Galveston Bay in pursuance of the business of the defendant, which consists of using its dredgeboats for dredging purposes in all navigable waters of the various states of the United States, and in foreign countries and waters, and that the said dredgeboat and equipment had for its home port the domicile and residence of the defendant corporation, which was and is in the state of Nevada, and that it was not under registry or enrollment by the collector of any port of the United States situated in the state of Texas. [Signed] H. H. Treaccar, Assistant County Atty., Attorney for the State of Texas. Stewarts, Attorneys for North American Dredging Co. "Exhibit A.-Inventory of Property. "Owned by North American Dredging Co. of Texas, and Rendered for Assessment of Taxes for the Year 1911 by C. N. Hopkins to F. McC. Nichols, Assessor of Galveston County, State of Texas. "List of Personal Property. "Carriages, buggies, wagons, etc., auto 123, value $500.00. "Value of all property of companies and corporations other than the property hereinbefore enumerated, dredge plant, machinery, pipe, equipment, etc., $15,000.00. "State of Texas, County of Galveston. "I, C. N. Hopkins, do solemnly swear (or affirm) that the above inventory rendered by me contains a full, true, and complete list of all taxable property owned or held by me in my name for North American Dredging Company in this county, and personal property not in this county, subject to taxation in this county by the laws of this state on the 1st day of January, A. D. 1911, and that I have true answers made to all questions propounded to me touching the same; so help me God. "[Signed] C. N, Hopkins, "Secty., N. A. D. Co. "Subscribed and sworn to before me this 27th day of Feby. 1911. "F. McC. Nichols, Tax Assessor, "Galveston County." This suit was defended by the North American Dredging Company of Nevada on the grounds: First, that no assessment or rendition for taxation of its personal property having been made, it cannot be called upon to pay taxes thereon; second, that the property of a nonresident of Texas which has not acquired an actual situs in the state is not subject to taxation in Texas. The first assignment of error assails the judgment on the ground that there has never been any assessment or rendition of the property of the defendant for taxes, and defendant cannot legally be required to pay taxes on unrendered and unassessed property. The contention under this assignment is that the inventory and rendition of the property shown by Exhibit A, above set out, shows that the property rendered and upon which the taxes claimed in this suit were assessed was rendered as the property of the North American Dredging Company of Texas, and, there being no evidence showing the assessment of property of this defendant, the North American Dredging Company of Nevada, appellee was not entitled to recover. The assignment cannot be sustained. The suit was brought against the "North Amerian Dredging Company." The petition alleges that the defendant was incorporated under the laws of the state of Nevada, but the name of the corporation as alleged in the petition is "North American Dredging Company." The appellant answered under the name of North American Dredging Company of Nevada. The answer does not suggest a misnomer of defendant, and there is nothing in the pleadings or evidence showing that there are two North American Dredging Company corporations, one having the name of North American Dredging Company of Texas, and the other North American Dredging Company of Nevada, further than the answer of the defendant, which states its name as North American Dredging Company of Nevada, and the statement in Exhibit A, above set out, in which the name of the property rendered is given as the North American Dredging Company of Texas. Exhibit B, referred to in the agreed statement, is a copy of the assessment roll and shows that the property was assessed as the property of the North American Dredging Company. [1, 2] While the facts shown by the agreed statement are meager, and the purpose of the agreement appears to have been to obscure rather than disclose the full truth in regard to the ownership and rendition of the property, we think the facts shown are sufficient to sustain the finding of the court that the property rendered and assessed, and upon which the taxes herein claimed are due, was the property of the appellant, and was duly rendered and assessed. Article V of the agreed statement is, we think, an admission that the property upon which the assessment was made, as shown by Exhibit A, was the property of appellant. [3] We are further of opinion that the allegations in the petition that the "taxes were duly and lawfully rendered and assessed and levied, as shown by Exhibits A and B hereto attached and made a part hereof," in the absence of a special exception, is an allegation that the North American Dredging Company, against whom the suit was brought, made the rendition shown by Exhibit A, and appellant having answered the suit without any objection to the name given in the petition, if the rendition was not made by it or its authority, it should have so pleaded under oath, and, having failed to make such plea, cannot be heard to deny that it made the rendition. Article 1906, subd. 8, Vernon's Sayles' Civil Statutes; article 3710, Vernon's Sayles' Civil Statutes. The second assignment complains of the judgment on the ground that the property upon which the taxes were assessed, being personal property of a nonresident and having no permanent or actual situs in Texas, was not taxable in this state. The agreed statement is as meager in its statement of facts upon this question as it is upon the question above discussed. [4, 5] Having reached the conclusion above stated, that the facts are sufficient to sustain the finding that the property was rendered for taxes in Galveston county by the appellant, we do not think the facts stated in article V of the agreed statement are sufficient to show that the property did not have such an actual situs in this state as would make it taxable here. It is well settled that a state has no authority to levy taxes upon personal property of a nonresident temporarily within its borders. Hall v. Miller, 102 Tex. 294, 115 S. W. 1168. It is also well settled by the decisions of the Supreme Court of the United States that as a general rule a vessel plying between ports of different states engaged in coastwise trade has its situs for taxation at the domicile of the owner, unless such vessel has acquired an actual situs in a state other than that of its owner's domicile. Ayer & Lord Tie Co. V. Kentucky, 202 U. S. 409, 26 Sup. Ct. 679, 50 L. Ed. 1082, 6 Ann. Cas. 205; Southern Pacific Company v. Kentucky, 222 U. S. 63, 32 Sup. Ct. 13, 56 L. Ed. 96. In the case of North American Dredging Co. v. Taylor, 56 Wash. 565, 106 Pac. 162, 29 L. R. A. (N. S.) 105, it was held that a dredge which had been built in a harbor of one state and remained there two years had a taxable situs there, though its owner's domicile was in another state. [6] The property was here and was rendered for taxation by the defendant, and if it could relieve itself of liability for taxes assessed on its voluntary rendition without pleading mistake, the burden was on it to show that the property was not taxable in this state. Stewarts, of Galveston, for plaintiff in error. W. E. Cranford, Asst. Co. Atty., of Galveston, for the State. PLEASANTS, C. J. This appeal is from a judgment of the court below in favor of defendant in error against plaintiff in error for the sum of $1,329.99. against plaintiff in error to recover taxes alleged The suit was brought by defendant in error to be due by the latter for the year 1911. The case was tried in the court below upon the foltowing agreed statement of facts: tween the parties herein and in order to avoid "This action is based upon a real dispute bethe expense incident to the production in open court of testimony upon the various issues raised by the pleadings it is stipulated and agreed that the case be tried wholly upon the following statement of facts in lieu of all other evidence: "I. The defendant, North American Dredging Company, is a private corporation organized under the laws of the state of Nevada, and not elsewhere, and that it has never been a resident of the state of Texas, or had its domicile therein, or been by the laws of Texas authorized to do business in such state. of taxes attached hereto as Exhibits A and B, "II. The inventory of property and statement respectively, are by the terms of this stipulation made a part hereof to be read as proof of all the matters of fact therein set out, except that nothing therein contained shall be considered as proof or an admission on the part of the defendant of liability for the payment of the amount claimed or any part thereof. "III. That the taxes in controversy rendered and proper representatives of the state under and assessed were so assessed by duly qualified proper authorization, and such assessment has been approved by the county commissioners' court of Galveston county, Tex. stitution of this suit for the recovery thereof "IV. That such taxes are unpaid, and the inhas been duly authorized. "V. That, with the exception of the automobile described in Exhibit A, heretofore referred to, all of the other property therein described, consisting of a dredge plant, machinery, pipe, equipment, etc., consisted of or were a part of the equipment of a movable seagoing dredgeboat It is not shown how long the dredge had plant, which dredgeboat was at all the times mentioned in the pleadings in this case engaged remained here, not shown that it was ever in the performance of a dredging contract in used elsewhere than in Galveston county. It Galveston Bay in pursuance of the business of is stated that defendant's business "consists the defendant, which consists of using its of using its dredgeboats for dredging pur-ble waters of the various states of the United dredgeboats for dredging purposes in all navigaposes in all navigable waters of the various States, and in foreign countries and waters, and states of the United States and in foreign that the said dredgeboat and equipment had for countries and waters." We think these facts its home port the domicile and residence of the fall far short of showing that the property state of Nevada, and that it was not under regdefendant corporation, which was and is in the did not have an actual situs in Galveston istry or enrollment by the collector of any port of the United States situated in the state of Texas. [Signed] H. H. Treaccar, Assistant County Atty., Attorney for the State of Texas. Stewarts, Attorneys for North American Dredging Co. county. Our conclusion upon the whole record is that the trial court did not err in rendering the judgment, and it is therefore affirmed. Affirmed. NORTH AMERICAN DREDGING CO. OF Error from District Court, Galveston County; Suit by the State of Texas against the North American Dredging Company of Nevada. Judgment for plaintiff, and defendant brings error. "Exhibit A.-Inventory of Property. "Owned by North American Dredging Co. of Texas, and Rendered for Assessment of Taxes for the Year 1911 by C. N. Hopkins to F. McC. Nichols, Assessor of Galveston County, State of Texas. "List of Personal Property. "Carriages, buggies, wagons, etc., auto 123, value $500.00. "Value of all property of companies and corporations other than the property herein before enumerated, dredge plant, machinery, pipe, "State of Texas, County of Galveston. "I, C. N. Hopkins, do solemnly swear (or affirm) that the above inventory rendered by me contains a full, true, and complete list of all taxable property owned or held by me in my name for North American Dredging Company in this county, and personal property not in this county, subject to taxation in this county by the laws of this state on the 1st day of January, A. D. 1911, and that I have true answers made to all questions propounded to me touching the same; so help me God. "[Signed] C. N. Hopkins, "Secty., N. A. D. Co. "Subscribed and sworn to before me this 27th day of Feby. 1911. "F. McC. Nichols, "Tax Assessor, Galveston County." This suit was defended by the North American Dredging Company of Nevada on the grounds: First, that no assessment or rendition for taxation of its personal property having been made, it cannot be called upon to pay taxes thereon; second, that the property of a man resident of Texas which has not acquired an actual situs in the state is not subject to taxation in Texas. The first assignment of error is as follows: "The court erred in rendering judgment for the plaintiff and against the defendant, for the reason that the evidence in the case conclusively proves that there has never been any assessment or rendition of the property of the defendant for taxes, and in the absence of such assessment or rendition the defendant cannot legally be required to pay taxes on such unassessed and unrendered property." The second assignment is: "The court erred in rendering judgment for the plaintiff and against the defendant, for the reason that the judgment rendered is for taxes upon property having no taxable situs in the state of Texas." The questions presented by these assignments are identical with those presented and decided by this court in the Case of North American Dredging Company of Nevada, a companion case to this and this day decided by us. 201 S. W. 1065. For the reasons stated in the opinion in the case referred to we hold that both of the assignments above set out should be overruled. Neither the architect of a school building nor the superintendent of schools could be held to be the agent of a jobber, who took the order for water-closets of the contractors to build the school and handled it with the manufacturer. 5. APPEAL AND ERROR 736 - ASSIGNMENT OF ERROR-MULTIFARIOUSNESS. An assignment of error which complains of two separate rulings of the trial court is multifarious, and will not be considered. 6. SALES 359(1) — PERFORMANCE - SUFFICIENCY OF EVIDENCE. In an action by a manufacturer of waterclosets against a jobber who handled the order of contractors to erect a school building, evidence held insufficient to show that the closets furnished the contractors were the identical closets ordered by the jobber. 7. PRINCIPAL AND AGENT 115(2)—RIGHT TO RELY ON AGENT'S PROMISE. A jobber who handled for a manufacturer of water-closets the order of contractors to erect a school building had the right to rely on the promise of the manufacturer's agents that the same type of closets would be shipped to the contractors that the latter had agreed to take. 8. SALES 363-ISSUE. In an action by the manufacturer of waterclosets against a jobber, the court properly submitted a special issue whether the jobber, at or before he ordered the goods from the manufacturer, knew that the latter had fixed a price to the customers, a firm of contractors, to erect a schoolhouse, since it was a material consideration, inuring to the jobber, that he should receive a reasonable profit on the transaction. 9. SALES 363-QUESTION FOR JURY. In such action, the court properly submitted the issue as to whether a moving consideration to the jobber to make the order of the manufacturer's goods, without which he would not have handled it, was the belief that he could fix a higher price with the contractors, his customers, and thereby make a larger profit. 10. SALES 124 · DUTY OF BUYER TO RE TURN-WAIVER BY SELLER. If a duty was owing by a jobber of plumbing supplies to a manufacturer of water-closets, No other assignment is presented. It follows that the judgment of the court below should on the jobber's attempted rescission of a conbe affirmed, and it has been so ordered. Affirmed. SANITARY MFG. CO. v. GAMER. (Court of Civil Appeals of Texas. Ft. Worth. FACT OF 1. PRINCIPAL AND AGENT 42 AGENCY-BUILDING CONTRACT. Where a jobber handled for the manufacturer an order for water-closets of contractors to erect a schoolhouse, the contractors were not the agents of the jobber after they had filed voluntary petition in bankruptcy. 2. APPEAL AND ERROR 1058(3)-HARMLESS ERROR-EXCLUSION OF EVIDENCE, If there was any error in excluding evidence of declarations of a claimed agent of defendant offered as res gestæ, it was harmless, where the declarant himself testified as a witness to the same effect. 3. APPEAL AND ERROR 1058(1)-HARMLESS ERROR-EXCLUSION OF EVIDENCE. Where persons whose letters were sought to be introduced in evidence both testified in a general way to the same effect as the letters which were excluded, such exclusion of the letters, if erroneous, was harmless. tract to return the shipment of closets, or to place the same at the manufacturer's disposal, it was waived by the manufacturer by its refusal to accept rescission. 11. SALES 124-BUYER'S FAILURE TO RETURN-PRECLUSION TO COMPLAIN. The acts of a manufacturer of water-closets, in procuring contractors to erect a schoolhouse to use closets by furnishing special design brackets and appliances after the jobber who handled the order had rescinded, precluded the manufacturer from complaining of the jobber's failure to return the closets. Appeal from District Court, Tarrant County; R. B. Young, Judge. Suit by the Sanitary Manufacturing Company against Charles Gamer. From judgment for defendant, plaintiff appeals. Affirmed. Dedmon, Potter & Pinney, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, W. L. Evans, and David B. Trammell, all of Ft. Worth, for appellee. BUCK, J. In 1911 Collins Bros. had the contract for installing the plumbing in the new high school building in the city of Tem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ple. The Sanitary Manufacturing Company closet outfits ordered through the Gamer Com- "Ft. Worth, Texas, May 10, 1911. "Sanitary Mfg. Co., Hamilton, Ohio: Please ship to Collins Bros., Temple, Texas, articles enumerated below at prices named. Freight allowance. Yours truly, The Gamer Company, "By Mummet. "Order No. 2074. 11 Hamilton Gem closets, type F-24 No. 847, with automatic seats and weights. 19 Hamilton Gem closets, type F-18, No. 847, with automatic seats and weights. All seats plain oak finish,' for The closets were shipped October, 1911, and in the meantime the Sanitary Manufacturing Company had furnished to Collins Bros., upon request, measurements "roughing-in" work preliminary to the installing of the closets. Upon receipt of the closets, on November 7, 1911, Collins Bros. wrote Gamer the following letter: On November 18th, by wire, first, then by letter, the Sanitary Manufacturing Company advised Collins Bros., that they had not been able to furnish the type of tank shown in the photographs, which had been exhibited by Wys at the time the order was made, but, owing to the necessity for prompt shipment, On November they had been forced to send an earlier and However, them direct, and as there is absolutely no profit "Gentlemen: We have your invoice dated October 19, 1911, covering material shipped to Collins Brothers, Temple, Texas. after having charged up this material, we received a letter from Collins Brothers stating that there would be a great deal of expense attached to the transaction, in view of the fact "Dallas, Texas, November 7, 1911. that the material did not agree with the specifi"The Gamer Company, Ft. Worth, Texas-cations. They also advised us that you quoted Gentlemen: The closets for the high school building at Temple have been received to-day, and we find from the roughing-in measurement that the factory sent us with our wall supports for the tanks, are going to come all wrong. They furnished us with a blueprint with detail exactly the manner in which the outfit should be set, and we have followed it closely. We find now that the tanks they have shipped miss our supports 7" too high for the backing strips that we placed in the plastered wall to carry the weight of these tanks. This is going to involve some expense that the factory should rightly bear. Wish you would notify them to that effect, as we propose to charge this item back to you, so that you may collect it from them. Very truly yours, Collins Brothers, per J. B. Collins." By letter dated the following day, Collins Bros. complained that Gamer had charged them more than the price the Sanitary Manufacturing Company had made, stating that the latter had made them a net price of $32. 50 each, for the closets. On November 9, 1911, Collins Bros. wrote the Sanitary Mfg. Co. as follows: In reply to this letter, the Sanitary Manufacturing Company wrote Gamer, declining to release him from responsibility for payment, and thereupon Gamer renewed his refusal to assume any responsibility whatever in regard to the transaction, and referred the Sanitary Manufacturing Company to Collins Bros. Several letters and wires were passed between these parties, without effecting any change in the attitude of the Gamer Company. The closets were in fact installed, after the changes had been made as to the installation, which were rendered necessary by failure to ship the pattern used by Wys in securing the order. On November 20, 1911, Collins Bros. filed their voluntary pe"Dallas, Texas, Nov. 9. '11. The Sani-tition in bankruptcy in the United States Distary Mfg. Co., Hamilton, Ohio-Gentlemen: trict Court at Houston. On November 22d, Yesterday we were in receipt of shipment of Collins Bros., "subject to the approval of the ཀ་་་་ receiver in bankruptcy," wrote the Sanitary of the rule that not every statement, represenManufacturing Company, calling their at-tation, or admission which the agent may choose tention to the failure to ship certain parts and attachments which were not included in the first shipment. These items were received by an employé of the receiver of Collins Bros., and later said receiver was paid in full by the school board of Temple for the closets. to have that effect, the statement or admission to make is binding upon the principal. In order must have been made: (1) In respect to a matter within the scope of his authority. The term 'authority' as here used has the same significance which it has in reference to the agent's act or contract. If, therefore, the statements, representations, or admissions offered in evidence were made by one who either had no auIn a suit by the Sanitary Manufacturing thority at all, or had no authority to represent the principal in the matters concerning Company against Charles Gamer, judgment which they were made, they are not admissible was sought for $887.50, which was alleged to against the principal. (2) So the statements, be the list price of the 30 Hamilton Gem clos- representations, or admissions must have been ets, less the 50 per cent. and 8 per cent. dis- made in reference to the subject-matter of his * agency. (3) And the statements, repcount. Defendant denied liability, and plead-resentations, or admissions must have been ed that the plaintiff did not ship the goods made by the agent at the time of the transacordered, but goods of a different kind and tion, and either while he was actually in the character, and that defendant rejected the performance, or so soon after as to be in reality a part of the transaction. Or, to use the comsubstituted goods on their arrival and re- mon expression, they must have been a part fused to accept same. He further pleaded of the res gesta. If, on the other hand, they that at the time defendant took over the were made before the performance was underorder at the instance of plaintiff's agent, agent was not engaged in the performance, or taken, or after it was completed, or while the Martin Wys, said plaintiff failed to inform after his authority had expired, they are not addefendant or defendant's agent, Mahoney, missible. In such a case they amount to no that any special price had been quoted Col- tion, and do not bind the principal. The reason more than a mere narrative of a past transaclins Bros., but, on the contrary, stated that is that, while the agent was authorized to act no price had been quoted Collins Bros. That or speak at the time and within the scope of defendant, under the custom and practice his authority, he is not authorized, at a subseamong factories and jobbing houses handling quent time, to narrate what he had done or how this character of goods, expected to make a profit of from 15 per cent. to 20 per cent. above the price paid the factory. That if he had known that the plaintiff had quoted Collins Bros. the price of 50 per cent. discount, he would not have accepted the order; that this fact was fraudulently concealed by plaintiff from defendant, and as soon as defendant learned thereof, he notified plaintiff that he would no longer be bound by said contract and agreement. The cause was tried on special issues, and judgment was rendered for defendant, and plaintiff has appealed. Appellant's first assignment complains of the exclusion of certain proffered testimony of its witness, Martin Wys, detailing a certain conversation alleged to have occurred between Wys and one of the Collins Bros. It is urged that Collins Bros. were the appellee's agent for receiving the shipment, and that any statement made by said Collins was admissible for the purpose of showing that the closets were in fact received, made satisfactory to the school board, and paid for by it. To sustain this assignment, appellant cites several authorities, including Cooper v. Britton, 74 S. W. 91, Standefer v. Aultman et al., 34 Tex. Civ. App. 160, 78 S. W. 552, both by this court, and Mechem on Agency, § 714. In the cited section, Mr. Mechem says: he did it." * * Collins, to the exclusion of which this as- Bros. filed their voluntary petition in bank- "The statements, representations, and admissions of the agent, made in reference to the act which he is authorized to perform and while engaged in its performance, are binding upon the principal in the same manner and to the same extent as the agent's act or contract under like circumstances, and for the same reason. But it is obvious from this statement be considered as the agents of the appellee * |
