the facts or the issues that will be involved | then and now resides in Conway county, Ark., in such trial, further than for the purpose of in consideration of the sum of $4,000 cash disposing of the question presented by this recited in said deed to have been paid; that appeal; i. e., whether or not the trial court said property is renting for the sum of $60 abused its discretion in refusing to vacate its per month, and has been since the said Roborder appointing the receiver, or, in other erts acquired same by virtue of replevying words, whether or not appellees' petition and same on the 19th day of April, 1924, in the the proof introduced on the hearing for the suit instituted in the United States District appointment of a receiver made it appear Court at Dallas; that said suit was dismissed that the right or interest asserted by appellee on the Eva Carlisle in the property of the estate of F. G. Osborne was probable, and that said property, rents and revenue arising therefrom was in danger of being lost, removed, or materially injured.

day of May, 1924; that the real estate involved herein is all of the property of the estate of the said F. G. Osborne, deceased, within the jurisdiction of the trial court, and is of the reasonable market value of $5,000.

[6] Under the law, if appellee Eva Carlisle should succeed in establishing her claim against the estate of the said F. G. Osborne, deceased, she would, under article 3314, have the right to foreclose, as against the executrix and devisee of the last will and testament of the said Osborne, the statutory lien existing by virtue of the following provisions of article 3314, Revised Civil Statutes 1925:

of his estate devised or bequeathed by said will "When a person dies, leaving a lawful will, all shall vest immediately in the devisees or legatees; and all of the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; subject however, to the payment of the debts of the testator or intestate except such as may be exempted by law."

The following material facts were established by uncontroverted evidence: That appellee Eva Carlisle and F. G. Osborne, de ceased, made the contract as alleged; that the services, to be performed under terms of said agreement, were performed at the instance and request, and for the use and benefit, of said Osborne by the said Eva Carlisle, from the date of the making of said contract, to wit, on or about October 5, 1921, to November 23, 1923; that she did not receive any compensation of any character for the services so rendered; that, at the time said agreement was made by the appellee and said Osborne, he owned in his own right, and owned at the time of his death, the property described in appellee's petition, all of which was at said date within the jurisdiction of the trial court; that said Osborne, by his last will and testament, of date March 6, 1923, bequeathed all of his said property to his niece, Minnie Bell Plummer, who then and now resides in Conway county, Ark.; that she was constituted by said will the independent executrix of said estate without bond, and the sole legatee or devisee of all of the property of said testator Osborne; said will was probated in the county court of Dallas county, and the said Minnie Bell Plum--the right of appellees for the appointment mer qualified as such executrix on the 8th day of January, 1924; that said will does not by its terms specifically authorize the alienation of any property by said Minnie Bell Plummer as the executor of said estate; that on the 17th day of January, 1924, said Minnie Bell Plummer, as the executrix of the estate of F. G. Osborne, by her deed of that date, assumed to convey the real estate in controversy to appellant, Herbert F. Roberts, who

[7] That, within the meaning of section 1 of article 2293, Revised Civil Statutes of Tex. as 1925-i. e., "in an action by * * a creditor to subject any property or fund to his claim; * * on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured"

of a receiver under the above facts cannot be seriously questioned. To say the least of it, the trial court certainly did not abuse its discretion, either in appointing the receiver or in refusing to rescind that order and discharge him.

It is our opinion that the judgment of the court below should be affirmed, and it is so ordered.

Affirmed.

(287 S.W.)

The agent refused to issue the bills of lading, informing plaintiff of the existence of an embargo against shipments of wheat to Galveston. This was the first notice that plaintiff had received of the existence of said embargo, and the first and only mention The cause was tried on the 22d day of No- of same made to him by agent of the defendvember, 1924, before the court without the ant. The agent did not at this or any other intervention of a jury, and judgment render- time, on account of the embargo, direct the ed on that date in favor of the plaintiff, and plaintiff to unload the wheat already loaded,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
287 S.W.-8

and to release cars to defendant; but said, of defendant, acting through his constituted agent at that time told the plaintiff that the agent, to make known to plaintiff the existwheat could only be shipped by procuring a special permit from the proper authorities allowing said shipment to pass through the embargo, and instructed plaintiff to procure such permit, designating the proper authorities to whom to apply.

ence of the embargo on the shipment of wheat to the port of Galveston. By the act of defendant in placing the cars at plaintiff's disposal, he had the right to assume that the shipment would be made in due time; that is, would move forward to point of destination as soon as the grain intended for shipment should be loaded. The part of this en

apply for and obtain the placement of the cars necessary to ship his grain, the loading of the grain, and the application for bills of lading. The part to be performed by defendant was the placing of the cars, the issuing and signing of bills of lading for the wheat when advised that it was loaded, and then to move cars with due diligence to destination. Therefore no duty rested upon plaintiff to ascertain whether or not defendant was in position to and would discharge his part of the undertaking for the transportation of the wheat from Grand Prairie to Galveston, Tex.

