the 7th day of December, A. D. 1914, and ending on the 31st day of December, A. D. 1914." Thus it will be seen that, irrespective of the question as to whether or not the December term of the county court might have been legally caused to continue over and beyond January 4, 1915, the only evidence before us is that said December term of the court ended December 31, 1914, and that no notice of appeal was given by appellant prior to said last day of the term, and no appeal bond appears in the record as having been filed within 20 days after the expiration of the December term, or at any other time. Under such a state of the record, we hold that the appellant has not perfected his ap Appeal from District Court, San Patricio Denman, Franklin & McGown, of San Antonio, for appellant. Jas. G. Cook and M. C. Nelson, both of Sinton, for appellee. MOURSUND, J. This is an appeal from a judgment for $1,000, recovered by Miss Exer Sims against the Aransas Harbor Terminal Company on account of injuries sustained by her in alighting from a train, which injuries she alleged were caused by the negligence of said terminal company in failing to provide and maintain a safe way of departing from its cars, in failing to provide reasonably safe appliances to enable her to alight from the car, and in failing to provide assistance to her in alighting from the car. Defendant denied the allegations of the petition, and pleaded that plaintiff was guilty of contributory negligence which proximately caused her injuries. [1] Appellant contends that the undisputed evidence shows that appellee was guilty of contributory negligence which directly and proximately caused her injuries. Appellee For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was a passenger on appellant's train, which arrived at Aransas Pass in the daytime. All of the passengers got off, appellee being the last one to leave the car. In alighting, she took hold of the rod with both hands and stepped off. The distance was about three feet. She weighed 246 pounds. Her eyes were weak, and she wore glasses. She did not realize that the distance from the step to the ground was so great. She had on threebutton Oxford shoes, and when she placed her foot on the ground and rested her weight on it, her ankle turned and was badly sprained. She was reasonably active, considering her weight, and had not theretofore fallen on account of her ankle giving way. Appellant failed to furnish any stool or to assist the passengers in any way in alighting from This evidence does not conclusivély show that plaintiff acted otherwise than an ordinarily prudent person would have acted under similar circumstances, and it cannot be held that she was guilty of contributory negligence as a matter of law. M. P. Ry. v. Watson, 72 Tex. 631, 10 S. W. 731; G., C. & S. F. Ry. v. Vinson, 24 S. W. 956; T. & P. Ry. v. McLane, 32 S. W. 776; Weatherford, M. W. & N. W. Ry. v. White, 55 Tex. Civ. App. 32, 118 S. W. 799. [2] The court, after defining the term, "negligence," when applied to carriers of passengers, submitted the issue as follows: "Was the defendant, Aransas Harbor Terminal Railway, negligent, as negligence of a carrier of passengers is above defined?" Defendant, at the proper time, filed the following objections to such question: of the amendment to article 1971, Revised Statutes 1911 (Acts 33d Leg. c. 59, § 3 [Vernon's Sayles' Ann. Civ. St. 1914, art. 1971]), requiring all objections to the charge to be made before it is given. See Dallas Con. Elec. Ry. Co. v. Motwiller, 101 Tex. 521, 109 S. W. 918; S. A. & A. P. Ry. v. Long, 19 Tex. Civ. App. 649, 48 S. W. 599. The reasons for not reversing a case on account of omissions were much more cogent when the court was not apprised of such omissions until after the verdict was returned, but as the amendment made no change in the rules to be applied with reference to omissions, it seems it is necessary, in order to be in a position to complain of an omission, that the party should present and request the giving of a charge covering the matter omitted. Selden Brick Construction Co. v. Kelley, 168 S. W. 985. But in this case, even if that rule should not be applied, no reversal should take place on account of the form of the question. The court, in its charge, informed the jury that the case would be submitted upon special issues raised "by the pleadings and the evidence," and the form of the question as submitted was not calculated to cause the jury to base its verdict upon matters proved but not alleged. Besides the statement of facts does not disclose any evidence of acts of omission or commission on the part of defendant causing injury to plaintiff other than those pleaded, so defendant could not have been harmed by the manner in which the issue was submitted. Dallas Con. Elec. St. Ry. Co. v. Motwiller, su pra. "(a) The court does not state therein the Appellant, by its third assignment of eracts