judgment in favor of August A. Busch & Co. against J. W. McGough mentioned above was duly filed for record in the office of the county clerk of Jones county. | you will not include the claim of J. M. McGough against J. W. McGough. And you are instructed, further, that if you find from the evidence that in incorporating the Hamlin Transfer Company it was understood that J. W. McGough was to put in said transfer company the title to said lots 4 and 5 at a valuation of $5,000, and that $5,000 worth of stock of the said Hamlin Transby reason thereof J. W. McGough was to receive fer Company, then the court charges you as a matter of law that title to said lots did not reach the Hamlin Transfer Company, and thereby, if such were the facts, J. W. McGough on said date would be indebted to the Hamlin Transfer Company in the sum of $5,000 unpaid subscription on his stock in said transfer company, and if the facts so be, in finding the you will include herein the said sum of $5,000. amount of the indebtedness of J. W. McGough, "Answer. Six thousand five hundred nine and the reasonable cash market value of the property "Fifth Issue. On December 2, 1910, what was belonging to the Hamlin Transfer Company? In this connection you are instructed that said lots Nos. 4 and 5 were not the property of the Hamlin Transfer Company, and in determining this question you will not include the value of said lots Nos. 4 and 5. But you are further instructed that lot No. 6 referred to in the evidence was the property of the Hamlin Transfer Company, and in answering this you will include the value of said lot No. 6. On September 30, 1912, J. M. McGough filed in the district court of Jones county a petition for the issuance of a writ of injunction to restrain the sheriff and constable of that county from selling lots 4 and 5 under execution, which, according to the allegations in the petition, had been duly issued on the judgment in favor of Busch & Co. against J. W. McGough and had been levied upon said lots 4 and 5. In that petition plaintiff further alleged that on the 2d day of December, 1910, the date of the deed from J. W. McGough to J. M. McGough, the said J. W. Mc-91/100 dollars. Gough was seised and possessed of said lots in fee-simple title; that at that time J. W. McGough resided in Hamlin, was the head of a family, and owned and claimed said lots as his business homestead; that he was then engaged in the livery business for hire as a means of livelihood, and controlled and managed the same; that said lots 4 and 5 were then exempt to him as a business homestead under the Constitution and laws of the state of Texas. The petition further alleged the filing of other abstracts of said judgment in Jones county, all of which cast a cloud upon the title of J. M. McGough, who had purchased the property on December 2, 1910, from J. W. McGough for the purpose of sale and exchange, paying a valuable consideraand exchange, paying a valuable consideration therefor. The petition was signed and sworn to by J. M. McGough; the affidavit signed by him containing the statement that the matters set forth in the petition were There was issued to J. W. McGough $5,000 worth of the stock in the Hamlin Transfer Company, but he has never paid any consideration therefor, unless the company acquired title to lots 4 and 5 in the town of Hamlin under and by virtue of the statements contained in the charter, and in the affidavit attached thereto, all over the signature of J. W. McGough. true. The trial was before a jury, to whom was submitted special issues. The findings of the jury were as follows: (1) Just prior to the execution of the two deeds from J. W. McGough to J. M. McGough of date December 2, 1910, one conveying the survey of land in controversy in this suit, and the other conveying lots 4 and 5 in the town of Hamlin, J. W. McGough was indebted to J. M. McGough in the sum of $800. (2) On December 2, 1910, the reasonable cash market value of said lots 4 and 5 was $2,000. (3) On December 2, 1910, when J. W. McGough executed to J. M. McGough the deed to the section of land of 640 acres in controversy, the reasonable cash market value of that property was $20 per acre. The remaining issues submitted to the jury, together with the findings thereon, are as follows: "Fourth Issue. On December 2, 1910, what was the indebtedness of J. W. McGough? In this connection you are instructed that in the amount you may find in answering this question "Answer. Three thousand dollars. "Sixth Issue. Our statute, in effect, provides that every gift, or conveyance, of property given or made with intent to delay, hinder, or defraud creditors shall be void. In this connection I charge you that the judgment in favor of August A. Busch & Co. was a valid claim and judgment against