there was no fixed rental value of the tank cars throughout the year. That, if plaintiff had had the car during the time it was delayed, it would have used same for hauling cotton seed oil. There was a steady demand for tank cars during that season. The market on oil has something to do with the value of tank cars, and their value is to a great extent determined by the buyer because of their availability to move oil during the time the seller wants it moved. That at least $10 per day was the reasonable value of the use of the tank for the purpose of hauling and transporting cotton seed oil for sale or otherwise, from December 21st to March 2d. That plaintiff was unable to get other tank cars to haul oil while out of the use of the one in question. That, some days after appellants had received the car, notice was given them of the importance of prompt return of the car and of the particular use for which it was intended, and that it had been sent to Frost to be loaded with cotton seed oil. "The testimony above which is italicized was all objected to upon the ground that it tended to show a special use, special damage, and special matters of which defendants had no notice at the time of the execution of the bill of lading and delivery of the car and was therefore irrelevant, immaterial, and pertained to no issue. value, and have answered question No. 1 in the negative, then, in that event, you will answer the following question: What was the reasonable value of the use of the car during the period when same was detained, to persons generally in the business of hauling and transporting cotton seed oil? Answer: $514.73. "The testimony shows: That empty oil tank car No. 109 was delivered to San Antonio & Aransas l'ass Railway Company December 21, 1908, under bill of lading which provided that the tank should be carried to Frost, Tex., and there loaded by the Planters' Oil Company and returned. That the routing was over the San Antonio & Aransas Pass Railway to Waco, over St. Louis & Southwestern Railway Company of Texas to Frost, to be returned to Waco by that company and from thence to Houston by the San Antonio & Aransas Pass Railway Company. The billing did not show what it was to be loaded with. That car No. 109 was purchased and owned by Houston Packing Company to be used in transporting cotton seed oil. That the car was not returned to plaintiff until the 24th day of February, 1909. That a reasonable time to take the car to Frost and return would be ten days. That the car was diverted at Waco by the St. Louis & Southwestern Company. (In this connection, it was agreed that, as between these carriers, the liability, if any, was against the St. Louis & Southwestern Railway Company.) That the Houston Packing Company used fuel oil to run its plant, and sometimes had its cars come in loaded therewith. That it owned nine oil tank cars, and, during the period of the detention of car 109, they used their cars and other cars exclusively for transporting cotton seed oil. The testimony does not disclose how many oil tank cars were handled by defendants for the Houston Packing Company prior to the time of the diversion of car 109. That the Planters' Oil Mill Company, the consignee, handled cotton seed products, crude cotton seed oil. Crude oil is just as it comes from the seed. The Planters' Oil Mill Company does not deal in fuel or mineral oils. That the crude oil is purchased of the mills in the interior, and the refining is done at such concerns as the Industrial Cotton Oil Company, Merchants' & Planters'. That the general purpose of the cars is for trans- "Fourth question: Does this case come withporting the crude oil from the oil mills that in the rule announced by the Supreme Court in do not operate refineries to the refineries and Bourland v. Railway Co., 99 Tex. 407, 90 S. refining the crude oil into the finished product. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. That plaintiff put on the line of tank cars for St. Rep. 647, so as to render defendants liable the express purpose of handling cotton seed oil. for the value of the special use of the car from It was unable to get cars with any degree of the time notice was given them of the imcertainty from the railroad company when need-portance of prompt return of the car and of ed. That, during the time this car was detain- the particular use for which it was intended, ed, plaintiff bought cotton seed oil from mills and that it had been sent to Frost to be loaded in Cuero, Yoakum, Giddings-all over South with cotton seed oil?" Texas. That Cuero is on the San Antonio & Aransas Pass Railway. That car 109 on December 11th went to Waxahachie for oil, on December 18th it arrived from Waxahachie, law not presented in the certificate, to which and on December 21, 1908, left for Frost, Tex. That