of negligence charged in plaintiff's petition, but leaves it to the jury to determine what acts ror, attacks the definition of negligence givof negligence are charged in said petition; (b) en by the court. The definition was correct. because said petition charges several alleged acts H. & T. C. Ry. Co. v. Dotson, 15 Tex. Civ. as constituting a breach of defendant's duty, and avers what plaintiff erroneously construes App. 73, 38 S. W. 642; M., K. & T. Ry. Co. to be defendant's duty, and the submission of v. Kemp, 173 S. W. 535; St. Louis, A. & T. the issue as framed by the court leaves it to Ry. Co. v. Finley, 79 Tex. 85, 15 S. W. 267; the jury, not to find as to the alleged acts of I. & G. N. Ry. Co. v. Welsh, 86 Tex. 203, 24 omission or commission by defendant charged as breaches of duty by defendant, but to determine whether defendant has been negligent, thus leaving to the jury the decision of a legal question and the determination of the construction of plaintiff in her petition as to what are defendant's duties, and whether same have been so breached as to constitute negligence." These objections were overruled, and error is assigned to the action of the court in submitting such issue. The charge should be so drawn as to direct the jury to the consideration of the specific acts of negligence alleged in the petition. Appellee contends that the question submitted was correct as far as it went, and was not an affirmative misdirection of the jury, but an omission of which advantage could not be taken without requesting the submission of an issue which would supply the omission, or requesting an instruction limiting the jury, in deciding the issue, to the acts alleged to have caused the injury. This contention is sustained by cases decided prior to the passage S. W. 391, 40 Am. St. Rep. 829. The matter of the failure to draw the issues so as to require a finding in answer to inquiry concerning the acts of negligence pleaded is again complained of under this assignment, but, having been fully discussed in disposing of the preceding assignment, it is unnecessary to say anything further concerning the same. By the last assignment appellant attacks the sufficiency of the evidence to sustain the finding that appellee was not guilty of contributory negligence. We have already held that the evidence did not show contributory negligence as a matter of law, and this assignment, as we construe it, raises the same issue; but, if intended as a contention that the great preponderance of the evidence shows contributory negligence, and that the judgment is therefore manifestly unjust, the same must be overruled, for we consider the evidence to be of such character as to war rant the jury in finding that appellee was not held to make defendant's agreement to pay guilty of contributory negligence. The judgment is affirmed. therefor a question for the jury. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. 53.] 7. TRIAL 251-INSTRUCTIONS-PLEADING. In such action, where the plaintiff did not plead any estoppel or waiver as against the SCRUGGS v. E. L. WOODLEY LUMBER CO. defendant, an instruction that if defendant (No. 828.) The fact that a special exception in plaintiff's supplemental petition was not in due order of pleading was no cause for reversal, where no exception to the supplemental petition was taken in the court below, on the ground that it was not in due order of pleading. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. 194.] 2. PAYMENT 9-INCUMBERED PROPERTYLEGAL TENDER. waived the size of the house, or knew the size of the house actually built, plaintiff could recover, and that defendant would be estopped to claim that the lumber was furnished for a house ment, should not have been given. of that size for which there had been no agree [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. 251.1 Appeal from Wheeler County Court; M. M. Miller, Judge. Action by the E. L. Woodley Lumber Company against W. C. Scruggs. Judgment for plaintiff, and defendant appeals. Reversed and remanded. H. B. Hill, of Shamrock, and C. E. Gustav A creditor is not required to accept in-us and M. J. R. Jackson, both of Amarillo, for cumbered property in settlement of his account appellant. M. Reynolds and C. E. McVey, and to assume the incumbrance, but need accept nothing but a legal tender. both of Shamrock, for appellee. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 38, 40, 41, 49, 53; Dec. Dig. 9.] HUFF, C. J. This was a suit to recover the balance due appellee for the sum of $391. 3. EVIDENCE 354-BOOKS OF ACCOUNT-43, on a bill of lumber furnished to build a FIRST PERMANENT ENTRY-ORIGINAL EN TRY. In an action for the balance due on a bill of lumber furnished to build a residence on land, the plaintiff's daybook or journal, kept as a book of account in the regular course of business, and the first book in which the items of sale entered by plaintiff's yardmen on slips torn from a pad were first permanently entered, after the preliminary proof, was admissible as a book of original entry. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. 354.] 4. EVIDENCE 354-Books OF ACCOUNTCOLLATERAL FACTS. Under the rule as to the admission of books of original entry containing items of account, books not containing charges made in the regular course of business are inadmissible to prove the collateral matters shown therein, which matters must be shown by independent testi mony. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. 354.] 5. EVIDENCE 354-BOOKS OF ACCOUNTALTERATION. In an action for the balance due on a bill of lumber furnished to build a residence upon land, legal title to which was in defendant, who had contracted to convey it to one S. on payment of a certain sum, an account book, showing charges against J. F. or J. F. S., was not inadmissible because plaintiff's manager wrote after S.'s name the word "residence," where it appeared that S. was procuring material about the same time, and where there was no indica tion of fraudulent intent. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. 354.] 6. SALES 53-ACTION FOR PRICE-QUES TION FOR JURY. residence upon land, the legal title to which was in appellant, but who had contracted with one Smith to deed the land to him upon the payment of certain sums of money. It is alleged, in effect, that appellant made the order for the lumber and, upon a sufficient consideration, agreed to pay the bill upon the contract so entered into with appellant. erected the house upon the land, to which Appellee delivered the lumber to Smith, who appellant had the legal title. There was a verdict and judgment in favor of appellee for the amount sued for. The first assignment will be overruled. The facts are sufficient to raise the question of an agreement; that is, that the minds of the parties met. [1, 2] The second assignment will be overruled. The fact that special exception No. 6 in appellee's supplemental petition was not in due order of pleading is no cause for reversal on the ground that the court sustained the exception to paragraph 6 of appellant's answer. This was a formal matter, and an exception should have been presented in the court below to the exception contained in the supplemental petition on the ground that it was not in due order of pleading. The exception will not be entertained in this court, I where it is made for the first time. think the court properly sustained the exception. We know of no rule of law or equity that will require a creditor to accept in settlement of his account property incumbered by indebtedness and to assume such indebtedness. The appellee was not required in law to accept anything but a legal tender. We In an action for the balance due on a bill of lumber furnished to build a residence upon land, the legal title to which was in defendant, but which he had contracted to convey to one S. on payment of a certain amount, evidence. [3] Under the third assignment it is urged For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the shopbooks of appellee should not In the case cited Judge Ramsey, who renderhave been admitted in evidence. The bill ed the opinion of the court, cited the Johntaken by appellant urges that this book was son Case, evidencing thereby the shop rule not the book of original entry. It appears would not be extended to registers of railto have been the daybook or journal. The roads as to the movement of its trains. In testimony to which appellant refers as show- the case of Guthrie v. Mann, 35 S. W. 710, ing the book not to be one of original entry cited by appellant, the court simply held the is to the effect that appellee was a lumber books were not competent to prove a receipt, company and dealer in lumber. In making but the receipt itself should be proven. Pohl sales the yardmen noted on a tablet or pad v. Bradford, 25 S. W. 984, held, as it is unithe sales made, to whom made, and the ar-versally held, under the shopbook rule, that ticles sold. This pad or slip was turned in the ledger is not admissible where it is shown to the bookkeeper, who entered the items to have been made up from the daybook or from this slip of paper which had been torn journal. In Baldridge v. Penland, 68 Tex. out of a pad by the yardman making the sale 441, 4 S. W. 565, it is held the books of origor delivering the article. Both the manager inal entry should be produced or accounted and bookkeeper testified as to the method, for, and that items on the account which do and the bookkeeper who made the entries not appear to be such as were usually dealt testified as to the correctness of the books, in by the business could not be proven by the and that he made the entires in the daybooks books. or journal. This book is shown by the testimony to be the first book of permanent entry. The objection here urged is that: "The tickets