(218 S.W.) worth $2,000 at the time said Pete Fulbright, Sr., died. And they further found that the life estate owned by the widow of the second marriage in said 200 acres was worth $1,450. The theory on which the trial court acted, it is assumed, was that the ownership of the 200 acres at the death of Pete Fulbright, Sr., passed (subject to an estate for life in the widow in one-third thereof, and to her right to use all of it as a homestead while she lived), one-third to Mrs. Rutherford, onethird to H. E. Fulbright, and one-third to the minor, Pete Fulbright, afterward Mrs. Deaver, with a right in said minor, in a partition thereof between her and Mrs. Rutherford and H. E. Fulbright, to have them ac count for the value of the 175 acres at the time Pete Fulbright, Sr., conveyed same to them. Vernon's Statutes, art. 2467. The jury having found that the 175 acres was worth $2,000 at that time, that the 200 acres at the date of Pete Fulbright, Sr.'s, death was worth a like sum, and that the value of the life estate of the widow in the 200 acres was worth $1,450, the court concluded, it seems, that the value of the 200 acres, less the value of the widow's life estate in a part of it, and charged as it was with the right of the widow to use same as a home stead while she lived, was less than one-half the value of the 175 acres conveyed to Mrs. Rutherford and H. E. Fulbright, and there fore that they were not entitled to have any part of the 200 acres set apart to them in a partition. We think the conclusion the court reached was warranted by the testimony in the case. Appeal from Bowie County Court; J. B. Lytal, Judge. Suit by T. N. Griffin against C. F. Smith. From judgment for defendant, plaintiff appeals. Reversed, and judgment rendered for plaintiff. Dorough, Crumpton & Lincoln, of Texarkana, for appellant. O. B. Pirkey, of New Boston, for appellee. LEVY, J. The appellant brought the suit to recover the value of two bales of cotton, alleging the breach of a contract on the partof the appellee to hold and deliver the said cotton on appellant's demand therefor. The defendant pleaded denial, and specifically that the cotton was left by the plaintiff on the cotton platform of the defendant merely for the convenience of the plaintiff until he should see fit to remove same, and that the defendant never at any time took charge or exercised any authority over the cotton. The case was submitted to the jury on two certain issues, and judgment was entered for the defendant. Appellant predicates error on the refusal of the court to give a peremptory instruction. The pleadings and evidence present, we conclude, when properly considered, a case of ordinary bailment. The appellee maintained a cotton platform for profit, charging 20 cents for storage and 10 cents for weighing cotton. The defendant kept an agent in charge of the platform, who did the weighing and accepted cotton from the public generally for storage. The testimony, we think, of both the defendant There is no error in the judgment, and it and his agent, is that he had authority to is affirmed. GRIFFIN v. SMITH. (No. 2187.) accept cotton for storage and that he exercised it in this and many other instances. On September 27, 1918, the plaintiff left one bale of cotton with the defendant weighing 587 pounds, and on October 4, 1918, he left another bale with the defendant, weighing 500 pounds; both of said bales being accepted by defendant's agent for storage, to be held until such time as the plaintiff should call for the same. A receipt was 1. BAILMENT 12-ORDINARY CARE REQUIR- given for the two bales of cotton, reading as follows: ED ON DELIVERY OF COTTON TO HOLD UNTIL "Hooks, Texas, 10-4-1918. "Received of Williams & Griffin, for account Where plaintiff left two bales of cotton with defendant, the bales being accepted by defendant's agent for storage to be held until of T. N. Griffin: plaintiff should call for them, alleged to have been received only for plaintiff's convenience, and receipt stating it was not a public warehouse, a bailment resulted, requiring defendant to exercise ordinary care to hold and return the cotton. 2. BAILMENT 31(3) EVIDENCE SHOWING BREACH OF DUTY TO HOLD AND RETURN. Evidence held to show conclusively a breach of defendant's duty as bailee of cotton to hold the bales for plaintiff as agreed, and to return them on demand. No. Weight. Price 2 "Bales of Cotton. Less weighing.. Unload $34.65 10¢ 10¢ $. "C. F. Smith, Weigher, "Not a public warehouse receipt. O. K." On or about the 24th of December, 1918, the plaintiff, having sold these two bales of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the firm of Conway & Duncan. Judgment for plaintiff, and defendant Duncan appeals. Reversed and rendered. cotton, together with the other cotton then | Action by F. P. Kirkendall & Co. against stored with the defendant on the platform, J. T. Conway and W. P. Duncan, composing called on the agent for the cotton. At that time plaintiff had nine bales of cotton in storage there. The agent delivered to the plaintiff seven bales, but did not deliver to him the two bales of cotton in controversy. The agent and the plaintiff made a careful search over the yard for the two bales of cotton above mentioned, but they could not be found. The defendant testified as fol-vember 20, 1915, J. T. Conway and W. P. lows: "There are now two bales of cotton on the platform that I do not know who they belong to. I do not know what became of Mr. Griffin's cotton, and I do not know whose cotton that is now on the platform. I know Mr. Griffin's cotton is not there now." [1, 2] The price that these two bales had sold for on the day of the demand was 31 cents per pound; and the plaintiff, having been paid this amount, returned it to the buyer after the two bales of cotton could not be found. There was no controversy over the value of the two bales of cotton, the only proof being that it was worth 31 cents per pound and was of the total value of $336.97. The legal effect of these facts is to show a bailment requiring the exercise of ordinary care on the part of the appellee to hold and return the two bales of cotton, and the evidence conclusively shows a breach of that duty. 2 Cooley on Torts (3d Ed.) p. Browne v. Johnson, 29 Tex. 40; Fraam v. Cas. 96. Moore & Hardison, of Paris, for appellant. WILLSON, C. J. At the time, to wit, No Duncan, composing the firm of Conway & Duncan, merchants, were adjudged to be bankrupts, on a petition against them filed November 6, 1915, they were indebted to appellees on account for merchandise shipped to them October 9, 1915, in the sum of $370.20. Pending action on an offer by said Conway & Duncan to their creditors of 33% per cent. of the amount of their respective to commence and prosecute sequestration claims as a composition, appellees threatened proceedings for the recovery of the goods they had shipped to Conway & Duncan. The latter, fearing the commencement of such proceedings would cause other creditors to reject the composition offered, agreed with appellees, if they would not begin such a suit but would instead accept the composition, to pay them the difference between the and said sum of $370.20. Afterward, same sum they received by participating therein having been accepted by the creditors conthe court, and thereupon appellees were paid cerned, the composition was confirmed by the amount they were entitled to by the terms thereof, to wit, $123.40. None of the other creditors at the times they respectively accepted the composition, nor the court at about appellee's claim of a right to recover the time he approved same, knew anything back the goods they had sold to Conway & Duncan, nor about the latter's agreement with reference thereto. After the discharge in the bankruptcy proceedings of said Conway and said Duncan individually and as partners, appellees commenced this suit against them, seeking thereby to recover $206.80 as the difference between the amount they recovered in said composition and $40 additional paid to them by Conway & Duncan, and the amount of their said claim for $370.20. The appeal is by Duncan alone from a judgment in appellees' favor for the sum they sued for against him, said Conway, and said firm of Conway & Duncan. Duncan insists that the effect of the confirmation by the bankrupt court of the composition offered by his firm, and of the order of said court discharging him, was to release him from the liability appellees sought by their suit to establish against him. Appellees do not deny that such, ordinarily, Appeal from Lamar County Court; W. L. would be the effect of the action of the bankHutchison, Judge. rupt court, but they insist that it did not The judgment is reversed, and a judgment is here rendered in favor of the appellant for the sum of $336.97 and for costs of the trial courts and of this court. CONWAY & DUNCAN v. F. P. KIRKEN- (Court of Civil Appeals of Texas. Texarkana. CONTRACTS 113(2) SECRET COMPOSITION AGREEMENT WITH CREDITOR VOID. An agreement by a bankrupt with a creditor to pay the entire amount due the creditor in consideration that such creditor should not seek by sequestration proceedings to recover goods sold to the bankrupt by such creditor, but should accept a composition offer, was illegal and void, where the other creditors had no knowledge thereof, and recovery could not be subsequently had from the bankrupt for the balance. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) have that effect in this instance because of | puted here. We therefore are not in this case the agreement of the bankrupts to pay their concerned with the general equitable principle claim in full if they would not seek by sethat composition agreements are invalid if based questration proceedings to recover the goods upon or procured by a secret arrangement with sold to them, but, instead, would accept the one or more favored creditors, in violation of the equality and reciprocity upon which such composition offered. Controverting this conan agreement is avowedly based." tention, Duncan by his pleadings in the court below insisted, and insists here, that the agreement appellees relied upon was illegal and therefore void. The rule he invokes as applicable to the case is stated in 12 C. J.ings commenced at the time they threatened 287, where many authorities are cited, as follows: "Any agreement with or promise to creditor made as a part of the composition transaction and not disclosed to the other creditors, by which the former receives or expects to receive any advantage or benefit not conferred on the others, is, against public policy and void both at law and in equity, as a fraud on them, and if executory cannot be enforced; and if suit or action is brought thereon the debtor or promisor may defend by setting up the illegality of the agreement or promise, in spite of the rule that forbids a party to allege his own fraud as a ground of relief, since the agreement itself is against public policy and the parties are not regarded as in pari delicto." Even if it appeared from the record before us, and it does not, that appellees were entitled, by means of sequestration proceed to commence such proceedings, to reclaim the goods they sold to Conway & Duncan, we do not think the case would for that reason be without the general rule stated above. For it appears without dispute in the testimony that the agreement appellees relied on was a secret one by which they, as a consideration for accepting the composition, were to receive an advantage not conferred on other creditors who accepted it. The judgment will be reversed so far as it is in appellees' favor against Duncan, and judgment will be here rendered that appellees take nothing by their suit against him. CO. (No. 6305.) (Court of Civil Appeals of Texas. San Antonio. 1. MUNICIPAL CORPORATIONS 61-CITY RE- Appellees assert that their contention that their case is within an exception to the rule NEAL v. SAN ANTONIO WATER SUPPLY Duncan invokes is supported by Zavello v. Reeves, 227 U. S. 625, 33 Sup. Ct. 365, 57 L. Ed. 676, Ann. Cas. 1914D, 664. In that case the bankrupt borrowed of one of his creditors $500 to enable him to pay sums he had offered as a composition, and as a consideration for the loan agreed to pay that creditor the difference between the amount of his provable debt and the amount he received in the composition. A distinction between that case and this one which renders the former of no value here lies in the fact that in that one it did not appear that the agreement between the bankrupt and his creditor was a secret one unknown to the bankrupt's other creditors and to the court who confirmed the composition. That the court in that case did not have before it the question presented by the record in this one clearly appears from the opinion of the Supreme Court. It is the duty of municipal governments to furnish citizens with all such necessary utilities as water, lights, streets, and such other protection and benefit; but it may contract public conveniences as are necessary for their with some other person or corporation to perform that service for it. 2. WATERS AND WATER COURSES 195-WA- Water supply company under contract with city to furnish residents of city with water, giving the company the exclusive control of the repairing and installing of water service pipes and appurtenances, including curb cock box between mains and property lines, but providing that it should not be liable for damages not growing out of its own independent, unlawful acts, was not liable for injuries to pedestrian from curb cock box negligently installed by owner. "It is not contended," said that court, "that the record imports a secret or fraudulent agree ment between the bankrupt and the plaintiffs at the expense of other creditors. The state court construed the replications as not averring secrecy or fraud, saying (171 Ala. 408 [54 South. 654]): "That an advantage accrued to plaintiffs as the result of the loan is true; but that it came as the result of fraud, collusion, or extortion, cannot be read from these replications. On the contrary, the advantage, so far as the pleadings show, was the result of the advancement made by way of the loan described. There is nothing in the replications on which to rest Suit by H. B. Neal against the San Ana conclusion that anything other than the loan tonio Water Supply Company. Judgment for induced the promise relied on for recovery here.' defendant, and plaintiff brings error. AfThis construction of the pleadings is not dis-firmed. Error from District Court, Bexar County; S. G. Tayloe, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Lewright & Douglas, Chas. F. Guenther, Jr., [ and control thereof as aforesaid by the contract and W. M. Lewright, all of San Antonio, for ordinance entered into between the water complaintiff in error. pany and the city." Augustus McCloskey and Taliaferro, Cunningham & Birkhead, all of San Antonio, for defendant in error. The defendant in error answered by exceptions and general denial. The court peremptorily instructed a verCOBBS, J. This suit was instituted by dict in favor of the defendant in error. H. B. Neal, plaintiff in error, against the Plaintiff in error filed formal written obSan Antonio Water Supply Company, defend- jections to the giving of peremptory instrucant in error, to recover the sum of $25,000 tion, which were overruled, and judgment for personal injuries sustained by his wife; was rendered in favor of the defendant in also for $305, expenses incurred for phy-error on the instructed verdict of the jury. sicians, nurses, drugs, etc. The suit is based Plaintiff in error filed proper objections to upon injuries resulting from a fall, caused the rulings of the court and properly saved by a cut-off or curb cock box in the middle exceptions, and has presented this case beof the sidewalk in front of the premises at fore this court with proper assignments and No. 251 West Theo avenue, over which she propositions raising all the questions necestripped and fell while walking along said sary for a decision of this case. sidewalk, and without any fault of hers. Said obstruction protruded eight or nine inches above the surface of the ground. The defendant in error was engaged in supplying water to the inhabitants of the city of San Antonio, and the curb box over which petitioner fell had been installed in connection with the said water supply service between the property line and the curb line of the premises. Plaintiff alleges that the said curb box was installed for the exclusive use of the water supply company, not for the use of the consumer; that the water supply company, defendant in error, was operating under a water contract made with the city of San Antonio, giving it the exclusive control of all repairing, all installing of new water service pipes and appurtenances, and of the replacing of existing ones between the company's mains and the property line of consumers, including the curb cock and curb box between the mains and the property line. The special negligence was alleged in the following particulars: “(a) In permitting said curb cock box to be installed and maintained in the middle of the sidewalk and to protrude above the surface of the ground; and in this connection it is alleged that defendant was negligent in that its inspector allowed the said faulty installation, or said inspector was negligent if he failed to discover the defective installation, and defendant was likewise negligent in afterwards failing to discover the fact that said curb cock box had become more dangerous by the wearing away of the surrounding surface of the earth. "(b) That the water company was negligent in not detecting that said curb cock box was a dangerous obstruction in said sidewalk, since, as a matter of law, the duty devolved on said defendant to inspect this fixture which was placed in a public thoroughfare by the requirements of said company because it was placed for the use of said water company, primarily, if not exclusively, or at any rate for the joint use of the water company and the consumer; and, moreover, because since 1914 the water company was given the exclusive management We adopt so much of the statement of facts set out in plaintiff's brief as we think necessary for a disposition of the question: From June 12, 1902, until May 30, 1914, the waterworks company operated in the city of San Antonio under a contract ordinance giving it a right to use the streets, etc. About the year 1908, one B. F. Dittmar laid out and put on the market for one Priest the property fronting on West Theo avenue in the city of San Antonio. Under date of May 27, 1908, B. F. Dittmar applied to the water company for a 21⁄2-inch tap between South Flores and Lichen streets to supply a pipe running 1,379 feet on Theo avenue. Under date of January 18, 1909, B. F. Dittmar gave Edgar Gray a permit to tap the aforesaid private pipe line. In December, 1908, Edgar Gray built a He later home at 251 West Theo avenue. obtained a permit from the water company to tap their main and employed a firm of plumbers to install his service connections. A curb cock and curb box was installed about 36 inches from the property line, and it stuck up above the surface of the ground about two inches. At that time (in 1909) the water company required that a curb cock and curb box be placed in the service line between the curb and the property line. It was usually placed about six inches from the property line, but the company was not particular, so long as it was placed between the property line and the curb. The company would not tap the main for the service pipe unless this curb cock was installed, and their "tapper" saw to it that the curb cock was installed as required by the rules of the company. The water company continued to use the Dittmar pipe line as a part of their system, supplying water through it to customers for a profit. The water company furnished the tap for connecting Gray's service line to the Dittmar main, but Gray paid for the tap. The water (218 S.W.) company also made the tap; that is, installed it. Gray never paid Dittmar, nor Priest, nor any one except the water company, for the water service from the time it was installed. Neither Dittmer nor Priest ever did anything towards the maintenance, repair, or upkeep of the Dittmar pipe line on West Theo avenue from the time it was installed. Dittmar saw some leaks in the West Theo avenue main, and afterwards noticed they were repaired, and neither he nor Mr. Priest had anything to do with these repairs. Weierhauser, superintendent of the water company, testified that the cut-off at the water main in the street two feet underground, "is the only cut-off I felt the company was interested in until the new contract took effect." (This refers to the contract of March 30, 1914.) Edward Gray, the owner of the premises at 251 West Theo avenue, had the water service in question installed by Lightfoot & Teel, plumbers, in 1909, at his own expense. Plumber Lightfoot testified that he was familiar with the rules of the water company at that time. He said: "The consumer first sent to the waterworks office and made application for a 'tap' to the mains." He then got his plumber and laid his pipe under city regulations. The water company would send The ordinance contract between the water company and the city of San Antonio of date March 30, 1914, provides (in so far as is applicable to the facts of this case) as follows: (a) The water company agrees to furnish wa-out its "tapper" to connect the service pipe ter at its mains: To each individual consumer or property owner in said city, who shall have and maintain in good repair suitable and durable pipe connected with said mains, and service connections from said mains or pipes to the property line of such consumer or owner, with proper and accessible curb cocks and curb boxes. Where and when hereafter the present old service connections shall be out of repair between the second party's mains and the property line of the consumer or owner, they shall be replaced with new service connections, and such replacements shall be done by the water company at the expense of the consumer or owner of the property, who shall pay to the water company the full cost of labor and materials necessary to lay suitable and durable service pipes, with all proper and usual fittings, including curb cock and curb box, from such mains to said property line, together with the cost of city permit and of replacing street pavements and sidewalks; and all such service connections so laid by the water company replacing old service connections shall thereafter be the property of the water company and shall be kept in repair by the water company. (c) The water supply company shall in no event be responsible for damage to person or to property arising from defective or inadequate service connections or appurtenances, now owned or hereafter laid or owned by individuals. It shall be unlawful for any one, without the written consent of the water supply company, to bore or drill into any water main, or make attachments with them or with the service pipe connected to them. (i) Where any curb cock or curb box on any service existing at the date of this contract is out of repair, the water company may repair or supply the same at the expense of the owner of the premises or occupant. Mr. Gray testified: "I had an inside cut-off or stop and waste box inserted in the yard. This was put on in case of freeze so I could turn the water off and save the pipe from freezing and bursting, and turn it back on-put that on inside for my own use. I didn't have any individual use for the curb cock and box between the curb line and property line at the time it was put in. I don't know whether I had used that outside cut-off up to February, 1915, or not." thus laid to the water main. The water company required that a curb cock and curb cock box of a certain kind should be placed between the property line and the curb, and unless this was done the "tapper" would not give the connection with the main. Gray also had a cut-off on the inside of his premises, to use in case of freezing weather, etc. There was testimony that the water main tapped into for Gray was installed by one B. F. Dittmar, but the testimony is that the water company took over said privately laid main and used it as a part of its system. "The accident occurred on the 8th day of February, 1915, when H. B. Neal and his wife, Sallie, were walking along the sidewalk on West Theo avenue. Mrs. Neal stumbled upon and fell over a water plug in front of the premises at 251 West Theo avenue. The water plug (or curb box) protruded above the surface of the ground about nine inches at this time; at the time of its installation, it only protruded a short distance about two inches. The wear due to the weather and walking of people caused the earth to wear away from around the box. The curb cock box is in the sidewalk about 36 inches from the property line." Mrs. Neal testified: "I didn't know there was any water plug or anything there. I had never seen it before." The proof showed that the cut-off box was installed by Edgar Gray in front of his residence in January, 1909, and that the defendant in error had no main in Theo avenue; the mains being in Flores street. The pipe in Theo avenue was laid and owned by Dittmar, and persons, including Gray, had to get his consent to use it. The water company never sold water except at its main, and water consumers were required to arrange for their own pipes and connections to it. It was shown the water company made no claim to this pipe line and had nothing to do with its control or laying it; that property owners always installed the curb cock box. The contract with the city, as above, shows that while repairs "shall be done by the wa |