J. W. McGough, and that the transfer by J. W. McGough of the property belonging to him and subject to execution would delay and hinder said Busch & Co. in the collection of their said judgment, yet such conveyance would not be fraudulent unless in making such tent to delay, hinder, or defraud his creditor or conveyance said J. W. McGough did so with increditors, nor can you find such conveyance fraudulent unless you find from the evidence the existence of the following conditions, to wit: That in conveying said section of land in Stonewall county to J. M. McGough, J. W. McGough did so with intent to delay, hinder, or defraud his creditors, or to defraud said Busch & Co., and that J. M. McGough at the time of the conMcGough, had notice of such intent on the part veyance of said section to him by the said J. W. of J. W. McGough, if such was his intent, or that J. M. McGough had knowledge of the facts and circumstances such as would have put an ordinarily prudent man upon inquiry, which, by the use of proper diligence on his part would have led to the knowledge of such intention on the part of J. W. McGough, if such was his intention. Now, bearing in mind the above essential conditions, you will answer by yes or no, as you may find from the evidence, the sixth special issue following: Was the conveyance of the section of land in Stonewall county by J. W. McGough to J. M. McGough a fraudulent conveyance? "Answer. Yes. [1, 2] By different assignments of error the contention is made that the court erred in peremptorily instructing the jury that the title to lots 4 and 5 never passed from J. W. McGough to the Hamlin Transfer Company, and that McGough was still indebted to that company in the amount of his subscrip tion for stock. The contention is based upon the proposition that title to lots 4 and 5 necessarily passed by reason of the fact that J. W. McGough, at the time of the incorporation of the Hamlin Transfer Company, intended no longer to occupy lots 4 and 5 as the place for continuing the livery business for his individual benefit, or for the benefit of the partnership firm of J. W. McGough & Sons; that he contracted to convey the property to the corporation, and after its incorporation he accepted stock from the corporation in the sum of $5,000; that the corporation thereafter took charge of the said lots, occupying and using the same in its business, with said J. W. McGough acting as its president. Appellant insists that, at all events, the issue whether or not title passed to the Hamlin Transfer Company should have been submitted to the jury as a controverted issue, and should not have been determined by the court, as was done. The evidence does not show, neither is it contended by appellant, that any improvements were ever placed upon the property by the Hamlin Transfer Company. It is also undisputed that lots 4 and 5, at the time of the incorporation of the Hamlin Transfer Company, were the business homestead of J. W. McGough, and that neither the application for the charter, nor the affidavit attached thereto, was executed by his wife, nor were said lots designated either in the charter or in the affidavit attached thereto. Under such circumstances we fail to understand how it can be said that title to lots 4 and 5 passed from J. W. McGough to the Hamlin Transfer Company, especially in view of the fact that several months after the stock in the Hamlin Transfer Company was isued to J. W. McGough he conveyed lots 4 and 5 to J. M. McGough, appellant herein, who afterwards sought to enjoin the sale thereof upon a petition, verified by him, alleging facts squarely contrary to the contention now made by him in the present suit, as noted above, and we are of the opinion that the trial court did not err in instructing the jury that title to those lots never passed to the Hamlin Transfer Company. Revised Statutes 1911, arts. 1103, 1115; Altgelt v. Escalera, 51 Tex. Civ. App. 108, 110 S. W. 989, and authorities there cited; 16 Cyc. 685. the finding by the jury, in answer to the sixth special issue, in effect, that the conveyance of the land in controversy by J. W. McGough to J. M. McGough was fraudulent. Appellant insists that the evidence shows without controversy that at the time of the McGough nor J. M. McGough had any notice execution of that conveyance neither J. W. of the judgment in favor of August A. Busch & Co., nor of any other indebtedness then owing by J. W. McGough to any one, aside from his indebtedness to J. M. McGough, to satisfy which the deeds to the land in controversy and to lots 4 and 5 in the town of Hamlin were executed. W. McGough was, in effect, that they knew While the testimony of appellant and J. nothing of any indebtedness then owing by J. W. McGough to any one, except his inthe jury were not bound to