were the matters of original entry and were the basis of the charges in such book, and that the tickets were the first and original entry." It will be observed that there was no exception that the book kept, and the entries made were not entered in due course of business, and not correctly kept or proven up by the proper parties making them; the only objection being that the book was not the book of original entry. We shall, for the purpose of this opinion, presume all the necessary preliminary proof was made, and consider the sole question as to whether this was sider the sole question as to whether this was the book of original entry within the mean ing of the rule. In Railway Co. v. Johnson, 7 S. W. 838, the Supreme Court, speaking through Judge Gaines, said: [4] Books are not admissible under this rule, unless they are used in the regular course of business and kept by the parties as books of account. Hence books for some purpose other than that of making charges in the course of business do not fall under the rule If other facts, not such as are handled in the regular course * * "It seems, however, pretty well established that the first permanent records of the transactions by the creditor are to be deemed original entries, if made within a short time after the transactions themselves, although the items may tries in the book of account be made in the reg"In addition to the requirement that the enhave been previously entered, as a temporary ular course of business, it is equally essential assistance to the memory, upon some slate, book, paper, or other substance not intended to that they constitute the party's original entries be preserved. In an old case this court admit- or the first permanent records of the transacted the rule generally recognized in the courts evidence. Thus, if the entries are made in a tion in question, in order to be admissible in of this country, but strongly animadverted upon it as a dangerous innovation of the principles of daybook or journal and transferred thence to a the common law, and refused to extend it, in ledger, the entries in the ledger are not comcases of merchant's account, beyond such arti- petent,, but it is no objection to the book, if cles as are usually sold by a merchant in course otherwise regular, that the entries which they contain were first made temporarily. * of his business. Cole v. Dial, 8 Tex. 347. It is The former strict idea of what constituted origusually confined to accounts for labor perform-inal entries has been modified to fit the necessied, or to goods sold by regular dealers in mer- ties of new business conditions. Inasmuch as chandise." under the modern methods of extensive business houses the information relative to the transactions constituting the transactions constituting the accounts must pass through various hands before being permanently recorded, some system of temporary memoranda preparatory to the permanent records is necessary to insure convenience as well as accuracy. It would be impracticable to preserve, for any length of time, the tags, slips, or tokens constituting such original memoranda, and impossible, in view of the changing of employés, to obtain the testimony of the persons who made the temporary memoranda or conducted the transaction. Hence, following the rule of necessity, the courts do not regard such temporary memoranda as the originals, but look to In the case then under consideration, the court refused to extend the rule to transactions between shippers of grain and the railroad. The appellant cites the case of Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103. In that case the register of the railway company showed the time trains pass the yards. This register was made up from slips or cards prepared and furnished the keeper of the register by the employés operating the trains. It was held these slips or cards were original evidence. the permanent records as such original entries | given. We doubt the sufficiency of the teswhen properly verified by a suppletory oath." timony to sustain the question of waiver or estoppel; however, we will not, at this time, hold the court was in error because of the insufficiency of the testimony. It occurs to us the only issue in the case was whether there was entered into the agreement alleged. If there was, appellant was liable; if not, he was not. Under the conflict and the peculiar state of facts in this case, this charge was calculated to divert the attention of the jury from the issue presented by the pleadings. Assignment No. 6 will be sustained, which will require a reversal of this See, also, Elliott on Evidence, vol. 1, §§ 459, 460; Rogers v. O'Barr et al., 81 S. W. 750; Barclay v. Deyerle, 53 Tex. Civ. App. 236, 116 S. W., on page 125. The books in this case clearly fall under the shopbook rule, and we think it is sufficient to show that the daybook or journal is the first permanent book of entry, and