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(218 S.W.) worth $2,000 at the time said Pete Fulbright, Appeal from Bowie County Court; J. B. Sr., died. And they further found that the Lytal, Judge. life estate owned by the widow of the second

Suit by T. N. Griffin against C. F. Smith. marriage in said 200 acres was worth $1,450. From judgment for defendant, plaintiff apThe theory on which the trial court acted, peals. Reversed, and judgment rendered for it is assumed, was that the ownership of the

plaintiff. 200 acres at the death of Pete Fulbright, Sr., passed (subject to an estate for life in the

Dorough, Crumpton & Lincoln, of Texarwidow in one-third thereof, and to her right

kana, for appellant. to use all of it as a homestead while she

0. B. Pirkey, of New Boston, for appellee. lived), one-third to Mrs. Rutherford, onethird to H. E. Fulbright, and one-third to LEVY, J. The appellant brought the suit the minor, Pete Fulbright, afterward Mrs. to recover the value of two bales of cotton, Deaver, with a right in said minor, in a par- alleging the breach of a contract on the part. tition thereof between her and Mrs. Ruther of the appellee to hold and deliver the said ford and H. E. Fulbright, to have them ac cotton on appellant's demand therefor. The count for the value of the 175 acres at the defendant pleaded denial, and specifically time Pete Fulbright, Sr., conveyed same to that the cotton was left by the plaintiff on them. Vernon's Statutes, art. 2467. The the cotton platform of the defendant merely jury having found that the 175 acres was for the convenience of the plaintiff until he worth $2,000 at that time, that the 200 acres should see fit to remove same, and that the at the date of Pete Fulbright, Sr.'s, death defendant never at any time took charge or was worth a like sum, and that the value exercised any authority over the cotton. of the life estate' of the widow in the 200 The case was submitted to the jury on two acres was worth $1,450, the court concluded, certain issues, and judgment was entered it seems, that the value of the 200 acres, less for the defendant. Appellant predicates erthe value of the widow's life estate in a ror on the refusal of the court to give a part of it, and charged as it was with the peremptory instruction. The pleadings and right of the widow to use same as a home evidence present, we conclude, when properstead while she lived, was less than one-half ly considered, a case of ordinary bailment. the value of the 175 acres conveyed to Mrs. The appellee maintained a cotton platform Rutherford and H. E. Fulbright, and there for profit, charging 20 cents for storage and fore that they were not entitled to have any 10 cents for weighing cotton. The defendant part of the 200 acres set apart to them in kept an agent in charge of the platform, a partition. We think the conclusion the who did the weighing and accepted cotton court reached was warranted by the testi- from the public generally for storage. The mony in the case.

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.

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 GRIFFIN V. SMITH. (No. 2187.)

587 pounds, and on October 4, 1918, he left

another bale with the defendant, weighing (Court of Civil Appeals of Texas. Texarkana. 500 pounds; both of said bales being acDec. 16, 1919. Rehearing Denied

cepted by defendant's agent for storage, to Jan. 8, 1920.)

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: CALLED FOR. Where plaintiff left two bales of cotton

"Hooks, Texas, 10-4-1918. with defendant, the bales being accepted by de

“Received of Williams & Griffin, for account fendant's agent for storage to be held until of T. N. Griffin:

“Bales of Cotton. plaintiff should call for them, alleged to have been received only for plaintiff's convenience,

No. Weight. Price

$34.65 2

500 Less weighing. and receipt stating it was not a public ware

10¢

Unload house, a bailment resulted, requiring defend

10¢ ant to exercise ordinary care to hold and return

.Net

$. the cotton.

.Net

$.

"C. F. Smith, Weigher, 2. BAILMENT 31(3) EVIDENCE SHOWING

"Per B. L. G. BBEACH OF DUTY TO HOLD AND RETURN. "Not a public warehouse receipt. Evidence held to show conclusively a breach

"Buyer: T. N. Griffin.