customarily the railroads on receiving we will confine our answers. The rules for certifying questions to this billing for one of these cars come to plaintiff's yards and get the car. That prior to December court have not been complied with, and the 18th plaintiff purchased cotton seed oil on the certificate should not have been filed. Howline of the San Antonio & Aransas Pass Railway, at Beeville, San Antonio, Cuero. That it ever, we will make the best answer that we was during the first days of January, 1909, may be able upon the facts stated. that the defendants learned that car 109 had been diverted. That defendants then knew that plaintiff was demanding the return of the car at once. That an agent of the St. Louis & Southwestern came and talked to plaintiff about the detention of the car about this time. That a demand was also made of the San Antonio & Aransas Pass Railway Company. That at one season plaintiff required the use of the car more than at another season, to wit, during the busy season, which opens with the cotton sea son in August and September and closes in March. That the period that this car was out "First question: Should the measure of plaintiff's damage, under the above statement of what the testimony shows, be determined by the rules of law on that subject, applicable to breaches of contract, or would the fact that defendants were common carriers and as such owed a public duty to carry with reasonable dispatch, irrespective of the contract, make applicable the measure of damages for delay, as in cases of tort? For statement of distinction of rules, see Sutherland on Damages (3d Ed.) par. 45. "Second question: From the testimony above stated, would knowledge be imputed to the defendants so as to render them liable for the value of its use for that purpose, rather than its general use for oil transportation? "Third question: Was the italicized portion of the testimony admissible as against the objections urged to it? [1] Counsel for appellee in their argument discuss facts not disclosed and issues of [2, 3] We understand that the Houston Oil Company delivered the car to the San Antonio & Aransas Pass Railway Company at Houston on December 21, 1908, to be delivered by that railroad company to the St. Louis & Southwestern Railway Company at Waco, Tex., and to be by the latter company carried to Frost, and delivered to the Planters' Oil Company to be loaded with crude cotton seed oil and by said railroad returned to "show what the car was to be loaded with.' The car was not returned to its owner until February 24, 1909, being 86 days. Ten days would have been reasonable time for its return. The statement does not show at what time the St. Louis & Southwestern Railway Company delivered the car to the Planters' Oil Company, nor at what date it was returned by that oil company to the St. Louis & Southwestern Railway Company for transportation to Houston. We are not able to intelligently answer the several questions separately; therefore we will answer generally as we understand the facts: Assuming that the delay occurred in delivering the car to the Planters' Oil Company, and that the railroad company was not informed that it was to be loaded with oil, the value of the ordinary and usual use of such car would be the measure of damages for the failure to deliver it to that company within a reasonable time. If the delay occurred after the car was loaded and returned to the railroad company and after it had been notified of the purpose to transport the oil to Houston for use there, the St. Louis & Southwestern Railway Company would be liable for such damages as would ordinarily result from the failure to deliver to the Houston Oil Company for the use to which the oil was to be applied. The facts certified show no special damages. The following cases state the law applicable to the facts: Railway Co. v. Belcher, 89 Tex. 428, 35 S. W. 6; Bourland v. C. O. & G. Ry. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647. We do not answer abstract questions of law, and have therefore not directed our reply to any specific question. MARSHALL v. G. A. STOWERS FURNITURE CO. et al. (No. 5285.) (Court of Civil Appeals of Texas. San Antonio. May 20, 1914.) 1. CHATTEL MORTGAGES (§ 287*)-FORECLOSURE AGAINST TRANSFEREE-JUDGMENT. con Where the petition, in an action to foreclose chattel mortgages, against the mortgagor and his assignee and for general relie tained no allegation that the mortgages were duly filed for record, a personal judgment against the assignee as for a conversion was erroneous, except as to costs. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 570; Dec. Dig. § 287.*] 2. PAYMENT (§ 45*)-APPLICATION. Where a petition, in an action to foreclose several chattel mortgages, did not show how the mortgagor's payments, which were sufficient to pay the first mortgage, had been credited, they would be applied to the payment of the first mortgage. I given to an attorney for collection, or if suit was brought thereon, an additional 10 per cent. fees covered fees only upon the principal remainon the principal should be added as collection ing unpaid at the time the claim for fees accrued, and not fees upon the original principal. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 579; Dec. Dig. § 290.*] 4. COURTS (§ 122*)-JURISDICTION-COUNTY COURT-PETITION. Where the debt sued for is less than the minimum prescribed to give jurisdiction, and the value of the property upon which a chattel mortgage is sought to be foreclosed is not alleged, the petition fails to show that the court has jurisdiction. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.*] 5. COURTS (§§ 169, 170*) — JURISDICTION COUNTY COURT-PETITION. The jurisdiction of the county courts in by the amount of the debt where the value of suits to foreclose chattel mortgages is governed the mortgaged property is less than the debt, but where the value of the mortgaged property exceeds the debt, such value fixes the jurisdiction; and hence a petition to foreclose a chattel mortgage and for attorney's fees, together amounting to more than the minimum jurisdictional amount of $200, must affirmatively allege the value of the property at the time of suit, to ceeded. show that the maximum jurisdiction is not ex [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 413-425, 427-436, 443, 456, 458, 465; Dec. Dig. §§ 169, 170.*] Error from Harris County Court, at Law; Clark C. Wren, Judge. Action by G. A. Stowers Furniture Company against D. Maples and J. J. Marshall. Judgment for plaintiff, and defendant Marshall brings error. Reversed and remanded. W. J. Moroney, of Dallas, for plaintiff in error. MOURSUND, J. The G. A. Stowers Furniture Company, a corporation, sued D. Maples and J. J. Marshall, alleging that on September 6, 9, 10, and November 1, 1909, and on March 7, and September 29, 1910, it sold and delivered to said Maples certain goods set out in Exhibit A, for which Maples agreed to pay the sums of money set opposite the items of goods, aggregating $910, which amount was to be paid at the rate of $50 per month; that on October 29, 1909, to secure the payment of $784.95 on said amount, Maples executed to plaintiff a chattel mortgage on the goods set out in Exhibit B, wherein he agreed to pay $50 per month until the full sum was paid; that he has made no payment since December 6, 1911, as will be seen from said Exhibit B; that to secure $53.50, on November 1, 1909, and December 7, 1909, when the goods described in Exhibits C and D were delivered, said Maples executed two chattel mortgages on said goods, but it was specially agreed that he was only to pay the $50 per month on all the goods described in his mortgage of October 29, 1909 (Exhibit A); that on said account for goods so delivered to Maples he has only paid $790, Provisions in chattel mortgages that, if default was made in any payments and they were leaving a balance due plaintiff of $120, which became due January 16, 1912; that in each of said mortgages it was provided that if default was made in any of the payments provided for therein, and it was placed in the hands of an attorney for collection, or suit was brought on the same, then an additional amount of 10 per cent. on the principal of said mortgage should be added to the same as collection fees; that, Maples having failed to carry out his contracts, plaintiff was compelled to bring this suit to enforce collection of the amounts due, and by reason thereof Maples has become liable to plaintiff for $91, being 10 per cent. on the amount due plaintiff for the original purchases; that plaintiff duly recorded its chattel mortgage, dated October 29, 1909, on November 20, 1909, and thereafter Maples sold and delivered to J. J. Marshall the goods set out in the exhibits, and Marshall holds the same, claiming some interest therein hostile to plaintiff's interest. Plaintiff prayed for judgment against Maples for $120 and the further sum of $91 attorney's fees, and against both defendants for foreclosure of its liens, and for general relief. Exhibit A is a general account against D. Maples, dated September 2, 1912, for goods sold him from September 6, 1909, to September 29, 1910, the items aggregating $910.20, showing credits of $50 paid each month, beginning on September 7, 1909, and ending in June, 1910, then a credit of $100 in August, 1910, followed by $50 credits during each of the four succeeding months, and closing with a $40 credit paid December 16, 1910, said credits aggregating $790. Exhibit B, a copy of the chattel mortgage dated October 27, 1909, contains a list of