accept such testidebtedness to his son, J. M. McGough, yet the jury were not bound to accept such testiNotwithstanding such statemony as true. circumstances tending strongly to rebut it. ments by those two witnesses, there were We shall not undertake to refer to all of such circumstances, but will mention some of them. According to the undisputed evidence J. W. McGough, for a pre-existing debt of $800, owing to his son, J. M. McGough, Conveyed property of the value of $14,800, thus stripping himself of all property subject to execution, except the $5,000 worth of stock held by him in the Hamlin Transfer Company, for which he had never paid that company any consideration. further shows that J. M. McGough, who is a single man, had lived with his father in the town of Hamlin for several years, and had been associated with him in business. abstract of judgment in favor of August A. Busch & Co. was duly filed for record in Jones county, where J. M. and J. W. McGough resided. J. M. McGough testified, in part, as follows: The evidence An "As to the children that J. W. McGough had on the 2d day of December, 1910, will say that he had five children, all married at that time, except me. * * *As to all the conversations that I have had with J. W. McGough concerning 1910, since that time, and as to what has been the deeds that he made to me on December 2, said about property, etc., will say that I could not say what all has been said between J. W. McGough and myself since that time, as we are together most of the time and talk about everything nearly that either one of us is interested in." But he further stated in that connection as follows: "I was figuring on leaving home at the time, and my father did not have the money to settle with me, and he and my mother wanted me to stay with them and told me that they would square up with me, and would give me the land and the lots, if I would stay with them, and help take care of them, and not leave home." Plaintiff also introduced testimony showing the contents of a letter written by J. W. McGough to the tax assessor of Stonewall [3] By another assignment appellant in-county, in which the land in controversy was put the land in controversy on the tax rolls for assessment for the year 1912. Appellant, J. M. McGough, testified that he had never rendered the land for taxes. J. W. McGough admitted on the stand that he was served with citation in the suit of Busch & Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by M. Lamana against Joe Navarro. Judgment for plaintiff, and defendant appeals. Affirmed. Cole & Cole and A. B. Wilson, all of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee. Co., although he further testified that after receiving that citation he talked with G. W. Bills, the principal debtor defendant in that suit, who afterwards informed him that the suit had been settled, and that there never would be any judgment rendered against him, and that he did not know anything to the contrary until he saw Mr. Sawyer (attorney for Busch & Co.) in Hamlin in 1911. In addition to those circumstances, there was the further fact that J. M. McGough, with full knowledge that J. W. McGough never contemplated paying anything for his $5,000 worth of stock in the Hamlin Transfer Company, except said lots 4 and 5, took a deed of conveyance to that property after the issuance of the stock, and asserted title under that deed adversely to the company. Ull-only for settlement the matter of the cash man v. Crenshaw (Sup.) 16 S. W. 1012; Brasher v. Jamison, 75 Tex. 139, 12 S. W. 809. The judgment is affirmed. NAVARRO v. LAMANA. (No. 475.) - 1. PARTNERSHIP 336 - ACCOUNTING COMMINGLED FUNDS-BURDEN OF PROOF. Where the partnership books were shown to have been incorrectly kept, and in such manner that it was impossible to determine the proportion in which partnership and personal funds had been commingled by defendant partner, sued for an accounting by plaintiff partner, it became incumbent upon defendant definitely to show the amount of the credit to which he was entitled as represented by personal funds. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. 336.] 2. EVIDENCE 589-DISREGARD OF PARTY'S TESTIMONY. In an action between partners for an accounting, the court could refuse credence to defendant's statement, totally totally uncorroborated, that he made a disbursement. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. 