0. K." of defendant's duty as bailee of cotton to hold the bales for plaintiff as agreed, and to return

On or about the 24th of December, 1918, them on demand.

the plaintiff, having sold these two bales of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 218 S.W.-3

ED ON DELIVERY OF COTTON TO HOLD UNTIL

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 the firm of Conway & Duncan. Judgment time plaintiff had nine bales of cotton in for plaintiff, and defendant Duncan appeals. storage there. The agent delivered to the Reversed and rendered. plaintiff seven bales, but did not deliver to him the two bales of cotton in controversy.

Moore & Hardison, of Paris, for appellant. The agent and the plaintiff made a careful

J. S. Patrick, of Paris, for appellees. search over the yard for the two bales of cotton above mentioned, but they could not WILLSON, C. J. At the time, to wit, Nobe found. The defendant testified as fol-, vember 20, 1915, J. T. Conway and W. P. lows:

Duncan, composing the firm of Conway & "There are now two bales of cotton on the Duncan, merchants, were adjudged to be platform that I do not know who they belong bankrupts, on a petition against them filed to. I do not know what became of Mr. Griffin's November 6, 1915, they were indebted to apcotton, and I do not know whose cotton that pellees on account for merchandise shipped is now on the platform. I know Mr. Griffin's to them October 9, 1915, in the sum of cotton is not there now."

$370.20. Pending action on an offer by said [1, 2] The price that these two bales had Conway & Duncan to their creditors of 3343 sold for on the day of the demand was 31 per cent of the amount of their respective cents per pound; and the plaintiff, having

claims as a composition, appellees threatened been paid this amount, returned it to the

to commence and prosecute sequestration buyer after the two bales of cotton could proceedings for the recovery of the goods not be found. There was no controversy

they had shipped to Conway & Duncan. The over the value of the two bales of cotton, latter, fearing the commencement of such the only proof being that it was worth 31 proceedings would cause other creditors to cents per pound and was of the total value reject the composition offered, agreed with of $336.97. The legal effect of these facts appellees, if they would not begin such a is to show a bailment requiring the exercise

suit but would instead accept the composiof ordinary care on the part of the appellee tion, to pay them the difference between the to hold and return the two bales of cotton, sum they received by participating therein and the evidence conclusively shows a breach and said sum of $370.20. Afterward, same of that duty. 2 Cooley on Torts (3d Ed.) p.

having been accepted by the creditors con1322; Prince v. Ry. Co., 64 Tex. 144; cerned, the composition was confirmed by Browne v. Johnson, 29 Tex. 40; Fraam v.

the court, and thereupon appellees were paid G. R. & Ind. R. R. Co., 161 Mich. 556, 126 the amount they were entitled to by the N. W. 851, 29 L. R. A. (N. S.) 834, 21 Ann. terms thereof, to wit, $123.40. None of the

other creditors at the times they respectively Cas. 96.

The judgment is reversed, and a judgment accepted the composition, nor the court at is here rendered in favor of the appellant

the time he approved same, knew anything for the sum of $336.97 and for costs of the about appellee's claim of a right to recover trial courts and of this court.

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 Con

way and said Duncan individually and as CONWAY_& DUNCAN v. F. P. KIRKEN-partners, appellees commenced this suit DALL & CO. (No. 2176.)

against them, seeking thereby to recover

$206.80 as the difference between the amount (Court of Civil Appeals of Texas. Texarkana. they recovered in said composition and $10 Nov. 20, 1919.)

additional paid to them by Conway & Dun

can, and the amount of their said claim for CONTRACTS Omw113(2) SECRET COMPOSITION $370.20. The appeal is by Duncan alone AGREEMENT WITH CREDITOR VOID.

from a judgment in appellees' favor for the An agreement by a bankrupt with a creditor sum they sued for against him, said Conto pay the entire amount due the creditor in way, and said firm of Conway & Duncan. consideration that such creditor should not seek Duncan insists that the effect of the confirby sequestration proceedings to recover goods mation by the bankrupt court of the comsold to the bankrupt by such creditor, but should accept a composition offer, was illegal and position offered by his firm, and of the order void, where the other creditors had no knowl- of said court discharging him, was to reedge thereof, and recovery could not be subse-lease him from the liability appellees sought quently bad from the bankrupt for the balance. by their suit to establish against him. Ap

pellees 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

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 se that 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 con

an agreement is avowedly based." tertion, Duncan by his pleadings in the court below insisted, and insists here, that the Even if it appeared from the record before agreement appellees relied upon was illegal us, and it does not, that appellees were enand therefore void. The rule he invokes as titled, by means of sequestration proceedapplicable to the case is stated in 12 C. J. ings commenced at the time they threatened 287, where many authorities are cited, as to commence such proceedings, to reclaim follows:

the goods they sold to Conway & Duncan, we “Any agreement with or promise to creditor do not think the case would for that reason made as a part of the composition transaction be without the general rule stated above. and not disclosed to the other creditors, by For it appears without dispute in the testiwhich the former receives or expects to recerve mony that the agreement appellees relied on any advantage or benefit not conferred on the was a secret one by which they, as a consid. others, is against public policy and void both at eration for accepting the composition, were law and in equity, as a fraud on them, and if to receive an advantage not conferred on executory cannot be enforced; and if suit or

other creditors who accepted it. action is brought thereon the debtor or promisor may defend by setting up the illegality of

The judgment will be reversed so far as it the agreement or promise, in spite of the rule is in appellees' favor against Duncan, and that forbids a party to allege his own fraud as judgment will be here rendered that appela ground of relief, since the agreement itself lees take nothing by their suit against him. is against public policy and the parties are not regarded as in pari delicto."

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.

CO. (No. 6305.)
Reeves, 227 U. S. 625, 33 Sup. Ct. 365, 57
L. Ed. 676, Ann. Cas. 1914D, 664. In that case

(Court of Civil Appeals of Texas. San Antonio. the bankrupt borrowed of one of his creditors

Dec. 31, 1919. Rehearing Denied

Feb. 4, 1920.) $500 to enable him to pay sums he had offered as a composition, and as a considera- 1. MUNICIPAL CORPORATIONS Om61-CITY REtion for the loan agreed to pay that creditor QUIRED TO FURNISH RESIDENTS WITH WATER, the difference between the amount of his LIGHTS, STREETS, ETC. provable debt and the amount he received in It is the duty of municipal governments to the composition. A distinction between that

furnish citizens with all such necessary utilicase and this one which renders the former ties as water, lights, streets, and such other of no value here lies in the fact that in that public conveniences as are necessary for their

protection and benefit; but it may contract one it did not appear that the agreement with some other person or corporation to perbetween the bankrupt and his creditor was form that service for it. a secret one unknown to the bankrupt's other creditors and to the court who confirmed 2. WATERS AND WATER COURSES Ow195—WAthe composition. That the court in that case

FROM CURB COCK BOX IN SIDEWALK NEGLIdid not have before it the question present GENTLY INSTALLED BY OWNER. ed by the record in this one clearly appears Water supply company under contract with from the opinion of the Supreme Court.

city to furnish residents of city with water, giv"It is not contended,” said that court, “that ing the company the exclusive control of the the record imports a secret or fraudulent agree repairing and installing of water service pipes ment between the bankrupt and the plaintiffs at and appurtenances, including curb cock box bethe expense of other creditors. The state court tween mains and property lines, but providing construed the replications as not averring secre- that it should not be liable for damages not cy or fraud, saying (171 Ala. 408 [54 South. growing out of its own independent, unlawful 654]): "That an advantage accrued to plaintiffs acts, was not liable for injuries to pedestrian as the result of the loan is true; but that it from curb cock box negligently installed by came as the result of fraud, collusion, or extortion, cannot be read from these replications. On the contrary, the advantage, so far as the Error from District Court, Bexar County; pleadings show, was the result of the advance- S. G. Tayloe, Judge. ment 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.

TER

COMPANY

NOT

LIABLE

FOR

INJURIES

owner.

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, Cun. ningham & Birkhead, all of San Antonio, for

The defendant in error answered by exdefendant in error.

ceptions 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.

We adopt so much of the statement of Said obstruction protruded eight or nine facts set out in plaintiff's brief as we think inches above the surface of the ground. necessary for a disposition of the question:

The defendant in error was engaged in From June 12, 1902, until May 30, 1914, supplying water to the inhabitants of the the waterworks company operated in the city city of San Antonio, and the curb box over of San Antonio under a contract ordinance which petitioner fell had been installed in giving it a right to use the streets, etc. connection with the said water supply serv

About the year 1908, one B. F. Dittmar ice between the property line and the curb laid out and put on the market for one line of the premises. Plaintiff alleges that Priest the property fronting on West Theo the said curb box was installed for the ex-avenue in the city of San Antonio. clusive use of the water supply company,

Under date of May 27, 1908, B. F. Dittmar not for the use of the consumer; that the applied to the water company for a 212-inch water supply company, defendant in error, tap between South Flores and Lichen streets was operating under a water contract made to supply a pipe running 1,379 feet on Theo with the city of San Antonio, giving it the avenue. exclusive control of all repairing, all install

Under date of January 18, 1909, B. F. ing of new water service pipes and appur- Dittmar gave Edgar Gray a permit to tap tenances, and of the replacing of existing the aforesaid private pipe line. ones between the company's mains and the

In December, 1908, Edgar Gray built a property line of consumers, including the home at 251 West Theo avenue. He later curb cock and curb box between the mains obtained a permit from the water company to and the property line.

tap their main and employed a firm of The special negligence was alleged in the plumbers to install his service connections. following particulars:

A curb cock and curb box was installed about “(a) In permitting said curb cock box to be

36 inches from the property line, and it installed and maintained in the middle of the stuck up above the surface of the ground sidewalk and to protrude above the surface of about two inches. the ground; and in this connection it is alleged

At that time (in 1909) the water company that defendant was negligent in that its inspec- required that a curb cock and curb box be tor allowed the said faulty installation, or said placed in the service line between the curb inspector was negligent if he failed to discover and the property line. It was usually placed the defective installation, and defendant was about six inches from the property line, but likewise negligent in afterwards failing to dis- the company was not particular, so long as cover the fact that said curb cock box had become more dangerous by the wearing away of it was placed between the property line and the surrounding surface of the earth.

the curb. The company would not tap the "(b) That the water company was negligent main for the service pipe unless this curb in not detecting that said curb cock box was a cock was installed, and their “tapper" saw to dangerous obstruction in said sidewalk, since, it that the curb cock was installed as reas a matter of law, the duty devolved on said quired by the rules of the company. defendant to inspect this fixture which was

The water company continued to use the placed in a public thoroughfare by the require, Dittmar pipe line as a part of their system, ments of said company because it was placed supplying water through it to customers for for the use of said water company, primarily, if not exclusively, or at any rate for the joint

a profit. use of the water company and the consumer;

The water company furnished the tap for and, moreover, because since 1914 the water connecting Gray's service line to the Dittmar company was given the exclusive management main, but Gray paid for the tap. The water

(218 S.W.) company also made the tap; that is, in Weierhauser, superintendent of the water stalled it.

company, testified that the cut-off at the Gray never paid Dittmar, nor Priest, nor water main in the street two feet underany one except the water company, for the ground, "is the only cut-off I felt the comwater service from the time it was installed. pany was interested in until the new contract

Neither Dittmer nor Priest ever did any- took effect.” (This refers to the contract of thing towards the maintenance, repair, or March 30, 1914.) upkeep of the Dittmar pipe line on West Edward Gray, the owner of the premises Theo avenue from the time it was installed. at 251 West Theo avenue, had the water Dittmar saw some leaks in the West Theo service in question installed by Lightfoot & avenue main, and afterwards noticed they Teel, plumbers, in 1909, at his own expense. were repaired, and neither he nor Mr. Priest Plumber Lightfoot testified that he was fahad anything to do with these repairs. miliar with the rules of the water company

The ordinance contract between the water at that time. He said: “The consumer first company and the city of San Antonio of sent to the waterworks office and made apdate March 30, 1914, provides (in so far as plication for a 'tap' to the mains." He then is applicable to the facts of this case) as got his plumber and laid his pipe under city follows:

regulations. The water company would send (a) The water company agrees to furnish wa- out its “tapper" to connect the service pipe ter at its mains: To each individual consumer thus laid to the water main. The water or property owner in said city, who shall have company required that a curb cock and curb and maintain in good repair suitable and dur-cock box of a certain kind should be placed able pipe connected with said mains, and serv- between the property line and the curb, and ice connections from said mains or pipes to the unless this was done the "tapper" would not property line of such consumer or owner, with give the connection with the main. proper and accessible curb cocks and curb boxes. Where and when hereafter the present old

Gray also had a cut-off on the inside of service connections shall be out of repair be his premises, to use in case of freezing tween the second party's mains and the prop- weather, etc. There was testimony that the erty line of the consumer or owner, they shall water main tapped into for Gray was inbe replaced with new service connections, and stalled by one B. F. Dittmar, but the testisuch replacements shall be done by the water mony is that the water company took over company at the expense of the consumer or said privately laid main and used it as a part owner of the property, who shall pay to the of its system. water company the full cost of labor and materials necessary to lay suitable and durable "The accident occurred on the 8th day of service pipes, with all proper and usual fittings, February, 1915, when H. B. Neal and his wife, including curb cock and curb box, from such Sallie, were walking along the sidewalk on West mains to said property line, together with the Theo avenue. Mrs. Neal stumbled upon and fell cost of city permit and of replacing street pave- over a water plug in front of the premises at ments and sidewalks; and all such service con- 251 West Theo avenue. The water plug (or nections so laid by the water company replac- curb box) protruded above the surface of the ing old service connections shall thereafter be ground about nine inches at this time; at the the property of the water company and shall be time of its installation, it only protruded a short kept in repair by the water company.

distance about two inches. The wear due to (c) The water supply company shall in no the weather and walking of people caused the event be responsible for damage to person or to earth to wear away from around the box. The property arising from defective or inadequate curb cock box is in the sidewalk about 36 inchservice connections or appurtenances, now own es from the property line." ed or hereafter laid or owned by individuals.

It shall be unlawful for any one, without the Mrs. Neal testified: "I didn't know there written consent of the water supply company, was any water plug or anything there. I to bore or drill into any water main, or make at- had never seen it before.” The proof showed tachments with them or with the service pipe that the cut-off box was installed by Edgar connected to them. (i) Where any curb cock or curb box on any 1909, and that the defendant in error had no

Gray in front of his residence in January, service existing at the date of this contract is out of repair, the water company may repair main in Theo avenue; the mains being in or supply the same at the expense of the owner Flores street. The pipe in Theo avenue was of the premises or occupant.

laid and owned by Dittmar, and persons, in

cluding Gray, had to get his consent to Mr. Gray testified:

use it. The water company never sold wa"I had an inside cut-off or stop and waste box ter except at its main, and water consumers inserted in the yard. This was put on in case were required to arrange for their own pipes of freeze so I could turn the water off and save and connections to it. It was shown the the pipe from freezing and bursting, and turn water company made no claim to this pipe it back on-put that on inside for my own use. I didn't have any individual use for the curb line and had nothing to do with its control cock and box between the curb line and property or laying it; that property owners always line at the time it was put in. I don't know installed the curb cock box. whether I had used that outside cut-off up to The contract with the city, as above, shows February, 1915, or not."

that while repairs "shall be done by the wa

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