between C. C. Aubrey and appellant, but the term "the plaintiff," as used, is broad enough to show the intendment of a contract between appellant and appellees jointly. Expressions in the prayer of the petition make the intendment clearer that the suit was by the husband as well, and not the wife alone, which say: "And upon a trial hereof that an account be taken of all and every the late copartnership dealings and transactions and that the said defendant be adjudged to pay the plaintiff what if anything shall appear upon such accounting to be due him, the plaintiff being ready and willing and hereby offering to pay to the defendant what if anything that shall appear to be due him." The allegation is sufficient to let in evidence that C. C. Aubrey and appellant entered into a partnership. It is true the petition, in stating that the stock of goods sold appellant, and which he had not paid for, alleged that "she (meaning the wife) owned and was in possession of the stock of goods" before the sale of them to appellant. But this allegation is not inconsistent with an allegation of the community property of the husband and wife, and community interest of the husband. It is not an affirmative allegation, or necessarily the equivalent of an allegation that it was the separate property of the wife, and that the suit was about the wife's separate property. Construing the petition as intending to allege that the goods sold appellant were community property, and in consideration of the debt due therefor appellees jointly agreed to form a partnership with appellant and contribute the amount owing to the partnership, the partnership so agreed upon would not be allowed to fail because the alleged contract of partnership was jointly made by C. C. Aubrey and his wife with appellant, instead of solely by C. C. Aubrey with appellant. In such circumstances the fact that the husband and wife jointly were a contracting party would not, as a matter of law, make the contract so formed of ineffectual or illegal formation as between the parties. It is not alleged that the business was to be carried on solely by the wife. The husband was bound, and appellant was bound, by the contract, and the contract was legal and complete. The evidence in the record does not show, we think, goods contributed to the partnership by Keith and Aubrey were the separate property of Mrs. Aubrey. If the money loaned to Henderson by Mrs. Aubrey, and to repay which Henderson delivered the goods, was earned by Mrs Aubrey partly from keep ing boarders and the sale of lots, as it appears, it must be considered as community funds. The bare proof that the apparent title to the lots was in Mrs. Aubrey, she at the time being married, is not sufficient proof to authorize the finding that the lots were the separate property of the wife. The tered into the agreement of partnership with appellant, and he conducted the business until closed down. Appellant says he understood that he was dealing and agreeing only with C. C. Aubrey, and not his wife. C. C. Aubrey does say he was agreeing to the partnership for his wife, and that it was her agreement. But it does not appear that the wife had any personal connection with the business, but that the husband did. It is immaterial, and does not make the contract void, or any the less the contract of the husband, that the husband says the partnership was for his wife, if in fact he was making and agreeing to a partnership himself, as he was, and exercised partnership control afterwards, as he did, and appellant so understood and knew. The pleading and evidence authorized the issue as to whether appellant and C. C. Aubrey formed a partnership, and upon such finding by the jury warranted a judgment establishing the existence of such partnership as between the parties. The charge complained of in the fourth assignment is not reversible error. It left to the jury to find whether Keith and C. C. Aubrey entered into a partnership. By the seventh assignment it is contended that the court erred in refusing a special charge directing a verdict for appellant upon the finding that the stock of goods in Mena, Ark., which was in possession of J. W. Henderson, in fact belonged to C. C. Aubrey, and at a time when C. C. Aubrey was insolvent J. W. Henderson, with the knowledge and co-operation of Aubrey, made a sham sale of the goods to appellant for the purpose and with the intent, on the part of Henderson and Aubrey, to place the goods beyond the reach of Aubrey's creditors, and to hinder and delay the creditors of Aubrey. The testimony of Aubrey shows that appellant came to him in Mena and told him that some of his creditors were in town and were after his goods, and advised him to turn the goods over to him, and they made a sham trade. Several days after this sham sale was made, Keith being in possession, a bona fide sale was made of the goods, as testified by Aubrey and Henderson, to appellant, he agreeing to pay 50 cents on the dollar therefor, and that thereafter, and in pursuance of the bona fide sale, appellant carried the goods to Hagansport, and the partnership in question was formed, and the bill of sale in evidence executed to appellees. Appellant does not deny that the goods were sold to him, but claims to have paid Henderson cash for the goods, and that he owed nothing thereon. The act of appellant in purchasing the goods, and in making a conveyance to appellee, was binding on him, and he was not entitled to a verdict on the facts because of a fraudulent conveyance in the first instance. Bicocchi v. Casey-Swasey Co., 91 Tex. 259, 42 S. W. 963. 66 Am. St. Rep. 875. The sale was Stephens v. Adair, 82 Tex. 214, 18 S. W. 102; E. B. Perkins and Glass, Estes, King & Burford, for appellant. H. O. Ledgerwood and Rodgers & Dorough, for appellee. HODGES, J. This is a suit for damages ST. LOUIS SOUTHWESTERN RY. CO. OF for the loss of a box and its contents while TEXAS v. RAY. (Court of Civil Appeals of Texas. April 7, 1910.) 1. Carriers (§ 177*) – LIABILITY - CONNECTING CARRIERS LIABILITY UNDER INTERSTATE COMMERCE LAW. Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), amending Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), requires any common carrier receiving property for transportation between points in different states to issue bill of lading therefor, and makes it liable to the holder thereof for any loss of such property caused by it, or by any common carrier to which such property may be delivered, or over whose lines it may pass. It is provided that nothing in the section shall deprive the holder of a bill of lading of any remedy under existing laws, and also that the common carrier issuing such bill of lading may recover from the carrier on whose line the loss occurred such loss as it may be required to pay the owners. Held, that the holder of a bill of lading was not bound to sue the initial carrier, but might sue directly an intermediate carrier for loss of or damage to goods on its line. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 775-803; Dec. Dig. § 177.*] 2. CARRIERS (§ 180*)-Loss oF GOODS-LIMITATION OF LIABILITY. in transit from New York City to Ft. Worth, and while in the custody of the appellant in the state of Missouri. It appears from the evidence that Mrs. H. O. Ledgerwood, while in New York, delivered the above-mentioned box to the Pennsylvania Railroad Company for shipment. That company issued a bill of lading describing the package as a box of books, with Ft. Worth as its destination. The form used is what is termed a "uniform bill of lading," which had been submitted to and approved by the Interstate Railroad Commission. By the terms of the bill of lading the Pennsylvania Railroad Company undertook to carry the property, subject to the classifications in effect on that day, to its usual place, and deliver if on that line; otherwise, to deliver to another carrier on the route to the destination of the goods. There was also a stipulation providing that in consideration of the reduced rate named the services to be rendered by each of the carriers should be subject to the conditions set forth on the back of the receipt or bill of lading. The only portion of those conditions material to be here considered is that in which it was specified that no carrier in possession of the property should be liable for loss occasioned by fire or causes beyond its control. The box was received and transported by the Pennsylvania road to East St. Louis, and there delivered to the appellant, and while in the possession of the latter was destroyed by fire. The claim for damages was assigned to the appellee, and this suit was instituted in his name. Among other defenses pleaded by the appellant in the court below was that provision of the bill of ladIn an action against a carrier for loss of ing exempting any carrier in whose possesgoods en route, testimony as to statements by sion the goods might be from liability for the shipper to the drayman who delivered the goods to the carrier as to what the box contain-loss caused by fire or other agencies beyond ed should have been excluded as self-serving. its control. To this portion of the answer [Ed. Note.-For other cases, see Evidence, the court sustained an exception, and inDec. Dig. The statute does not prohibit carriers from placing any limitation whatever upon their common-law liabilities, but merely forbids them from limiting their liability as to damages caused by the respective carriers, for which damage a carrier is liable, irrespective of negligence if it is responsible for the cause thereof, so that, where the contract of carriage exempted the carrier from liability for loss by fire, it could show that the fire occurred from causes beyond its control. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 180.*] 3. EVIDENCE (§ 271*)—SELF-SERVING DECLARATIONS-ADMISSION. 271.*] 4. CARRIERS (§ 110*)-Loss OF GOODS-LIA BILITY. If the shipper's misstatements as to the contents of a box shipped were material, and caused the carrier to omit the performance of some attention which the goods required, whereby they were lost, it would not be responsible for such loss, whether the misstatements were intentional or inadvertent. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 500; Dec. Dig. § 110.*] structed the jury that the plaintiff was liable, leaving to them only the ascertainment of the amount. This action of the court is the basis of the assignments which we will now consider. In support of the court's rulings and instructions reference is made to the following provision of the interstate commerce law, commonly known as the "Hepburn Act": "That any common carrier, railroad or trans Appeal from Bowie County Court; Joe portation company, receiving property for Hughes, Judge. transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, Reversed and remanded. damage, or injury to such property caused Action by John R. Ray, Jr., against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. of the damages from a receiving carrier, where the loss occurred upon another line, such receiving carrier may obtain reimbursement in an action against the carrier who caused the damage. To hold that the aggrieved party himself cannot enforce this liability by proceeding directly against the wrongdoer, but must travel the route his freight went and bring his action against the carrier who first received the goods, looks much like encouraging, rather than preventing, circuity of action and multiplicity of suits. Such a construction would attribute to the lawmakers an intent to return to ancient forms long since abolished. K. C. S. Ry. Co. v. Carl (Ark.) 121 S. W. 932. At common law the carrier upon whose line a loss occurs is liable as an insurer. If by the terms of this statute the carrier is forbidden to contract, for immunity from damages “caused by it," then it follows that the aggrieved party may, without the aid of any statute, proceed against it directly. * by it or by any common carrier, railroad, or age" is the one who must ultimately make transportation company to which such prop-recompense for the injury. Upon a recovery erty may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." "That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof." Act Cong. June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892; Supp. 1909, p. 1149) amending the interstate commerce act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]). The But we are not prepared to concede that appellant contends that this statute has no the terms of this statute apply only to inapplication here, for the reason that the itial carriers. It refers to "any carrier liabilities it creates, and the restrictions it * * receiving property for transportaimposes, are intended only for the initial car- tion from a point in one state to a point in rier, and that this suit is against an inter- another state." It does not say "any carmediate carrier. We have had some diffi- | rier receiving property at a point in one state culty in arriving at a satisfactory disposition of that contention. Evidently one of the purposes of this statute was to furnish the owner of property being shipped from one state to another, with a certain and speedy means of collecting compensation for goods lost, or damaged, when transported over two or more lines of railway. The other purpose, doubtless, was to put an end to the almost universal practice, indulged in by carriers in interstate shipments, of limiting by contract their liability to their respective lines, and to such damages as resulted from their own negligence. The task of identifying the guilty carrier in case of loss or dam-ities contemplated in the enactment of this age was often attended with so much difficulty as to call for relief through congressional legislation. To give the statute the construction placed upon it by counsel for appellant would afford but a partial relief from the difficulty intended to be corrected. that construction the injured party, in order to evade the former uncertainty as to the proper party to be sued, and to avail himself of the full benefit of the statutory inhibitions against restrictions of liability by carriers, would be required, in many instances, to go to distant states, and there institute his proceedings against the carrier who first received the goods for shipment, when the one who caused the damage was much nearer and of more convenient access. By By a portion of section 20 of the Hepburn act it appears that the carrier, whether in for transportation into another state." Reference to the origin and destination of the property seems to have been made for the purpose of indicating the character of the commerce to be affected, and not as designating the particular carrier upon whom liability should be imposed. An intermediate carrier who receives property from another carrier under a contract for through shipment is a receiver of property within the meaning of the act, and certainly should not be permitted to escape liability for the damage which it inflicts. If Congress had the right to impose the restrictions and liabil statute, why should there be any discrimination against the carrier who first received the goods for shipment? The disposition of these assignments involves a consideration of the further question, Does this statute prohibit carriers from placing any limitation whatever upon their common-law liabilities, or is the inhibition confined to those damages which are "caused" by the respective carriers? According to our view, the first question should be answered in the negative, and the other in the affirmative. We are further of the opinion that liability for damage "caused" by the carrier should be determined without reference to whether it resulted from the negligence of the carrier, if the carrier is responsible for the agency by reason of which the loss or injury occurs. the deception resulted from premeditation or from the inadvertence of the shipper's agent. For a discussion of the principles which we think are applicable to this feature of the case, we refer to the case of Head v. Pacific Express Co. (recently decided by this court) 126 S. W. 682. ing it from liability for loss by fire, and also a fraud had thereby been perpetrated upon offered evidence tending to show that the the carrier by which a lower freight rate had fire occurred from causes beyond its control. been secured. In those portions of the charge This proffered testimony was rejected by the complained of the court instructed the jury, court. We are of the opinion that the court in effect, that if the misrepresentations were erred in sustaining the exception before re innocently made, or a true statement of the ferred to, and in refusing to permit the in- contents carelessly omitted, and the carrier troduction of this testimony. While the misled, that would not affect the plaintiff's mere fact that the goods were destroyed by | right of recovery. If the deception was mafire would not in itself be a defense, appel- terial, and caused the carrier to omit the lant might have shown that the fire resulted performance of some duty or attention which from a cause for which it was in no way re- proper care toward that kind of freight responsible. On the contrary, it might appear | quired, and by reason of that fact the goods from the evidence that the fire was traceable were lost, we do not think it matters whether to the agency of the appellant, in which event it would be liable for the loss of the property burned. To say that the provision of the statute quoted refers to damage caused by the negligence of the carrier would be to charge Congress with having done much that was wholly unnecessary in an effort to prevent a limitation upon the liabilities of carriers. It did not require the aid of a statute to prevent carriers from contracting for immunity from damage resulting from their negligence. Had Congress intended in this amendatory legislation to confine the liability of one carrier for the damage caused DELAWARE INS. CO. OF PHILADELPHIA by another, in case of a through shipment, to that which results from negligence, its meaning could easily have been made plain. In view of the common-law liability of carriers which can only be escaped by contract, 1. INSURANCE (§ 143*)-MISTAKE INSURANCE and the fact that this provision is intended as a limitation upon the power to so contract for such immunity, the absence of any qualifying term restricting the language of the inhibitory provision to causes resulting from negligence is significant as indicating that no such intention existed in the minds of the lawmakers. Objection was made to the admission of certain testimony given by Mrs. Ledgerwood as to statements made by her to the drayman whom she employed to deliver the box to the Pennsylvania Railroad Company in New York. The court permitted her to testify as to what she told the drayman the box contained. This was probably admitted for the purpose of showing an absence of a willful intent to deceive as to the contents of the box. Her testimony, if entitled to consideration in the determination of any material issue in the case, was self-serving, and should have been excluded. For the errors discussed, the judgment of the county court is reversed and the cause remanded. v. HILL et al.† (Court of Civil Appeals of Texas. March 23, 1910. On Motion for Rehearing, April 20, 1910.) POLICY. A policy which, by reason of mutual mistake of the parties, does not embody their real intention, may be reformed in equity, or where equity at the same time, on proper pleadings, the court exercises the functions of law and may be reformed on a trial of an action thereon in which the mistake is shown. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 265-273; Dec. Dig. § 143.*] 2. REFORMATION OF INSTRUMENTS (§ 45*) — MISTAKE-WEIGHT OF EVIDENCE. Since a written policy of insurance is prima facie presumed to embody the real intention of the parties, evidence to overcome such presumption and to reform the mistake must be clear and convincing. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. § 181; Dec. Dig. § 45.*] 3. REFORMATION OF INSTRUMENTS (§ 16*)— CONTRACT SUBJECT TO REFORMATION. Where a writing embodies the contract actually made, the fact that the parties acted under a mistake of law, equity, or fact will not authorize a reformation. 16.*] 4. REFORMATION OF INSTRUMENTS (§ 43*)— KNOWLEDGE OF CONTENTS-PRESUMPTIONBURDEN OF PROOF. [Ed. Note.-For other cases, see Reformation The ninth and tenth assignments attack of Instruments, Cent. Dig. § 68; Dec. Dig. § certain portions of the court's charge relative | to misrepresentations made concerning the contents of the box when delivered for shipment. Appellant contends that when the property was tendered, the party in charge represented that it contained books; and that the contents sued for were oil paintings and other articles which called for a higher rate of freight than is charged for books, and that Since, if assured accepts a policy without dissent, it is presumed he knows its contents, the burden is on him, in a proceeding to reform it for mistake, to prove that he did not know ing that when he received it he put it away its contents when it was accepted, as by showwithout inspection, or that he relied on the in For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes surer's knowledge and supposed he had drawn | cies that a sale and mortgage of the property init correctly. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. § 154; Dec. Dig. 8 43.*] 5. REFORMATION OF INSTRUMENTS (§ 32*)—INSURANCE POLICY-TIME. An insurance policy may be reformed after, as well as before, loss if assured has not been guilty of laches. [Ed. Note. For other cases, see Reformation of Instruments, Cent. Dig. § 121; Dec. Dig. 8 32.*] 6. APPEAL AND ERROR (§ 204*)-RULINGS ON EVIDENCE OBJECTIONS NOT MADE TRIAL. AT No objection to the admission of evidence not made in the trial court can be considered on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1258; Dec. Dig. § 204.*] 7. REFORMATION OF INSTRUMENTS (§ 44*) MISTAKE-PAROL EVIDENCE. Where, in an action on a policy, it was claimed that the description of the property therein was not in accordance with the agreement and a reformation was sought, evidence. that defendant's agent went through the building, saw the property, was told that plaintiff wanted it all insured, that he agreed to do so, but by mistake failed to include it all, was admissible at least to show that defendant's agent went through the building with witness to view the property with a view of writing insurance thereon, that he saw all the property, and knew that insurance to a certain amount was wanted on all of it. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156; Dec. Dig. § 44.*] 9. REFORMATION OF INSTRUMENTS (§ 46*)LACHES QUESTION FOR JURY. Whether insured was guilty of laches for not discovering a mistake in a policy and in seeking to have it corrected before loss and suit brought thereon is for the jury; there being no arbitrary rule fixing the time within which such relief must be sought, unless it be the period of limitation applicable to such an equitable suit. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. § 194; Dec. Dig. 8 46.*] 10. INSURANCE (§ 87*) RISKS ASSUMED KNOWLEDGE OF AGENT. Where an agent has authority to exercise discretion in relation to the issuance of policies, and the risk assumed is a legal one which the company had power to accept, the insurer is bound by all the risks under the policy issued by the agent under the rule that the agent's acts within the scope of his real or apparent authority bind the principal. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 116; Dec. Dig. § 87.*] 11. INSURANCE (§ 376*)-CONDITIONS-WAIV ER-STATEMENT BY AGENT. An insurance company is bound by the statement of an agent authorized to issue poli sured would not avoid it and would be agreed to though the policy provided that its conditions can be waived only by specific agreement indorsed thereon, and that the agent shall be deemed the agent of the assured.. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 952; Dec. Dig. § 376.*] 12. INSURANCE (§ 328*)-INSURABLE INTEREST-MORTGAGES-RETIRING PARTNER. A mortgage, taken by a retiring partner, who sells his interest to the remaining copartner, to secure a part of the purchase money, is not within the condition of a policy prohibiting a change of interest without the consent of the insurer under the rule that the policy remains operative so long as the insured retains any interest in the property, legal or equitable, to the extent of the interest so retained. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 805%; Dec. Dig. § 328.*] 13. INSURANCE (§ 207*)-ISSUING AGENTS — AUTHORITY. Local agents of an insurance company who wrote the policy sued on on one of the company's blank forms, which provided on its face that it should not be valid until countersigned by the company's duly authorized agent at the place of issuance, such agent having countersigned the policy, received the premium, and de livered it to assured, had apparent authority to transfer the insurance in case of a transfer of the property. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 475; Dec. Dig. § 207.*] 14. INSURANCE (§ 281*)-MISREPRESENTATION -VALUE OF PROPERTY-VALUED POLICY. A misrepresentation of the value of the property insured by a valued policy is material to the risk and avoids the policy if fraudulently and intentionally made, and not a mere error in judgment. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 597-600; Dec. Dig. § 281.*] 15. INSURANCE (§ 281*)-MISREPRESENTATION OF VALUE-FRAUD-EVIDENCE. In order to establish a fraudulent overvalu ation of property insured by a valued policy, it must either be shown that the insured knew value must be so much less than that stated, as that the property was worth less, or the actual al; the mere fact that the property was worth to warrant a presumption that it was intentionless than the amount stated being insufficient. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 597-600; Dec. Dig. § 281.*] 16. INSURANCE (§ 646*)-VALUE OF PROPERTY OVERVALUATION FRAUD - BURDEN OF PROOF. The burden of proof of insurer's plea of overvaluation is on it. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 646.*] 17. INSURANCE (§§ 172, 281*)-"VALUED POLICY." Where a policy did not indicate an intention on the part of the insurer to value the risk and loss, it was not a "valued policy," and hence a misrepresentation by insured of the val ue of the property was not material to the risk and was therefore relevant only to the question. of fraud and false swearing in general. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 359, 597-600; Dec. Dig. §§ 172, 281.* For other definitions, see Words and Phrases, vol. 8, p. 7282.] |