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Since 1879 the law has given jurisdiction to the , stitute the whole cause of action should occur county 'where the cause of action or a part in a county to give jurisdiction.” thereof arose. In the case of Phillio v. Blythe, 12 Tex. 127, under the law defining the juris The same point was also decided the same diction of justices' courts, which provided that way by the Ft. Worth Court of Civil Appeals, suit might be brought in the precinct 'where in Cuero Cotton Oil Mfg. Co. v. Feeders' Supthe cause of action accrued,' etc. (Pasch. Dig. p. 285), it was decided that where the defend: ply Co., supra. Hence we overrule the first ant contracted in one precinct with the plain- assignment, and hold that the trial court rultiff to build a house for him in another, and ed correctly on the plea of privilege. We rest there was a breach of the contract by defend- our decision upon that point solely upon the ant in the latter, the cause of action for the ground that the plaintiff's cause of action recovery of the price accrued in the precinct arose in part in the county where the suit where the house was to be built, or the breach was brought, and not upon any other ground. was committed. In the case cited the plaintiff

[3] By several assignments of error, appelsought to recover on the ground that 'the cause of action accrued in precinct No. 1. He failed lant contends that the trial court committed to do so because it was shown that, while a

error in permitting the witness Foster to tes‘part of the cause of action,' as this term has tify concerning the meaning of certain probeen defined, 'arose' in that precinct, it 'accrued' visions of the written contract. Some, if not in precinct No. 2. There was, then, no law all, of the provisions referred to, are ambigu. authorizing a recovery by the plaintiff on the ous, in the sense that their meaning is not ground that a part of the cause of action arose clear to any one who is not familiar with the in any locality. In discussing the question in the case cited, the court say: When, under preparation of and dealing in cotton seed mill the common law, it was required that juries

products. However, some of his testimony, should be drawn from the immediate neighbor- for instance that defining what was meant by hood in which the cause of action had arisen, the letters “f. o. b.,” was immaterial. Hence it was found extremely difficult in mixed trans- we overrule the assignment referred to. actions, which happened partly in one place [4-7] We also overrule appellant's contenand partly in another,

to determine tion that, if the plaintiff was entitled to rewhere the cause of action did accrue. The same difficulties now exist in ascertaining cover, the measure of damage would be the the place of a cause of action, and it is a mis- difference in the cost of shipping the linters fortune that the Legislature, in expressing the from Galveston, and what would have been exceptions, did not employ • perspicuous terms,' the cost if they had been delivered at a etc. The difficulty mentioned has been removed point covered by the contract. We overrule by the language giving jurisdiction where the that coutention. The plaintiff had the right cause of action arose, or a part of it arose, which the Legislature has incorporated in the to stap) on its contract, and it does not lie law since the case of Phillio v. Blythe, supra. in the mouth of the defendant to say that, alThat case is plainly distinguishable from the though it breached the contract, if the plainpresent. In that case the recovery was sought tiff had waived its right to have performance in precinct No. 1, on the ground that the thereof in accordance with the contract, the cause of action accrued' there. It evidently ac- amount of damage would have been lessened. crued, as in this case, where the breach was However, we sustain appellant's contention committed, and that was, in the case cited, in presented by its eleventh assignment of error, the second precinct, where the contract was

to the effect that the plaintiff could not buy to be performed. But in the case under consid- other linters from itself, and hold appellant eration the plaintiff seeks a recovery on the responsible because of the fact that the lintground that ‘a part of the cause of action arose' in Howard county, Tex. That a part of it

ers so bought cost more than the contract arose in that county is manifest, because, if the price. But that ruling does not require a refacts (the dealings and transactions between versal of the case. The plaintiff's testimony plaintiff and Robinson, appellant's agent in shows that linters of the class contracted for Howard county) be eliminated from this con- had increased in value to such an extent that, troversy, plaintiff could not recover. That part if appellant had complied with its contract, of the cause of action which arose in that coun.

the plaintiff would have sold the linters at a ty is so essential to the existence of the cause profit equal to the amount of the judgment of action as a whole that there would be none without it. It has been held that, where the which was rendered against it. In other cause of action, to be within the jurisdiction words, while the provision in the contract of the court, must have arisen within its terri- may have authorized the plaintiff to purtorial jurisdiction, the phrase means the whole chase other linters in the open market and cause of action. This necessarily includes every hold the defendant liable for the difference fact material to be proved to entitle the plain- between the contract price and the price paid tiff to succeed, and every fact the defendant for such other linters, that provision is not would have a right to deny. 3 Amer. & Eng. mandatory, and does not limit the parties to Enc. Law, p. 46, note 1. It was doubtless one of the purposes of the Legislature to authorize

the remedy thereby conferred. Therefore, the plaintiff to sue in those counties where a conceding that the plaintiff did not comply part of the cause of action arose against cor- with that provision of the contract, still its porations, and not to restrict him to the vigorous petition was so framed as to entitle it to its requirement that every fact necessary to con- common-law remedy, which was the differ

ROAD DISTRICT BONDS ON CREDIT.

(218 8.W.) ence in the contract price and the price for junction in vacation, unless a right is clearly which plaintiff could have sold the linters; shown to exist to wbich recognition has not been and the plaintiff submitted testimony which properly accorded. will sustain the judgment upon that theory. Hence we conclude that no reversible error

Appeal from District Court, Smith County ; has been shown, and that the judgment

J. R. Warren, Judge. should be affirmed, and it is so ordered. Suit by the People's Guaranty State Bank Affirmed

of Tyler against W. R. Castle and others. Judgments for defendants, and plaintiff appeals. Affirmed.

The People's Guaranty State Bank of PEOPLE'S GUARANTY STATE BANK OF Tyler, Tex., brought the suit against the TYLER v. CASTLE et al. (No. 2184.)

county judge and the commissioners' court

of Smith county and the First National (Court of Civil Appeals of Texas. Texarkana. Bank of Troup, Tex., seeking a temporary Feb. 6, 1920. Rehearing Denied

mandatory injunction, and on a final hearing Feb. 12, 1920.)

for the order to be made permanent to com1. EVIDENCE 65BANK HELD AS MATTER

pel the payment to the county treasurer of OF LAW TO KNOW INVALIDITY OF SALE OF Smith county of the proceeds derived from

the sale of certain road bonds, to the end A bank, purchasing road bonds under Loc. that the money would be, as the law directs, & Sp. Acts 33d Leg. (1913) c. 70, providing that turned over to appellant, the depository of such bonds be sold to the highest bidder for said county. The judge in vacation heard cash, must be held as matter of law to know the testimony on the application, and refused that a sale and purchase of the bonds partly to grant the temporary injunction. The judge on credit, or deferred installment payments, was made findings of fact substantially as 'folin violation of the law and void.

laws: 2. HIGHWAYS 90—SALE OF ROAD DISTRICT That Smith county is acting under a spe BONDS ON CREDIT VOID.

cial road law of the Thirty-Third LegislaUnder Loc. & Sp. Acts 33d Leg. (1913) c. ture (see Acts of the 33d Legislature p. 262), 70, providing that road district bonds should and under that law any defined road disbe sold to the highest bidder for cash, a sale trict of Smith county may issue bonds for and purchase of the bonds partly on credit, or the purpose of constructing, maintaining, deferred installment payments, was void.

and operating public roads in such district. 3. HIGHWAYS 90—PURCHASER OF ROAD DIS- The act authorizes and continues the custody

TRICT BONDS AT VOID SALE LIABLE THEREFOR of the bonds in the commissioners' court of TO COUNTY.

the county until by that court sold to the Where bank bought road district bonds un- highest and best bidder for cash, either in der Loc. & Sp. Acts 33d Leg. (1913) c. 70, part- whole or parcels, at not less than their par ly on credit, or deferred installment payments, value. An election was duly and legally held and obtained title to the bonds and sold them in Troup road district No. 6, of the said to another bank, the first bank, even though the sale and purchase of the bonds was void, was county, on November 3, 1917, and a twoliable in debt to the county for the bonds.

thirds majority of the legal votes cast at the

election were in favor of the issuance of 4. HighwAYS A90—LIABILITY OF BANK FOR bonds in the district in the sum of $100,000.

PURCHASE PRICE OF ROAD BONDS SOLD ON The First National Bank of Troup bid on the
CREDIT AS DEBTOR TO COUNTY AND NOT As bonds par and accrued interest to the date
DEPOSITEE OF COUNTY.
Where bank bought road district bonds un-

of the delivery of the bonds to an amount der Loc. & Sp. Acts 33d Leg. (1913) c. 70, part- aggregating $105,472, less $1,150 costs and ly on credit, or deferred installment payments, attorney's fees incurred by the bank, the and sold the bonds to another bank, the sale same to be paid by the bank as follows: by the road district and purchase of the bonds $4,322 cash, and the remainder in 20 equal by the first bank being void because on credit, installments of $5,000 each, the first installthe liability of the bank to the county was in ment due and payable on June 1, 1919. The the nature of a debt, and an order to presently commissioners court approved the sale, and command the delivery of any money by such bank to the depository of the county could not the First National Bank of Troup executed a exist; no money being actually on deposit in personal bond to the county judge to secure the bank.

the payment of the deferred payments. The

People's Guaranty State Bank of Tyler, Tex., 5. APPEAL AND ERROR 954(1)–EXERCISE OF

was appointed the depository of all the DISCRETION BY TRIAL JUDGE IN RESPECT TO TEMPORARY MANDATORY INJUNCTION NOT DIS- funds of Smith county for a period of two

years from February, 1919. The First NaAn appellate court will not ordinarily inter- tional Bank of Troup, after the bonds were fere with the exercise of discretion by a trial delivered to it by the commissioners' court, judge in respect to a temporary mandatory in- , sold the bonds to the City National Bank of

For other cases see same topic and KEY-NUMER in all Key-Numbered Digests and Indexes

TURBED.

Dallas, Tex., and received payment for same. [1-5] The only departure from the statute The cashier of the First National Bank of is in taking notes payable monthly instead Troup, Tex., credited the road district on of cash for all the purchase price of the the books of the bank with the sum of $100,- bonds. It is clear, as a legal rule, that the 000, but this was understood as simply a First National Bank of Troup would be held, matter of bookkeeping, and said sum was as a matter of law, to know that a sale and not in fact subject to check by either the purchase of the bonds partly on credit or decommissioners' court or the Troup road dis- ferred installment payments was in violation trict. The First National Bank of Troup bid of the law and consequently to that extent a for the bonds $3,750 more than any other void act. But it does not follow that the bank person or association did, and this bid was is in consequence of that fact entirely relieved made in order that the total sum of the of any liability to pay for the bonds. And bonds might be paid in monthly installments if title to the bonds passed to the Troup of $5,000 each. The trial judge denied the bank on the contract of sale, then the subse application for a temporary mandatory in- quent sale to the Dallas bank is only the junction, upon the ground that the First fruit of the contract available to the Troup National Bank of Troup was entitled to a bank, and not to the road district. The entrial at the regular term of the court upon forcement of the liability for the original the validity of the contract of sale of the purchase by the Troup bank is, in the cir. bonds.

cumstances, in the nature of enforcing the Simpson, Lasseter & Gentry, of Tyler, for payment of a debt. There being no money appellant.

actually on hand on deposit, an order to Marsh & Mellwaine and J. A. Bulloch, all presently command the delivery of any mon

ey would not exist. The claim of the county of Tyler, for appellees.

being in the nature of a debt, and the money

not being actually on deposit in the First LEVY, J. (after stating the facts as above). National Bank of Troup, we do not think The prayer of the application in this case is: that the trial judge erred in holding that

“To grant a temporary mandatory injunction the temporary mandatory injunction should commanding the defendants to pay the county not issue in advance of a final hearing of treasurer of Smith county the remainder of the the case. The appellate court will not ordiproceeds derived from the sale of the bonds."

narily interfere with the exercise of discre

tion by a trial judge in respect to a tempo And the application alleges that:

rary mandatory injunction in vacation, un“The proceeds derived from the sale of the less a right is clearly shown to exist to which bonds at this time amounts to $95,000, which recognition has not been properly accorded sum is now on deposit in the defendant bank by the trial judge. to the credit of road district No. 6 of Smith

The judgment is affirmed. county, Texas."

But, after hearing the application, answer, and the evidence, the trial judge decided, in point of fact, that the said bank was not hold

MEADOR V. RUDOLPH.' (No. 1580.) ing the purchase price of the bonds on de posit to the credit of the road district, but (Court of Civil Appeals of Texas Amarillo. owed a debt to the county commissioners' Dec. 3, 1919. On Motion for Rehearing, Jan. court which was contracted by the commis

14, 1920. Second Motion for Rehearing De sioners' court under the sale and delivery of

nied Feb. 18, 1920.) the bonds to the First National Bank of 1. NOVATION 5 NEW CONTRACT WITHI Troup for par value and accrued interest to BANK AS TO PAYMENT OF COMMISSION SUBdate of the delivery, and that the said debt STITUTED FOR OLD ONE EXTINGUISIES PURwas not yet due. The transaction as made CHASER'S LIABILITY UNDER OLD ONE. by the hearing then rested purely in con

Where purchaser and broker, whose comtract, and there is involved the question of mission purchaser had agreed to pay, entered the validity of the contract.

into a new contract, pursuant to which the Under the

amount of the commission was deposited in a terms of the special road law authorizing bank to broker's credit, to be paid to broker the issuance of the road bonds an undoubted by bank on a certain contingency, the new conpower existed on the part of the commis- tract extinguished the old, and substituted the sioners' court to sell the bonds and at the bank as the debtor; broker's cause of action aggregate price sold. But under the further for the commission thereafter being against terms of the law it is expressly provided bank and not purchaser. that:

2. BANKS AND BANKING 119 GENERAL “Such bonds * shall be by said court

DEPOSIT CREATES RELATION OF DEBTOR AND sold to the highest bidder and best bidder for

CREDITOR. cash, either in whole or in parcels at not less The making of a general deposit with a bank than their par value.” Section 16.

creates the relation of debtor and creditor beFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.) tween the bank and the party in whose name county by Rudolph, was against S. D. Meadthe deposit is made.

or and Annie Meador, the widow, and the 3. NOVATION 1-ELEMENTS OF NOVATION named children of Mrs. Meador by T. S. STATED.

Meador, deceased. All parties defendant Novation is effected by the substitution of were dismissed except S. D. Meador. It is a new obligation, between the same parties, with substantially alleged: That Rudolph, the the intention to extinguish the old one, or by plaintiff, resided in Sherman county, Tex., the substitution of a new debtor with the in- and that the defendants Meador, against tention to release the old one, or by the sub whom the suit was prosecuted to judgment, stitution of a new creditor with the intention and all the other defendants dismissed reto transfer the rights of the old one to him.

sided in Montague county, Tex. In the early 4. NOVATION A7-ACCEPTANCE MAY BE IMPLIED FROM CIRCUMSTANCES AND CONDUCT OF ing a real estate business in Sherman coun

part of the year 1902 plaintiff was conduct. PARTIES. It is not essential that assent to the accept then resided in El Paso, Tex., for the sale of

ty, and was the agent of J. W. Taylor, who ance of the terms of novation be shown by express words, but the same may be implied from seven sections of land in Sherman county. the words and the circumstances and the con- On the 15th day of February, 1902, Taylor, duct of the parties.

through the plaintiff as agent, entered into 5. VENUE O 8 ACTION FOR CONVERSION

a contract in writing with T. S. and S. D. PROPERLY BROUGHT IN COUNTY OF DEFEND- Meador, whereby Taylor sold to said parANT'S RESIDENCE.

ties seven sections of land at the price of Where purchaser's agreement to pay ven- $1.50 per acre, and at the total price of dor's broker his commission was extinguished $6,676.50. Plaintiff, was the procuring cause by new agreement whereby commission was de of the sale, and that Taylor thereby became posited in bank to broker's credit, to be paid indebted to plaintiff for the commissions due on certain contingency, if thereafter the bank in effecting the sale. That the Meadors aswrongfully turned over the deposit to the pur sumed the commissions due the plaintiff from chaser, broker's cause of action against purchaser, if any, was for wrongful appropriation Taylor, and agreed to pay the same as part of such fund by the purchaser, and the venue of the purchase price of the land. That the of such action would be the county of purchas- written contract stipulated the Meadors er's residence, instead of county in which land would pay J. W. Taylor the total purchase sold was situated.

price, and that Taylor should furnish an ab(Ed. Note.-For other definitions, see Words stract of title, and upon examination thereand Phrases, First and Second Series, Nova- of, if the title was shown to be without detion.)

fect, or if pronounced by expert legal opinOn Motion for Rehearing.

ion satisfactory, they should remit the sum 6. BANKS AND BANKING Cw153—DEPOSIT TO of $5,659.27 to the Lowden National Bank of BE PAID THIRD PARTY UPON CERTAIN CON

El Paso, Tex., for Taylor, and at the same TINGENCY NOT A SPECIAL DEPOSIT IN ITS RESTRICTIVE SENSE.

time remit to plaintiff at Stratford, Tex., Deposit in bank to credit of another person, $968.09. That at the time of signing the conto be delivered to such person by bank upon tract the defendant paid $100 of the $968.09, depositor being successful in pending suit leaving a balance owing of $868.09, for which against him, was not a special deposit in its they were liable under the contract, which restrictive sense, requiring the thing deposited had not been paid, though demanded. The to be safely kept and the identical thing re-l contract is made an exhibit to the petition. turned, but was a special deposit in the sense It is further alleged Taylor and plaintiff that it was for a specific purpose, making bank liable to third party upon payment to depositor complied with the contract, and prepared in violation of the contract between the parties and furnished an abstract of title as it apwith reference to the deposit.

peared of record on that date, and that it

was furnished the defendants, who employed Appeal from District Court, Sherman

attorneys to examine the same, and who deCounty ; Reese Tatum, Judge.

clared it met the requirements of the conAction by C. F. Rudolph against S. D. tract, which was accepted by the defendants ; Meador and others. Action dismissed as to that Taylor executed and delivered to dedefendants not named. From judgment for fendants deeds to the land, which they acplaintiff against named defendant, the lat-cepted, and paid Taylor $5,659.27 as stiputer appeals. Reversed and remanded, with lated in the contract, but failed to pay plaininstructions.

tiff the sum of $868.09, remaining due acDavis & Davis, of Gainesville, for appel-cording to the contract; that pending their lant.

default in this regard Taylor's wife, Mrs. W. I. Gamewell, of Dalhart, for appellee. Florence Taylor, brought suit against the

Meadors, setting up that the land was her HUFF, C. J. This action, as riginally in- separate property; that long litigation restituted in the district court of Sherman sulted from the suit. On final result of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

litigation it was decreed that the Meadors, and was not to be paid plaintiff, whatever were entitled to all the land except an un- the decision of the courts, but was always divided 91728/667680 interest awarded to subject to the use and to the order of MeaMrs. Taylor. The defendants are charged dor Bros., for which reason the defendants with a deliberate, willful breach of the con were estopped from invoking the statute of tract on the 10th lay of March, 1902, and limitations on the contract of February 15, consequent damages by failing to send the 1902, which is sought to be enforced against money to plaintiff on that date. Plaintiff them. It is then alleged Meadors and the after that date frequently demanded pay- bank conspired, and did fraudulently cause, ment, but some months after the amount said escrow money to be paid over to them should have been paid, in pursuance to a ver- by the bank, fraudulently and wrongfully, bal promise, made by the Meadors, that they and concealed that fact from plaintiff. Judg. 'would deposit $968.09 in the First National ment is sought for $868.09, with interest, Bank of St. Joe, Tex., to the credit of plain and to foreclose a vendor's lien on the land, tiffon condition, and not subject to check which was decreed to the Meador Bros. in or withdrawal by him, “and represented to the suit referred to, or to foreclose an equitahim (plaintiff] that same was in escrow, and ble lien. was deposited by them to await the judg The appellant, defendant below, excepted ment and result of the suit by Mrs. Taylor to the petition, for that it appears therefrom against them and Taylor for the land above that defendant's residence is in Montague referred to, and that, if said suit should re-county, Tex., and that none of the exceptions sult in their favor, said bank was instruct- to exclusive venue existed in the cause; and, ed to, and would, pay said sum to plaintiff, further, it appears that the agreement of and, if it resulted unfavorably or against February 15, 1902, was abrogated by subse them [T. S. and S. D. Meador), the bank was quent agreement, which last agreement was instructed to, and would, return said depos- not to be performed in Sherman county. it to them, the Meadors." The bank fur-Appellant also pleaded his right to be sued nished the plaintiff a deposit slip in the usu- in the county of his residence, Montague al form, with the notation thereon "on con- county, which pleading was in the usual ditions not subject to check.” It is alleged form, complying with the statutes for such that it was found that the $968.09, after its pleas. Subject to the exception as to venue deposit, was too much by $100, which had and the plea of privilege to be sued in the been paid to Rudolph when the contract was county of his residence, the defendant ansigned, and at the request of the defendants swered by general and special exceptions plaintiff gave an order to the St. Joe bank to and by general and special pleas in bar, pay back to defendants the $100, and to hold which will not be noticed at this time. It thereafter $868.09, which the bank did, and appears from the record all pleas, that of it is alleged that, by reason of the represen- privilege and others, were submitted at one tations of defendants to plaintiff and of said time, except that the exception to the petideposit and deposit slip, and plaintiff's con- tion as to the venue of the case, as stated fidence in defendants, “plaintiff acquiesced in in the answer, was overruled by the court. same, though unwillingly and under protest, T. S. and S. D. Meador entered into a writ. and was persuaded by said Meadors, and at ten contract with J. W. Taylor, dated Feb their solicitation agreed, that they should re- ruary 15, 1902, Rudolph acting for Taylor in frain, and did refrain, from instituting suit its execution, and signing it as agent for Tar. against T. S. and S. D. Meador to recover lor. It is recited therein that C. F. Rudolph, said amount of money, and was induced by as agent for Taylor, “has sold and by these same to agree to the surrender by the Low- presents binds himself and contracts that a den National Bank of El Paso, Tex., of the good and perfect title shall be given by said Taylor title deeds to the Meadors, and has owner, J. W. Taylor,” to the Meadors, to the for all this time since said year 1902, and seven sections of land described. "It is fur. since said 13th day of March of said year, ther agreed and is part of this contract that waited in good faith for the disposition of the title to the said land now existing in said suit against their title, and for the pay- the said J. W. Taylor is a clear, unclouded ment to him of said sum by said bank, in and unincumbered title in all particulars." the event the Meadors were successful in Rudolph was to prepare an abstract showing said suit.” Since final disposition of the the title to be such, "covering all conveysuit on May 15, 1918, with the result as ances or actions of any kind affecting the above stated, and not until then, about title thereto as are shown by the records of the 18th day of September, 1918, plain- Sherman county." The title shown was to tiff learned from the bank that in June, be satisfactory to the Meadors “by legal or 1916, the amount of $768.09 was with expert opinion," as showing good and perdrawn by the defendants; that by reason fect title. When so pronounced, Taylor thereof it is alleged the deposit was not "shall thereupon execute a warranty deed,” made in good faith, and that it was not sub-conveying "said tracts of land to the said ject to the decision of the courts in the suit, T. S. & S. D. Meador at El Paso, Tex., upon

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