589.] HIGGINS, J. Navarro and Lamana were partners doing business under the firm name of Star Bottling Works, in which business appellant owned five-eighths interest, and appellee three-eighths interest. Appellee instituted this suit, seeking a dissolution of the partnership and accounting. An auditor was appointed, who made his report to the court. Exceptions to portions thereof were filed by appellant. Pending a hearing on the exceptions, the parties settled by agreement all their partnership affairs as to the assets and physical properties of the business, leaving balance for division between the partners, a few items of which only were in dispute, as raised by appellant's exceptions to the auditor's report. The exceptions were passed upon by the court and judgment rendered in sum of $504.33 against Navarro and in favor of Lamana. In arriving at judgment the court found that appellant owed the partnership firm $779.90, of which he was due the appellee threeeighths as his part, or the sum of $292.44; and, it appearing that appellee had already paid $211.80 as his three-eighths of the fee of the auditor, in the sum of $565, the court also rendered judgment against appellant requiring him to repay appellee the amount so expended by appellee, appellant and appellee having previously paid the auditor under an agreement that it would not prejudice either's rights as to the proper taxation of the costs thereof when it came on for hearing. Navarro was the managing partner, drew all checks, had charge of the cash and bank account, and kept the books of the company, with the assistance of a bookkeeper. According to the auditor's report, there was a difference between the books of the company and the company's bank account of $613.62, 3. PARTNERSHIP 346 - PARTNERSHIP AC- the bank account showing that much over · COUNTING COSTS-STATUTE. Under Rev. St. 1911, art. 2035, providing and above what the books of the company that the successful party to a suit shall recover showed the cash should have been, and there of his adversary all costs, and article 2048, pro- was an additional discrepancy between the viding that the court may for good cause to be receipts of the company as shown by its books stated on the record adjudge the costs other-and wise than as provided in preceding articles, and the bank deposits of $772.29, that amount. partner, defendant in his partner's appearing to have been placed in the bank suit for an accounting, had kept the books of over and above the receipts as shown by the the firm, either fraudulently or negligently, in partnership books. The auditor charged Nasuch manner that the appointment of an auditor was necessary to assist the court in as- varro up with these two items, but of the first certaining the amount of personal funds de- item $291.59 thereof was satisfactorily acfendant had commingled with partnership funds, counted for by Navarro, and the court althe court properly exercised its discretion in lowed him credit therefor. It was also taxing all costs against him. shown to the satisfaction of the court that [Ed. Note. For other cases, see Partnership, Cent. Dig. § 820; Dec. Dig. 346.] the balance of the item mentioned and all received in payment for sales not reflected by the books, defendant should not be charged therewith, since to do so would be to hold him liable for all cash on hand, as well as all receipts on hand as shown by the books; that, if he is to be charged with all "shorts" in the way of unidentified debits of the business, he should be credited with all "overs" in the way of unidentified credits. And it is argued that the item of cash in the drawer occupied precisely the same status as the funds in the bank, and that, if the court allowed credit for the bank overage deposits, in like manner credit should be allowed for the overage in the cash drawer. To all this it may be replied, in the first place, that the books are shown to have been incorrectly kept, and in such a manner that it was impossible to determine therefrom the proportion in which partnership and personal funds had of the $772.29 consisted of an overage in the bank deposits; that is, the bank deposits exceeded by these amounts the actual receipts of the business of the partnership. This overage in bank deposits, it was found by the lower court, arose in this manner: Navarro used the bank account of the partnership for his personal business transactions and for the partnership. He mingled his personal and the partnership monies in the partnership bank account. In so doing he relied upon the company's books to show how much belonged to the partnership and how much belonged to him personally. He was a man of considerable means, aside from his partnership interest. Part of the discrepancies indicated probably occured by the practice of Navarro drawing the company's checks payable to cash with which he would pay his employés, and, when the check was surrendered by the bank, he would frequently been commingled by Navarro. In such case destroy it, being under the erroneous impression that it would not affect the company's accounts, as he had already charged it to pay roll expense. This practice would show a disbursement by a debit against Navarro for the same amount represented by the check drawn on the bank. By this means the books of the company would show a double disbursement, when, in fact, only one had been made. The overage in the bank account was further augmented by the defendant's practice of crediting himself with $12 weekly, according to partnership agreement, and frequently failing to withdraw it from the bank. He proceeded upon the theory that, upon settlement of the company's affairs, he would be responsible for everything its books showed had been received, and the balance left in the bank would be his property. The auditor charged him with all unidentified debits of the company; that is, he was charged with all money that went into and was withdrawn from the bank, whether or not there was anything to show that it was partnership funds, or was spent for its account. There was also on hand in the partnership cash drawer at the time the auditor took charge of the books the sum of $130.75. The court found that the items of $613.62 and $772.29 were overages in the partnership's bank account created in the manner indicated, and allowed defendant credit therefor. It was further found that the item of $130.75 was not an overage, as were the other two items, and defendant was charged therewith. Complaint is here made of the refusal to allow credit for this item. it became incumbent upon him to definitely show the amount of credit to which he was entitled, as represented by personal funds. This he failed to do, and the court might properly have refused to allow him credit for any part of the overages, except above mentioned $291.59, which it was shown consisted of four checks drawn, but which had not been cashed by payees upon the audit date. He has no just ground of complaint because the court did not extend its indulgence to cover the item in the cash drawer as well as the bank deposit overages. [2] Error is also assigned to the refusal to allow a credit of $75 claimed by defendant to have been paid to certain parties as a bonus to construct a soda water stand in the city park. The court found that no such sum was paid, and, if it was paid, it was an improper expenditure of partnership funds. In the condition of the record, the finding that such sum was not paid cannot be set aside. The auditor's report merely shows that it was a disbursement reported as made. Credit therefor was not allowed, for the assigned reason that there was no authority to make the disbursement. It is true Navarro testified he made the disbursement, but this testimony was not corroborated in any way, and, he being the defendant in the action, the court was authorized in refusing credence to his statement that he had made the disbursement. Thomas v. Saunders, 150 S. W. 769; Gonzales v. Adoue, 56 S. W. 543; Turner v. Groge, 24 Tex. Civ. App. 554, 59 S. W. 585; Insurance Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203; Railway Co. v. Lucas, 148 S. W. 1149. [1] It is asserted that in a suit between partners for accounting the account books, [3] We are further of opinion that the trial to which both partners have access, are prima court properly taxed the auditor's fee and facie evidence of the true account between all other costs against Navarro, and the asthe partners, and that in such accounting the signment complaining of this phase of the result shown by the books must control, un- case is overruled. Navarro fraudulently or less it is clearly shown that such books are negligently kept the books of the company incorrect. With this proposition as a premise, in such a manner that the appointment of an it is then insisted that, since it was not auditor became necessary in order to assist sonal funds he had mingled with partnership in block 5, Goldsmith's subdivision of the W. funds and in arriving at an intelligent ac- P. Patillo's addition to Ft. Worth, Tarrant counting between the parties. His improper county, Texas. conduct occasioned the litigation and the necessity for appointment of auditor, and the court did not improperly exercise its discretion in taxing all costs against him. Upon the contrary, we think it most properly exercised articles 2035 and 2048, R. S.; 30 Cyc. 749. Affirmed. (No. 8235.) KINCHEN v. AUSTIN et al. -FRAUD. "The said Whitley agrees to pay for said lot and premises the sum of $3,250.00 with interest thereon at the rate of 8 per cent. per annum from date until paid, said payment to Whitley agrees to pay to the said Blakney the be made upon the following terms: The said sum of $20.00 per month, said payment to be made on the first of each month, beginning with the first day of October, 1913. "The said Blakney agrees with the said Whitley that whenever there shall be paid as much as one-fourth