furniture and goods, with purchase price stated after each item, aggregating $784.95, which Maples promised to pay as follows: $50 upon delivery and $50 each month thereafter until the entire amount should be paid. The items described in this mortgage are the same described in Exhibit A as sold on September 6, 9, and 10, 1909. Exhibit C is a copy of the mortgage dated November 1, 1909, for $45.50, upon certain goods corresponding to those set out in Exhibit A as sold November 1, 1909. This instrument does not provide when the amount thereof shall be paid. Exhibit D is a copy of a mortgage dated December 7, 1909, for $8, for a telephone stand, and said item appears upon Exhibit A as sold on December 7, 1909. This mortgage also fails to provide when the amount is to be paid. balance due on the account sued on, and $91 as attorney's fees, described as the amount provided for in the chattel mortgage, also reciting the execution and delivery of the three chattel mortgages, Exhibits B, C, and D, and that Marshall has converted all of such mortgaged property to his own use and benefit, although the mortgages were on file, and decreeing that if plaintiff cannot make the $120 and interest thereon and the $91 out of Maples, then that plaintiff recover same from Marshall; also foreclosing the chattel mortgage liens against both defendants for the full amount of the judgment, and providing for execution against both of them. [1] Various errors, alleged to be fundamental in character, are assigned. The first is that the court erred in rendering a personal Judgment other than for costs against Marshall, because plaintiff's petition contains no allegation sufficient to support such judgment. The assignment is well taken. We do not consider the allegations sufficient to show a conversion by Marshall of the property, nor a right of foreclosure as against Marshall of the liens designated as Exhibits C and D, because it is not alleged that such instruments were duly filed for record. The judgment finds Marshall guilty of conversion of all the property described in the three mortgages, and decrees a foreclosure of the three liens, and not only that, but gives a personal judgment against Marshall, and also a judgment of foreclosure, for the total amount due when it appears that $71.75 was never secured by mortgage and there is no allegation that said amount has been paid. The three mortgages together call for the sum of $838.45, leaving two items, aggregating $71.75, unsecured. No credits appear to have been indorsed upon the mortgages. The defendants failed to appear, and the court entered judgment reciting that he had heard the evidence, and decreeing that plain [2] By the second assignment complaint is made of the foreclosure of the chattel mortgage dated October 27, 1909, because it appears from the allegations of the petition that the debt thereby secured has been entirely paid. Plaintiff did not show in the petition how the payments were credited. If they were credited upon the items first accruing, the amount secured by mortgage B was paid off. In the absence of allegations showing upon what debt the payments were credited, we must assume that they were not appropriated to any particular debt by either the debtor or creditor, and should therefore be applied by the law, according to the equity and justice of the case. Taylor v. Coleman, 20 Tex. 772; Rodgers-Wade Furniture Co. v. Wynn, 156 S. W. 343; Willis & Bro. v. McIntyre, 70 Tex. 34, 7 S. W. 594, 8 Am. St. Rep. 574; Fisher v. Brown Hardware Co., 47 Tex. Civ. App. 58, 103 S. W. 655; Shuford v. Chinski, 26 S. W. 141; Phipps v. Willis, 11 Tex. Civ. App. 186, 32 S. W. 801. Under such rule, and under the authorities cited, they should be applied to the payment of the mortgage first given. It devolves upon plaintiff to allege what portions of the debts are still due, and whether the payments were appropriated to any particular debt by the debtor or creditor. In error. The third assignment is sustained. It relates to a matter discussed under the first assignment. petition shows that the first mortgage is paid. I the debt, the value of such property fixes the We, therefore, sustain the assignment of jurisdiction. In such cases it is well settled that the amount in controversy is determined by the value of the property. Cotulla v. Goggan & Bro., 77 Tex. 32, 13 S. W. 742; Texas & N. O. R. Co. v. Rucker, 38 Tex. Civ. App. 591, 88 S. W. 815; McDaniel v. Staples, 113 S. W. 596; Walker Mercantile Co. v. Raney, 154 S. W. 317. In all cases of this character filed in the justices and county courts, even though the debt be one of which such courts would have jurisdiction were no foreclosure of lien sought, the inquiry is always a mate. [3] By the fourth assignment complaint is made of the rendition of judgment for $91 attorney's fees. This was erroneous. In the first place, as to items aggregating $71.75 due upon open account, there never was any obligation to pay attorney's fees. In the second place, if mortgage B was paid off in full, no fee could be collected thereon. And final-rial one as to the value of the property. We ly the clause alleged, and shown by the ex- are unable to see how in such cases it can hibits made part of the petition, should not affirmatively appear from the pleadings that be construed as calling for attorney's fees the court has jurisdiction, unless both the upon the original principal of the obligations, debt and the value of the mortgaged property but merely upon the principal thereof remain- are alleged. If it be essential to the jurising unpaid at the time the claim for at- diction of the court that the value of the torney's fees accrued. mortgaged property shall not exceed the [4, 5] By the fifth assignment it is contend- maximum amount, of which said court has ed that the petition fails to allege a cause of jurisdiction, the value must be alleged at a action within the jurisdiction of the county sum within the jurisdiction of the court, othcourt. There is no issue made as to plain-erwise the court cannot tell whether or not tiff's good faith in claiming attorney's fees it has jurisdiction. The statement of a debt on the original principal of the mortgages, at a sum of which the court in ordinary suits so we must take the petition as a suit to re- for debt has jurisdiction cannot help matters, cover more than $200. The value of the per- because the fact still remains that in this sonal property at the time of suit upon which kind of a case the court may or may not have foreclosure of the mortgages is sought is not jurisdiction. The petition must affirmatively alleged. It is of course well established that show that the court has jurisdiction, not that if the debt sued for be less than the mini- it may have. mum prescribed to give jurisdiction, and the value of the personal property upon which a mortgage is sought to be foreclosed is not alleged, the petition fails to show that the court has jurisdiction. But in cases in which the sum sued for would give jurisdiction were no foreclosure of mortgage lien sought, but in which the value of the mortgaged property is not pleaded, our courts have been unable to agree upon the question whether the petition affirmatively shows the court to have jurisdiction. The Third Court of Civil Appeals, in the case of Cantrell v. Cawyer, 162 S. W. 919, has held that in such cases the jurisdiction of the court appears from the face of the petition, while the Courts of Civil Appeals of the First, Second, and Eighth districts hold the contrary. See Stricklin v. Arrington, 141 S. W. 189; Bates v. Hill, 144 S. W. 289; Wilson v. Ford, 159 S. W. 73; Randals v. Bank, 162 S. W. 1190. The jurisdiction of the courts in suits to foreclose mortgages upon personal property is governed by the amount of the debt in cases in which the value of the mortgaged property is less than such debt, but in cases in which the value of the mortgaged property exceeds The courts appear to have drawn different conclusions from the opinion of the court in the case of Cotulla v. Goggan, supra. The case is authority for the proposition that if the value of the mortgaged property is more than $200, the justice court has no jurisdiction. The question now being considered was not passed upon; in fact it does not appear that the plaintiff's pleadings in the justice's court omitted the allegation that the piano was worth less than $200. The court did not go into details, and it is probable that defendant's plea was one to the effect that plaintiff had fraudulently misstated the value of the piano in order to confer jurisdiction upon the justice's court. The court, we think, did not intend to relieve plaintiffs from the burden of affirmatively alleging facts showing the jurisdiction of the court. and place the burden upon defendants of pleading and proving a want of jurisdiction. We hold that plaintiff herein must allege the value of the personal property at the time of suit upon which he seeks to foreclose his mortgage lien. The judgment is reversed, and the cause remanded. SUPREME HIVE OF LADIES OF MACCA- (Court of Civil Appeals of Texas. Dallas. Where a member at large of a fraternal insurance order composed of local hives and a Supreme Hive paid dues and assessments to a third person, who remitted them to the Supreme Hive, who received them without objections, and the member, receiving no instructions from the Supreme Hive not to pay any further dues or assessments to the third person, continued during his life to pay dues and assessments to the third person, who never remitted them to the supreme officers, the order could not defeat a recovery on the benefit 1. certificate on the ground of failure to pay dues and assessments. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1903, 1905; Dec. Dig. § 753.*] Appeal from Dallas County Court; W. F. Whitehurst, Judge. ments as she had done theretofore, after the 1st of March until her death. This money was received by Harvey, but he never remitted it to the Supreme Secretary. This should not affect the plaintiff's claim, as the evidence shows Mrs. Logan paid the money to Harvey without notice of said instructions. The evidence, we think, fully sustains appellee's claim, and, finding no reversible error in the record, the judgment is affirmed. Homer L. Baughman and Odell & Turner, RAINEY, C. J. Appellee sued appellant to recover on a benefit certificate issued to his mother, Mrs. Jennie Logan, for $500. Appellant denied liability, on the ground that Mrs. Logan was suspended long prior to her death for failure to pay dues and assessments as provided in the by-laws of the order. Judgment being rendered against the appellant, it appealed. While there are many questions raised by appellant, a decision of the case rests upon the question whether or not L. O. Harvey was the agent of appellant and authorized to receive dues and assessments from bers. CHARLES B. SMITH & CO. v. DUNCAN. (No. 5331.) (Court of Civil Appeals of Texas. Austin. TRIAL (§ 156*)—QUESTIONS FOR JURY-NON SUIT. In determining whether there is sufficient evidence to carry an issue to the jury, only plaintiff's evidence should be considered. 2. SALES (8 88*)-ACTIONS-PURCHASE PRICE. Action by Ocie Owens against the Supreme In an action for the purchase price of a Hive of the Ladies of the Maccabees of the large quantity of cotton, which the seller claimWorld. From a judgment for plaintiff, de-ed was to be fixed by the market price in a certain locality, evidence for plaintiff held suffifendant appeals. Affirmed. cient to carry the iss whether that was the agreement between the parties to the jury. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 248-250; Dec. Dig. § 88.*] [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 354-356; Dec. Dig. § 156.*] 3. SALES ($ 77*)-ACTIONS-NOTICE OF SALE. Where cotton was sold under an agreement that the sale price might be fixed at the market price of any day between delivery and the succeeding March, the seller, who notified the buyer's clerk, and attempted to notify the buyer, but was unable to see him, because of his illness, is entitled to have the sale price fixed as of the day he selected, notwithstanding he was unable to personally notify the buyer. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 208-212; Dec. Dig. § 77.*] 4. SALES (§ 77*)—Contracts-CONSTRUCTION. Where cotton was sold under an agreement that the sale price could be fixed at the market price of any day selected by the seller between delivery and the succeeding March, and on the day selected by the seller the buyer was mem-ill, and could not personally be notified, the buyer ratified the seller's selection, where, upon finally receiving notice of the seller's demand, he promised settlement as soon as he recovered. 5. SALES (8 77*)-CONTRACTS-CONSTRUCTION "OUR BASIS LIMIT." Mrs. Logan became a member of Uniform Hive No. 68 of said order. Said hive demised, but, under the rules of the order, Mrs. Logan remained a member at large of the Maccabees, and paid her dues and assessments to L. O. Harvey, who remitted the same to the Supreme Hive, who received said Where cotton was sold under an agreement payments. No objection was made to this on for settlement on the buyer's basis limit at any the part of the Supreme Hive. Mrs. Logan time between delivery and March 1st, the selldied on August 26, 1912, and it is claimed er's option as to date, the buyer could not, because he was out of the market for two months, she paid no dues or assessments after March preclude the seller from selecting a day during 1, 1912, and, if she did so, Harvey was not one of those months as basis for settlement, authorized to receive them, as he had been for the words "our basis limit" usually mean the same thing as the market price, and the instructed by the Supreme Hive not to re-agreement that the seller should have his opceive any dues or assessments from any tion as to selecting the day carried an implied member after the 20th of each month. These agreement that the buyer should be in the market during the time specified, or, if not, that his instructions were never communicated to basis would be the market price. Mrs. Logan, and she continued to pay into [Ed. Note. For other cases, see Sales, Cent, the office of said Harvey dues and assess- Dig. §§ 208-212; Dec. Dig. § 77.*] [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 208-212; Dec. Dig. § 77.*1 |