Plaintiff proceeded to complete the loading of the second car, and never unloaded or released either car to the defendant. That, im-gagement to be performed by plaintiff was to mediately after being informed of the embargo, plaintiff made proper application to the authorities controlling the embargo at Galveston, Tex., for a special permit to ship his wheat to that port. This was granted on October 20, 1919, on which date he made application to the agent of the defendant for bills of lading, and bills were issued on that date, and the shipments moved through the regular course of rail traffic to Galveston, Tex. At Galveston, Tex., demurrage charges were assessed by the agent of the defendant and paid by the plaintiff under protest, and without waiving any of his rights thereby, in the amount of $193 on car No. 5915 T. & P. and $143 on car No. 116835 C. B. & Q. The amount of demurrage charges so assessed and paid by the plaintiff are correct in amount.

The placing of the cars was sufficient to induce plaintiff, who was without knowledge of the embargo, to believe that defendant was in position not only to receive for shipment, but to transport and deliver his wheat in Galveston in due course of the movement That, from the time said cars were loaded, of freight by defendant, and was thereby inuntil the time they were started to Galves- duced to make use of the cars so placed for ton, Tex., they remained on the side track at the loading of his grain. But for this inGrand Prairie, Tex., accessible to the plain- ducement, there can be no question that he tiff and to the defendant alike. That said would not have loaded his grain in the cars, embargo was binding on all carriers and expecting same to be transported to Galvesshippers attempting to ship wheat to Galveston. ton. That, although plaintiff made proper On defendant, with knowledge of the existdemand upon defendant for refund of the demurrage charges paid by him, the defendant refused such demand, denying all liability for the claim.

That the Texas & Pacific Railway Company and its properties were being operated and controlled by the government of the United States of America, under proper act of Congress, continuously from January 1, 1918, to January 22, 1920. That Walker D. Hines was properly appointed Director General of Railroads and Federal Agent on March 11, 1919, and served in that capacity until May 18, 1920. That James C. Davis was properly appointed Director General of Railroads and Federal Agent on March 20, 1921, and was at the time of the trial of this case in the court below still serving in that capacity. That plaintiff properly substituted said James C. Davis, as such Director General, for defendant Walker D. Hines, Director General and Agent of Railroads. The legal rights of the parties rest under these facts.

ing embargo, acceding to plaintiff's request for the cars to be placed, there arose a contract between the parties whereby the defendant agreed to place two cars on the loading switch track for plaintiff, and to place same in transit for Galveston as and when the plaintiff should load. At this time the defendant knew, and therefore we are to assume that the agent representing defendant in this transaction with plaintiff knew, of the existence of the embargo on the subject-matter of this contract to Galveston, the point of destination in the agreement as made between the parties. Under this relation of the parties, there devolved upon the defendant the duty of informing plaintiff of the existence of the embargo and refusing to place the cars for the plaintiff, or to discharge the obligation assumed by defendant, as a part of the contract of shipment to obtain the permit for said wheat to go forward, without any additional obligation being thereby placed upon plaintiff.

Under the law, as same has been developed [1] It was not due to any negligence of or from time to time applicable to common cardefault on the part of the plaintiff that he riers, the existence of certain conditions or found himself in an embarrassing position circumstances will justify a common carrier in reference to the shipment of his wheat in refusing to accept a shipment offered. after it had been loaded, but to the failure These conditions occupy a well-defined posi

(287 S.W.)

18, 1919, approved by the American Railway Association November 19, 1919, and effective December 1, 1919. The matters involved in the case at bar arose between September 1 and October 20, 1919. We are, therefore, of the opinion that said rules and charges are immaterial and irrelevant to any issue involved in this case, and therefore, regardless of their purport, should not be received as evidence bearing upon the rights of the parties.

tion in the law, and, where one of them ex-, terstate Commerce Commission on October ists at the time a shipment is offered to the carrier, it is authorized on account thereof and protected by the law in refusing such shipment for transportation. However, the carrier, under the law, cannot refuse to accept a proffered shipment if there does not exist at the time the shipment is offered conditions, either at common law or by statutory law, on which such refusal could be based. In this case, the embargo was such an excuse because it was pursuant to law and was imposed by the properly constituted authorities. Therefore, at the time plaintiff requested the defendant to place the cars for loading wheat to be shipped to the port of Galveston, the defendant had a valid legal excuse for both refusing to spot the cars and receiving plaintiff's wheat for transportation to Galveston. The defendant therefore owed

We are of the opinion that the proper judgment was rendered by the trial court, and that same should be in all things affirmed. Affirmed.

LEE et al. v. LEWIS. (No. 376.) *

(Court of Civil Appeals of Texas, Waco. June

10, 1926. Rehearing Denied
Oct. 7, 1926.)

the plaintiff the duty to inform him of the existence of the embargo when plaintiff requested the cars, to the end that he would not change his position to his detriment; for it is to be assumed that had the plaintiff. Judgment 199 (3)-Rendition of Judgment been notified of the existence of such an embargo at the time he applied for the cars, he would not have gone to the trouble and expense of loading the cars with wheat with the knowledge of the fact that same could not be forwarded for delivery.

non obstante veredicto held proper only when pleading and undisputed testimony clearly war. rant it.

be rendered, it must appear, as matter of law, Before judgment non obstante veredicto can from pleadings and undisputed testimony that no other judgment could have been rendered, and that issues found by jury were immaterial and should not have been submitted.

2. Bills and notes 139(2).

In absence of definite time of extension of payment on note, debtor not agreeing to refrain from paying before end of extension period, agreement is not binding, there being no consid

From these facts it follows as a logical deduction that, at the time plaintiff requested the cars in question, defendant's agent having knowledge of the existence of the embargo on the shipment desired to be made, the of payment definite period, in consideration of Agreement by holder of note to extend time withholding by him of such information through his acts and conduct in not disclos-payment with interest on date to which extended, is valid. ing same to plaintiff operated to estop defendant from setting up that embargo for 3. Bills and notes 139 (2). any purpose, whether to receive the wheat or to forward same; as when the cars were placed, defendant had notice that such cars were to be loaded with wheat to be shipped to Galveston as the point of destination. Therefore defendant waived the protection which the existence of the embargo gave him to refuse the shipment, and the placing of the cars had the effect, notwithstanding the existence of the embargo, to create the agreement on the part of the defendant to forward the shipment to Galveston, as if the embargo did not exist; therefore, to permit defendant to plead this embargo against plaintiff's right to recover the demurrage paid would be inequitable and unjust.

We do not think the facts show that defendant had the right to charge and collect the sum that was exacted from plaintiff as demurrage, on account of the detention of the cars in question.

eration.

4. Bills and Notes 139 (2)-Where defendants, by time extension agreement, were given opportunity to pay note when money was obtained from different sources, such agreement was invalid as failing to extend time definite period.

Where defendants were, by time extension agreenient, given opportunity to pay note either upon oil well coming in or upon realizing money from leases, no definite time extension was fixed and agreement was invalid, defendants having right to pay at any time.

5. Bills and notes

140-Four years held un

reasonable time for duration of indefinite time extension agreement on matured note.

If valid, indefinite time extension was agreed upon, action on note could be maintained four years after maturity, such period being beyond reasonable time extension.

[2] The defendant offered and the court admitted in evidence the National Car Demurrage Rules and Charges, effective December 1, 1919; said rules and charges show on Appeal from District Court, Tarrant Countheir face to have been approved by the In-ty; Bruce Young, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Writ of error dismissed for want of jurisdiction November 24, 1926.

Action by Chas. R. Lewis against Walter, motion of appellee, entered judgment for him J. Lee and others. From a judgment for for the full amount unpaid on said note, plaintiff, and an order overruling a motion with interest and attorney's fees. for new trial, defendants appeal. Affirmed. Ocie Speer, of Austin, and Phillips, Trammell & Chizum and Evan S. McCord, all of