of the principal, to wit, $3,250.00, that he will then and there, at the request of the said Whitley, execute a general warranty deed to said premises conveying the same to the said Whitley or to whomsoever he should direct, clear of all liens and incumbrances. Defendant by assignment acquired a contract for the sale of land for $3,500 payable in installments, which further provided that when one-fourth of such amount should be paid the vendor would execute a warranty deed to the premises, conveying them clear of all liens and incumbrances. Defendant sold such contract to plaintiff, informing him that the last provision in the contract would control and that upon payment of one-fourth of the sum mentioned the vendor would convey the land clear of all liens and incumbrances. He, however, did not tell plaintiff that there were any other conditions or understandings except what was in the writ-State of Texas, County of Tarrant. ten contract, and though he was an attorney he did not, in giving his opinion as to the effect of the contract, act or pretend to act as plaintiff's attorney, but did advise him to consult other attorneys, which plaintiff did. Held, that plaintiff was not entitled to rescind his contract with defendant, as defendant's statement was but the expression of an opinion on a question of law, and moreover plaintiff did not rely on such opinion. "Should the said Whitley fail to make his monthly payments, as above agreed, he agrees shall become void. to deliver up said premises, and this contract "October 1, 1913. "[Signed] John R. Blakney. "L. H. Whitley." (On back indorsed as follows :) "I hereby assign and convey to A. G. Baldwin all my right, title and interest in and to the foregoing contract. I am to remain in possession of the premises until March 1st, 1914, payments to be made to J. R. Sandige at the Westbrook Hotel, Ft. Worth, Texas. "L. H. Whitley. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 420-430, 1160, 1164, 1165; Dec. Dig. 94.] "Before me, C. B. Ambrose, a notary public in and for Tarrant county, Texas, on this day personally appeared L. H. Whitley, known to me to be the person whose name is subscribed to the foregoing instrument and assignment thereof and acknowledged to me that he executed the same for the purpose and consideration therein expressed. "Given under my hand and seal of office this 5th day of February, A. D. 1914. [L. S.] C. B. Ambrose, Notary Public, Tarrant County, Texas. "For and in consideration of the sum of $1,Appeal from District Court, Tarrant Coun-000.00. I hereby assign, transfer and convey all my right, title and interest in and to the within ty; J. W. Swayne, Judge. and foregoing contract and the property therein described unto C. R. Kinchen. Witness my hand at Ft. Worth, Texas, this 17th day of February, 1914. A. G. Baldwin. Witnesses: R. N. Dean. Action by S. E. Austin against C. R. Kinchen and J. R. Blakney. Judgment for plaintiff, against defendant Kinchen and he appeals. Reversed and rendered. Poulter & Johnson, of Ft. Worth, for appellant. Mays & Mays and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellees. DUNKLIN, J. J. R. Blakney and L. R. Whitley executed a contract in writing by the terms of which the former agreed to sell, and the latter agreed to buy, a certain lot in the city of Ft. Worth. Whitley assigned his interest in the contract to A. G. Baldwin, who in turn assigned his interest in it to C. R. Kinchen, and Kinchen assigned all his in terest in the contract to S. E. Austin. The original contract, together with said assignments, is as follows: "For and in consideration of $1,050.00 I hereby assign, transfer and convey to S. E. Austin, all my right, title and interest in and to the within and foregoing contract and the property therein described. Witness my hand at Ft. Worth, Texas, this the 15th day of May, 1914. C. R. Kinchen. Witness: W. E. Niel." S. E. Austin instituted this suit against C. R. Kinchen and J. R. Blakney, alleging that under and by virtue of said contract Blakney contracted and became obligated to execute to plaintiff a warranty deed to the property described, free of all liens and incumbrances whenever as much as one-fourth of the purchase price of $3,250, or $812.50, had been paid to him, Blakney; that $240.50 had been paid to Blakney on said contract, leaving a balance of $572 of said $812.50, which balance, less the sum of $300, the amount of delinquent taxes due on the prop "The State of Texas, County of Tarrant. "Know all men by these presents: "That I, J. R. Blakney, have this day bar-erty, plaintiff had tendered to Blakney in gained sold and conveyed to L. R. Whitley the connection with a demand for a deed from following lot or parcel of land, to wit; Lot 31, Blakney to said property free of all liens or |