that, if the other necessary requirements are shown, is admissible, and that the slips of paper, used as memoranda, are not, under this rule, the original entry, such as will require their production. This assignment will be overruled. [5] The fourth assignment urges the trial court should have excluded the books because it was shown that they had been altered. The account appears to be in the name of J. F. or J. Frank Smith, Residence. The manager says after the bookkeeper made the entries that he, the manager, wrote after Smith's name, "residence." We find nothing in the fact that the word "residence" was written in the account to indicate a fraudulent appearance. It appears Smith was procuring material about the same time for a church that he was procuring material for the house. We think the explanation was sufficient, and if it satisfied the trial court as to the appearance of the books, we think there would be no error shown requiring a reversal of the case. Jones on Evidence, vol. 3, § 576. The fifth, seventh, and eighth assignments are overruled for the reasons given under the first assignment. case. Reversed and remanded. KING et ux. v. COLLINS. (No. 472.) (Court of Civil Appeals of Texas. El Paso. Oct. 28, 1915. Rehearing Denied Nov. 18, 1915.) 1. CONTRACTS 332-ACTIONS-PETITIONSUFFICIENCY TO SUPPORT VERDICT. with defendant to install the plumbing and heatA petition alleged that plaintiff contracted ing in a building, that the contract provided for payment upon architects' estimates as the work progressed, that payment of an estimate was retract, but that he afterwards finished the work fused, whereupon plaintiff abandoned the conby special agreement with defendant, that there was due and owing him for work performed and material furnished $1,200, after deducting $1,300 theretofore paid, and after deducting from the contract price of $2,700, the reasonable cost and expense of installing the heating and plumbing, which sum of $1,200 was the fair and reasonable value over and above the amount paid for the work and material of which defendant had availed himself, and which he had used, kept, and retained. Held that, in the absence of an exception, the petition was either upon quantum meruit or for the balance of the contract price, as the amount due could be definitely ascertained in view of the allegation that the work was to be paid for upon estimates as the work progressed. [6] The evidence presents a conflict as to whether appellant and appellee reached an agreement. If appellee's witnesses are to be believed, appellant agreed to pay and order-sufficient to authorize a charge and a verdict ed the lumber to build the house. He did so for his own interest and financial benefit, and the inference may be drawn therefrom that he left the size the house should be to the determination of Smith. Appellant owned the land on which the house was being erected, that is, he had the legal title thereto and had contracted with Smith to deed him the property if Smith paid for it, and the testimony indicates Smith had practically defaulted before the lumber was delivered. The circumstances, we think, in this case, are sufficient to raise the issue presented by the trial court for the jury's finding. [7] We believe the court, however, was in error in giving appellee's specially requested charge No. 3, which substantially instructed the jury that if appellant waived the size of the house, or, knowing it, that is, the size of the house actually built, that appellee could recover, or that appellant would be estopped to claim the lumber was furnished for a house of that size, for which there had been no agreement. There was no estoppel or waiver pleaded by appellee. Under the pleadings this charge should not have been [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. 332.] 2. APPEAL AND ERROR 1066 HARMLESS ERROR-ERRORS NOT AFFECTING RESULT. A judgment would not be reversed on the ground that the petition stated a cause of action ed a recovery of the balance due under a conon a quantum meruit, and the charge authoriztract, where there was no question as to the reasonable value of the work done and material furnished, and there could therefore have been no other verdict rendered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. 1066.] 3. MECHANICS' LIENS 93—PERSONS ENTI TLED-STATUTORY PROVISIONS. Under Rev. St. 1911, art. 5621, providing that any person or firm, etc., who may labor or furnish material, etc., to erect any house or improvement, shall have a lien on such house, building, etc., and all its properties, and on the lots of land necessarily connected therewith, where a contract for the installation of the heatpayments from time to time as the work proing and plumbing in a building provided for gressed upon the architects' estimates, and the owner refused to make a payment on an es For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |