(218 S.W.) As basis for this contention, appellant also alleged that at the same session of the Legislature and prior to the passage of the act above set out, another bill, called House Bill No. 21, was "killed," by which expression we assume it was intended to allege that said house bill had been considered and defeated, and we will so consider it. It was also alleged that said House Bill No. 21 was as follows: "That article 7059 of chapter 3, title 121, of the Revised Civil Statutes of the state of Texas, for 1911, be and the same is hereby amended so as to hereafter read as follows: Article 7059: The judges of the district courts of this state shall each receive a salary of $3,600.00 a year." And appellant further alleged that this defeated bill was the same in substance as that part of the enacted bill which relates to the salary of district judges. And also the following indorsement: "Received in the Executive Office, this 27th day of February, 1919, at three o'clock and fifteen minutes p. m. M. Edmondson, Assistant Private Secretary." And also the following indorsement: "Approved, March 3rd, 1919. W. P. Hobby, Governor." And also the following indorsement: "Received in Department of State this 4th day of March, 1919, at 5 o'clock and 15 minutes, p. m. C. D. Mims, Acting Secretary of State. [Seal.]" The petition does not allege that the Senate did not concur in the House amendment to the bill, nor does the petition state that the bill was not actually authenticated and deposited with the secretary of state, as required by the Constitution. The Hon. V. L. Brooks, special district judge, sustained a general demurrer to the plaintiff's petition, and ordered same dismissed, holding that it stated nothing which invoked the jurisdiction of the court. Appellant also alleged that the entire act is void, because a certified copy shows that the bill passed the Senate February 11, 1919, by a viva voce vote, and that the bill was amended in the House on February 20, 1919, and, further, that such copy shows that Senate Bill No. 32 passed the House of Representa tives February 26, 1919, by a vote of 76 yeas and 48 noes, but that it does not show that [2] It is claimed by appellee that the differsaid amendment was concurred in by the Sen-ence of $400 in the amount of salary to be ate, and he relies upon section 14, article 4, of the Constitution of the state of Texas, which reads as follows: "Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval," etc. [1] Plaintiff's petition, while it refers to a certified copy of the enacted law, does not have such copy attached, and his petition does not further state what such copy shows, but the defendant, appellee in this court, attached to his answer a certified copy of the enacted law, which we think can be considered in connection with and in aid of appellant's petition. Lyon v. Logan, 68 Tex. 524, 5 S. W. 72, 2 Am. St. Rep. 511; Maryland Casualty Co. v. Hudgins, 97 Tex. 128, 76 S. W. 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252. This copy of the bill shows that it was signed by the president of the Senate and the Speaker of the House, and bears the following indorsement: "Senate Bill No. 32 passed the Senate February 11th, 1919, by viva voce vote. W. E. Conn, Secretary of the Senate." And also the following indorsement: "SB No. 32 Amended in the House February 20th, 1919." And also the following indorsement: "Senate Bill No. 32, passed the House of Representatives February 26th, 1919, by a vote of 76 yeas and 48 noes, T. B. Rees, Chief Clerk House of Representatives." The appellant has appealed to this court, and by appropriate assignments of error challenges the action of the district judge. paid makes the two bills of different substance within the meaning of the Constitution. If there had been only a difference of $1 or $10, or other unsubstantial amount, we think the two bills would have been of the same substance. Without stating what the members of this court think about the alleged difference of $400, it may be conceded, for purposes of this opinion, that this raises a question about which there might arise a genuine cleavage of opinion in the minds of reasonable men; but if this difference of $400 is such as to cause a reasonable divergence of view, then, clearly, if the members of the Legislature thought the two bills were not of the same substance, the courts ought not to interfere, even if in any event they have jurisdiction to do so. We might content ourselves with this view of the case by proceeding no further, but on account of the insistence of appellant we have concluded to briefly discuss the case upon the hypothesis that plaintiff's petition upon its face discloses two bills of the same substance, and if so, it must be conceded that the case of Brewer v. Huntingdon, 86 Tenn. 732, 9 S. W. 166, by the Supreme Court of Tennessee, fully sustains appellant's contention; and it would appear that he is also sustained by the reasoning in the Texas case of Manor Casino v. State, 34 S. W. 769. But this case is clearly opposed by the later cases of Presidio County v. City National Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069, and State v. Larkin, 41 Tex. Civ. App. 253, 90 S. W. 912, and several other Texas cases. In view of the fact that the Supreme Court (stantially the same testimony, could honestly refused a writ of error in each of the two come to a contrary conclusion. With even cases last mentioned, we think we are justi- such a possibility confronting us, we think fied in assuming that the latter court ap- it better to adhere to the long-honored rule proved the conclusions of the Courts of Civil laid down by the English courts in passing Appeals found in those cases, and we are upon acts of Parliament, and which rule has wholly unable to distinguish in principle the found an enduring place in our own judicial reasoning and conclusions found in those structure. Williams v. Taylor, 83 Tex. 667, cases from the claim of appellee in the instant 19 S. W. 156. Under the authority of that case that the courts are powerless to inquire case alone, we would feel constrained to rule into this question. against appellant. [3] Appellee argues that the Legislature has found as a fact that the two bills were not the same in substance, and, as above indicated, we are of the opinion that the Legislature was justified in so finding; but if it should be conceded that the petition shows two bills of the same substance, then we think, when it is conceded that the Legislature was lawfully in session and has the inherent right to legislate upon the question of fixing the salaries of the judges, the courts should and will presume that the Legislature, having this general power to enact the law, had not previously incapacitated itself from so doing, and they will not suffer this pre sumption to be rebutted. In connection with this subject, it will here be appropriate to consider appellant's contention that the entire act is void, because it appears that the original Senate Bill was amended in the House, and it does not appear that the Senate concurred in this amendment. The cases bearing upon both sides of this proposition are collected in an elaborate note appended to the case of A., T. & S. F. Ry. Co. V. State, 40 L. R. A. (N. S.) 1, and material can there be gathered for an endless legal controversy. It would be an idle and fruitless task to attempt to review the many and conflicting decisions, and we will content ourselves with a brief quotation from only following from the case of Evans v. Browne, one case outside of our own jurisdiction. The 30 Ind. 514, 95 Am. Dec. 710, is so singularly appropriate that we will embody it in this opinion. It was there said: roll is conclusive upon the courts, then less We think the true and correct rule is that in passing upon the validity of a legislative act the courts should inspect the completed work and deal with it alone, and, if this is found to meet the constitutional requirements, they are not permitted to inquire whether the legislative workmen in the processes of their labors assembled imperfect material, employed defective tools, or worked during forbidden hours. [4] As the act appears to be duly authen-haps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit ticated according to required standards, the that the judiciary should claim for itself a power to ascertain and decide whether the purity beyond others; nor has it been able at constitutional demands have been complied all times with truth to say that its high places with should be vested in the Legislature it- have not been disgraced. The framers of our self; and, when it appears that the authenti- government have not constituted it with the .cation and promulgation of the Legislative faculties to supervise our co-ordinate departdepartment has been in conformity to the ments and correct or prevent abuses of their authority." Constitution, the great weight of modern authority, as we think, is to the effect that the courts will not permit any further inquiry into the matter. Any other rule would invite intolerable results. If the legislative journals are to be invoked to overturn the authenticated statute, whether the journals themselves speak the truth at once becomes a pertinent inquiry. Charges that the original journal entries are incorrect, through error or honest mistake, would multiply, to say nothing of charges that the original entries themselves had been falsified or changed. Upon such issues there would be brought, not only the fallibility of human memory, but the sinister testimony of the designing and corrupt. Who would pass upon these issues? A judge, or a judge aided by a jury, in the ascertainment of the facts from which a proper legal conclusion is to be drawn. Amid such surroundings, a judge, thus aided, could very conscientiously in one case conclude that a statute had not been properly passed, and another judge in another case, weighing sub Courts in various jurisdictions have written much upon this subject, but ever since the cases of Pangborn v. Young, 32 N. J. Law, 29, and Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294, were delivered, most of what has been said has been commentary upon the reasoning found in those cases. [5] If we felt inclined to do otherwise, which we do not, we would feel constrained to affirm the action of the trial court upon the authority of the case of Williams v. Taylor alone; and if we were in doubt about the (218 S.W.) correctness of our conclusion, it would be the latter. both our duty and pleasure to uphold the law. It would be our duty because statutes should not be annulled by the courts merely because doubts may be suggested as to their constitutionality, and in this case we are not in doubt. It would be our pleasure, because the particular piece of legislation under review, if it does not do full justice to an underpaid judiciary, is at least a commendable effort to do so. Dowell testified, in substance, that he resided at Mineola, and was engaged in the real estate business. In April, 1917, Browning listed with him a farm situated near Garden Valley in Smith county. Frequently thereafter Browning was in his office, and talked with him regarding the farm, and insisting that a sale be made; that Browning never at any time took the farm out of his hands. Some time in January, 1918, W. H. Williamson applied to the ap The judgment of the court below is af- pellee to purchase a farm. Appellee, after firmed. Affirmed. SPELL, Special Chief Justice, and MAHAFFEY, Special Associate Justice: We fully concur in the foregoing opinion. BROWNING v. DOWELL. (No. 2172.) 1. BROKERS 40-COMMISSIONS CANNOT BE BY DEFENDANT. A real estate broker is not entitled to commission as an agent, unless he has been employed as such by the person against whom the commission is claimed, 2. BROKERS 40. EVIDENCE INSUFFICIENT TO SHOW THAT BROKER WAS RE-EMPLOYED TO SELL DEFENDANT'S FARM. showing him farms near Mineola, carried him to Garden Valley to see the Harper place. While on the way he told Williamson about Browning's farm, and stated that it could be purchased for $6,000. When they arrived at Garden Valley they went into a store and there found Browning. Williamson and Browning were introduced by the appellee, who then asked Browning if his farm was still for sale. The latter replied that it was. Appellee then said to Browning, "I am taking Mr. Williamson to look at the Harper farm, and if it does not suit him I will bring him back to look at his (Browning's) farm." Browning said, "Bring him on." Appellee then carried Williamson to examine the Harper farm. He then brought him on to Browning's farm, and Williamson and Browning inspected the land. Witness further testified: "Soon after arriving home, Browning called me to one side and says, 'We have traded,' and asked me about the commission. I told him my commission would be 5 per cent. Browning said he would not pay the commission, but Where defendant had listed his farm with would give me $10. I refused to accept same. plaintiff, a broker, for sale, but had subsequent- Later on, while we were there, Browning offered ly withdrawn it, that the broker thereafter met me $25, which I also refused. Later on, while defendant while showing another farm to a cus-Browning and Williamson were talking there in tomer, introduced the customer to defendant, the yard, I went up to them and stated to stating that if the farm he was about to show them, 'If you men trade, I demand my com did not suit him he would show him defendant's farm, the broker having asked defendant if his farm was still for sale, defendant replying in the affirmative and telling plaintiff to "bring him on," such facts were not sufficient to sus tain a finding that he was re-employed; defendant having sold his farm to such customer following the conversation. mission.' The trade was concluded between Brown ing and Williamson, but Browning refused to pay the commission claimed. Browning testified that he had placed his land in the hands of the appellee for sale, but had later withdrawn it. He had no further commu Appeal from Smith County Court; W. R. nication with the appellee until in January, Castle, Judge. Action by J. D. Dowell against B. M. Browning. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Johnson & Edwards, of Tyler, for appel 1918, when they met at Garden Valley accidentally. Dowell at that meeting said to Williamson, "Mr. Browning here has a fine place that might suit you," and then asked him (Browning) if he would sell his place, to which he (Browning) replied, "Yes; I will sell any thing I have if I can get my price." Simpson, Lasseter & Gentry, of Tyler, and Williamson then stated that they were goE. A. Tharp, of Mineola, for appellee. lant. HODGES, J. Dowell, the appellee, sued and recovered a judgment against Browning, the appellant, for $300, claimed as commissions for selling a tract of land belonging to ing to look at another place, and if that did not suit they would return and look at Browning's place. Later in the day they did return. Dowell and the driver went into the house to a fire, and he and Williamson inspected the farm. They had about agreed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rence. on a trade for a consideration of $6,000 when | jectionable as hearsay, as it could not reasonahe (Browning) went into the house where bly be thought that the trial court gave such Dowell was and told him they had about testimony any other probative force than that agreed, but before trading he wanted it un"witness was not present" at the alleged occurderstood that he was not to pay any commission on the sale. The appellee agreed to this, and stated that he would not expect any commission. The trade was then closed. The court submitted a general charge to the jury, and the following special charge, which is complained of: "If you believe that the conversation of Dowell and Browning, if any, their conduct, if any, and the circumstances of the transaction show that Browning knew that the services of Dowell were offered for his benefit and were to be employed in his behalf and were being offered by Dowell with the expectation of receiving the usual commission for them, the acceptance by said Browning of such services will imply an agreement for the employment of the said Dowell and to pay him the usual commission therefor; and, if you so find, you will find for the plaintiff in the sum of $300." [1, 2] This charge was objected to upon several grounds. We think, when applied to the facts of this case, it was misleading. Dowell is not entitled to a commission as an agent unless he had been employed as an agent by Browning. Under the evidence the jury might have found that the property had been taken out of the hands of Dowell some time before this transaction occurred, thus terminating his contract of employment. If that be true, the facts, even as detailed by Dowell himself, are insufficient to sustain a finding that he was re-employed on the day the sale to Williamson took place. Dunn v. Price, 87 Tex. 318, 28 S. W. 681. The appellee could not place the appellant, without his consent, in a position where the latter would not be free to sell his land to any prospective purchaser willing to buy upon his terms. If the agency of Dowell had previously been terminated, as claimed by Browning, what the former thereafter did in promoting the sale was purely voluntary. The mere fact that Browning was enabled to sell his land by reason of the services of Dowell was not sufficient to create the relation of principal and agent. We think the case should be reversed, and the cause remanded; and it is accordingly so ordered. (No. 2160.) DALBY v. WALL. (Court of Civil Appeals of Texas. Texarkana. Nov. 6, 1919.) EVIDENCE 314(1)-NOT ERRONEOUSLY AD MITTED AS HEARSAY. Testimony of a witness, "I was not present when the note was transferred from D.'s attorney to Mrs. W. through G.," held not ob Appeal from District Court, Upshur County; J. R. Warren, Judge. Suit by J. W. Wall against A. L. Dalby. Judgment for plaintiff, and defendant appeals. Affirmed. T. H. Briggs and Stephens & Sanders, all of Gilmer, for appellant. G. L. Florence, of Gilmer, and Simpson, Lasseter & Gentry, of Tyler, for appellee. in trespass to try title and for partition of LEVY, J. The appellee brought this suit 100 acres of land of the John Lowery headright. The trial was before the court without a jury, and the judgment awarded the plaintiff and the defendant each 50 acres of the land, charging the appellant's portion of the land with a lien in favor of the appellee for $67.50. Partition was also decreed. It appears from the record that the appellant, as owner, conveyed the 100 acres of land to J. L. Goodwin, and as a part of the consideration executed two vendor's lien notes each for the sum of $500. Mrs. M. E. White, as holder and owner of the first one of the notes, brought suit and obtained a judgment of foreclosure of the lien. Appellee contended in the trial that he purchased the land in controversy at sheriff's sale under the above judgment, and had a sheriff's deed to him therefor. The appellant claimed title by reason of a reconveyance of the land from J. L. Goodwin in satisfaction of the second vendor's lien note. There is no complaint on appeal respecting the judgment or the evidence. The assignments are predicated upon errors as to admission and rejection of evidence. The witness Goodwin testified as follows: "I was not present when the note was transferred from Dalby's attorney to Mrs. White through George Wright." The objection made to that answer is that it assumes that the note was transferred to Mrs. White, and was hearsay. It is thought that the words "when the note was transferred from Dalby's attorney to Mrs. White through George Wright" were intended to be used by the witness only to identify the supposed occurrence at which he "was not present." It is reasonably thought that the trial court so understood the answer of the witness, and gave it only that probative force that the witness "was not present" at the alleged occurrence. Assignment of error No. 1 is overruled. The second, third, and fourth. assignments predicate error upon the admission of evidence. It is thought that the trial For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) court did not err in admitting the evidence complained of, and that he gave the answers of the witnesses the proper probative force. The witnesses intended only to state particular facts within their personal knowledge, and not to give their opinion in reference thereto. The fifth assignment is based upon the particular statements of the witness Wright as to the transaction relative to the purchase of the note by him for Mrs. White. The witness was intending to state only the particular facts concerning the transaction. It is concluded that the assignment should be overruled. The sixth and seventh assignments of error do not, it is concluded, present reversible error. The judgment is affirmed. STAMPS v. PLATT et al. (No. 1045.) (Court of Civil Appeals of Texas. El Paso. Jan. 22, 1920.) 1. BILLS AND NOTES 132 CONDITION OF CLEARING TITLE TO PREVENT MATURITY OF NOTE. Where note given to purchaser by vendor and another, to guarantee vendor's completing title, provided for maturity a year from date, and provided that, "if title is cleared on or before" such due date, "this note becomes null and void, otherwise it shall remain in full force and effect," the fact that there was on such due date a suit pending at vendor's expense to clear the title did not prevent the note from maturing at such date, for the only way to avoid its payment in money at maturity was for the vendor to clear the title before the note's due date. 2. EVIDENCE 448 WHERE NOT AMBIGUOUS, NOTE NOT VARIABLE BY PAROL. Where a note sued on is not ambiguous, it cannot be varied by parol evidence. 3. GUARANTY 47-NOTE GUARANTEEING TITLE MATURED WHERE TITLE NOT CLEARED, NOTWITHSTANDING PENDING ACTION TO CLEAR TITLE. Where a note given to purchaser by vendor and another, to guarantee vendor's completing title, provided for maturity a year from date, and provided that, "if title is cleared on or before" such due date, "this note becomes null and void, otherwise it shall remain in full force and effect," if such note be deemed a contract of guaranty, it matured at its due date, where title had not then been cleared, although there was then pending an action to clear title by the vendor. Appeal from Freestone County Court; G. W. Fryer, Judge. Suit by A. D. Stamps against T. W. Platt and another. Judgment for defendants, and plaintiff appeals. Reversed and rendered for plaintiff. A. B. Geppert, of Teague, for appellant. HARPER, C. J. A. D. Stamp brought this suit against T. W. Platt and W. D. Anderson upon the following instrument in writing: "[Revenue Stamp.] "Streetman, Texas, May 17, 1915. "May 17, 1916, after date, without grace, for value received, I, we, or either of us promise to pay to A. D. Stamps, at Streetman, Texas, three hundred and thirty-eight dollars and eighty-five cents, with interest at the rate of ten per cent. per annum from date, until paid and ten per cent. additional on amount of principal and interest unpaid as attorney's fees, if placed in the hands of an attorney for collection. This note is given as a guaranty to A. D. Stamps that T. W. Platt will clear title on one hundred and twenty acres of Bishop & Platt survey conveyed to A. D. Stamps by T. W. Platt and wife dated September 8, 1915. "If title is cleared on or before May 17, 1916, this note becomes null and void; otherwise, it shall remain in full force and effect. "T. W. Platt. For explanation of its provisions, etc., plaintiff alleged: "That prior to the execution of the note defendant Platt sold plaintiff two tracts of land by deed of warranty; that because of defect in title plaintiff refused to accept the deed; that to induce plaintiff to accept it, Platt executed his note for $315, payable to plaintiff, secured by a deed of trust in 75 acres of land. Thereafter Platt sold this land to one Norman; that to adjust matters amicably the note sued on was executed; that the title to the lands has not been cleared as provided in the note, nor has plaintiff secured possession." Defendants answer by general demurrer, general denial, and specially answer: That "the instrument sued on it not a promissory note, nor was it intended as such, but was executed in the nature of a bond to clear title to certain lands, and that time is not the essence thereof." Further that the title to the lands is clear; that a good and merchantable title was conveyed to plaintiff, Stamps; that there is a dispute as to a boundary line between Stamps and one Bigham; that a suit is pending at the expense of defendant Platt; that it will be prosecuted to final determination by defendant Platt. Wherefore this suit is prematurely brought, etc. Tried before the court without a jury, and judgment entered for defendant, from which plaintiff (below) appealed, and presents one assignment of error, viz.: The uncontradicted evidence is that the note sued upon is due and owing, and that the time stated in the note is the essence thereof. Appellee has filed no brief. [1, 2] The note sued on, copied above, shows that it was executed for value received by defendants, and that the only way For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |