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pp. 341, 790; Waite on Fraud. Conveyances, For the reasons indicated, the judgment of § 177; Bump on Fraud. Conveyances, 567; the Court of Civil Appeals should be reversMoore on Fraud. Conveyances, vol. 2, 743; ed, and the judgment of the trial court 20 Cyc. 663; Interstate Rubber Co. v. Kauf- should be affirmed, and it is so ordered. man et al. (Neb.) 153 N. W. 585; Ferguson v. Hillman, 55 Wis. 181, 12 N. W. 394; Musselman Grocery Co. v. Kidd, Dater & Price Com- STEPHENSON v. LUTTRELL. (No. 2770.) pany, 151 Mich. 478, 115 N. W. 409; Mar

(Supreme Court of Texas. Oct. 20, 1915.) quette County Savings Bank v. Koivisto, 162 1. TENANCY IN COMMON On 29 – IMPROVEMich. 554, 127 N. W. 680; Jaques & Tinsley MENTS—RIGHT TO CONTRIBUTION. Co. v. Carstarphen Warehouse Co., 131 Ga. 1, A tenant in common who improved the com62 S. E. 82; Kohn v. Fishbach, 36 Wash. 69, mon property by having it filled in and its level

raised by a dredging company could not re78 Pac. 199, 104 Am. St. Rep. 941; Armstrong cover from his cotenant his share of a portion v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. of the agreed price for doing the work, which 139; Willis v. Yates, 12 S. W. 232; Holloway he had not paid, and against which limitations

had run, as he was only entitled to reimbursev. Bank, 92 Tex. 187, 47 S. W. 95.

ment for the money spent by him in making This holding is not in conflict with Le- the improvement, and could not speculate on the geirse v. Kellum, 66 Tex, 243, 18 S. W. 509, transaction or obtain a profit from his cotenant, Kessler v. Halff, 21 Tex. Civ. App. 91, 51 even though the cotenant received the benefit of

the work which had not been paid for. S. W. 48, and Blum v. Goldman, 66 Tex. 623,

[Ed. Note.-For other cases, see Tenancy in 1 S. W. 899. The holding in those decisions Common, Cent. Dig. 88 89-92, 94; Dec. Dig. is to the effect that a creditor of an insolvm 29.] ent debtor cannot in a direct proceeding, 2. TENANCY IN COMMON O38-ACTIONS FOR without the aid of garnishment or other lien,

CONTRIBUTION-JUDGMENT-CONFORMITY TO

PLEADINGS. obtain personal judgment against the pur

In an action by one tenant in common chaser, even though he purchase for the pur- against another to recover defendant's share of pose of hindering, delaying, and defrauding the cost of improving the property by filling it the creditors of such debtor. The soundness in and raising its level

, plaintiff could not recova

er defendant's share of the cost of filling in a of such holding could hardly be questioned, street adjacent to the property, where there was since in such a case the creditor did not lose no allegation in the petition that he had inanything by the wrongdoing of the fraudu- curred any expense in filling the street, or that lent creditor in making the purchase. All it was necessary to fill the street as a benefit to

the property. the creditor lost was an opportunity to levy [Ed. Note.-For other cases, see Tenancy in upon the goods of the debtor, but this dam- Common, Cent. Dig. 88 100-104, 107–118; Dec. age is too remote to create a cause of ac-Dig. Om 38.] tion. In those cases no lien by garnishment, 3. TRIAL 76_OBJECTION TO TESTIMONY

TIME FOR OBJECTION. attachment, or otherwise, had been acquired

In an action by one tenant in common by the creditor, while in the instant case a against another to recover defendant's share of garnishment lien was secured.

the expense of improving the property by filling The complaint by the defendants in error it in and raising its level, the petition did not that there was error in rendering judgment in filling an adjacent street, or that it was

allege that plaintiff had incurred any expense for the plaintiffs in error because they fail- necessary to fill the street as a benefit to the ed to allege that the merchandise had been lot, but did allege that_the lot was filled at an sold prior to the service of the writ of gar- objection that the expense of filling the lot and

expense of $6,825.87. Plaintiff testified without nishment is without merit, since, as noted the street was $6,825.87, and was then asked in this opinion, the defendants in error were whether it was necessary to fill the street as indebted to Sweet for the value of the mer objected. Held, that the objection was timely

a benefit to the lot, to which question defendant chandise at the time the writ of garnish- interposed, and there was no waiver of the ment was served, and it would seem unneces- objection on the ground of variance, since the sary to plead in what mạnner they became testimony admitted without objection showed so indebted. However this may be, they did that only a part of the expense alleged was in

curred in filling the lot, and thus contradicted not except to the pleading on said ground, the allegation of the petition, and defendant was. and themselves made the allegation that not required to object thereto. they had disposed of the property prior to

[Ed. Note. - For other cases, see Trial, Cent. the service of the writ. They also allowed Dig. $8 172, 183–190, 237; Dec. Dig. Om76.] the proof to be offered without objection. Error to Court of Civil Appeals, Fourth Under such circumstances they should be Supreme Judicial District. held to have waived error on the question. Suit by R. W. Luttrell against John Ste

[3] There being no cross-assignment of phenson and others. A judgment for plaintiff errors by the plaintiff in error before this was reformed and affirmed by the Court of court, complaining of the action of the trial Civil Appeals, Fourth District (160 S. W. court in not rendering judgment for the en-666), and the defendant named brings error. tire debt due by Sweet, it is unnecessary for Reversed and remanded. us to decide whether a judgment should have Geo. G. Clough, of Galveston, for plaintiff been rendered for the entire debt due by in error. Stewarts and J. E. Quaid, all of Sweet to them.

Galveston, for defendant in error.

Tex.)

STEPHENSON v. LUTTRELL

261

YANTIS, J. R. W. Luttrell, defendant, his expense; and that it was an unnecessary in error, sued John Stephenson, the plaintiff act of an intermeddler. in error, William E. Stringfellow, Jas. W. There is evidence to support the finding Walker, Mrs. Jas. A. Borard, and husband, that the lot had not been filled when plainJas. A. Borard, in trespass to try title for tiff in error purchased it, but that the filling "out lot No. 7,” in the city and county of began while owned by his vendor the latter Galveston, and, in the alternative, sued them part of May, 1909, and continued until July for contribution to recover their proportion 12th, thereafter. It was purchased by plaintiff of the expense incurred by the defendant in in error June 18, 1909, and his deed withheld error in filling said lot and raising its level, from record. if it should be decided that said Stephenson, At the trial the defendant in error, Lutplaintiff in error, and others sued with him, trell, dismissed as to the defendants Jas. W. owned any interest in the lot.

Walker, Jas. A. Borard, and Mrs. Jas. A. The defendant in error, Luttrell, alleged Borard, and also as to Stringfellow, though in his petition that at the time he contracted in the judgment that was entered after the to purchase said lot it was a part of a low trial the last name was omitted therefrom by marsh, worth about $3,500, and that prepara- a "clear oversight.” After the trial the distions were then being made to fill up the trict court corrected the oversight by rendersurrounding territory, which was in a like ing a judgment nunc pro tunc, dismissing condition, and that a necessity existed for said Stringfellow from the suit. the owners of said lot to fill same, and that The case was tried before the court withhe made a contract with the North American out a jury, and the findings of fact filed by Dredging Company, with whom he was em- the trial court are as follows: ployed in doing other work, to fill said lot, "I find the facts to be as stated in the petiat a cost of 1712 cents per cubic yard, or at tion, except as to the ownership of the onea cost of $6,825.87 for the entire lot: that third interest in out lot No. 7, formerly owned

by the defendant Stringfellow, and that the the filling was to be done by hydraulic pro- ownership of that interest is as stated in the cess, the solid material being held in position answer of the defendant Stephenson. I find by the water by which it was borne into the that the plaintiff acted in good faith and with

due diligence in seeking to learn the tru lot and there allowed to settle, and, unless ship of the one-third interest not owned by him, the opportunity then offered for filling the lot with the purpose of trying to get the owner to was availed of, it would have been left a join in availing of the opportunity of having hole in the ground, which could not after- the whole out lot filled at the moderate cost,

made practical at the time by the North Amerwards have been filled, except at a cost great- ican Dredging Company being in position to ly in excess of its value; that for his own do it, growing out of the fulfillment of contracts protection, and that of his co-owners, it was with the city of Galveston ; that, if it had not necessary that the filling of the lot be done become a public nuisance, a menace to the life

been filled at the time, the out lot would have at that time in connection with the general and health of the inhabitants of the city; and scheme for filling the surrounding territory; that it could not have been filled later except and that otherwise it would have been ren- at a cost entirely prohibitory, because greatly dered absolutely worthless, whereas after it ing filled. I find that the plaintiff, in having was filled it was worth from $10,000 to the out lot filled without the co-operation of the $12,000, having been raised to a grade of owner of the Stringfellow interest, did so be5.5 feet above mean low tide, as required by cause he was unable to learn who the owner

was, the deeds of Stringfellow to Clough and an ordinance of the city of Galveston. The of Člough to Stephenson having been withheld defendant in error, Luttrell, in addition to from record until after the filing of this suit, his claim for contribution, sued for the es. and was compelled to do it to save the common tablishment of a lien on the undivided one entirely lost and destroyed; that it was prop

property and his own interest in it from being third interest of the plaintiff in error and erly filled, at moderate cost; and that the plainthose under whom he claimed for a propor- tiff has paid to the North American Dredging tionate part of the expense incurred in fill- Company in services the cost of the filling, ex:

cept the sum of $1,000, which he still owes. I ing said lot.

find that said filling operations for the area inThe plaintiff in error, John Stephenson, cluding this out lot, began about the last of assumed the defense for himself and those May, 1909, and were completed on July 12, under whom he claimed, and alleged that under whom he claims, knowing they were go

1909, and that defendant Stephenson and those about the 7th day of June, 1909, the defending on, stood by mute, and speculated in the ant Stringfellow sold to George Clough, and chance of not having to pay for it. The total that about the 18th of the same month he cost of filling the out lot was $6,825.87, payable purchased from said Clough. The undisput-property from becoming valueless and increased ed evidence established said dates of sale its value by a sum at least equal to the exand purchase. He also alleged that neither he pense.' nor his vendors had any notice of the claim There is evidence of probative force to of a lien by the defendant in error, Luttrell, support all of the findings of fact by the trial and that they purchased in good faith for court, except the finding that the total cost value without notice; that the property was of filling the lot was $6,825.87, and this findalready filled to grade when they bought; ing is true if a filling of a portion of the that the defendant in error, Luttrell, had no street adjacent to the lot should be treated evidence shows that 24,358 cubic yards went, they cost him, and that he should have his into the lot, which, at 1712 cents per cubic cotenant contribute to him in proportion to yard, would be $1,262.65, which represents what it should have cost under ordinary cirthe total amount expended by the defendant cumstances. He must not be permitted to in error, Luttrell, in filling said lot; that profit either by business ability or otherwise. 14,652 cubic yards went to fill the street, His cotenant, by rules of equity and justice, which, at 1742 cents per cubic yard, would is required to contribute back to him his be $2,564.10. The defendant in error, Lut- proportion of the expense actually incurred, trell, in his amended petition, upon which and no more. He is required to share the trial was had, did not allege that he had in burdens of the expense incurred, and, being cluded any expense of filling any portion of so required, he is in justice allowed the benethe street. His allegation was, in substance, fits that might accrue by reason of the busithat he filled out lot No. 7 to the established ness sagacity of his cotenant making the imgrade, at an expense of $6,825.87. The evi-provements. dence shows that this sum covered the ex- In this case the defendant in error, pense incurred by him in filling both the lot Luttrell, has expended for filling the lot and and the street.

the street the sum of $5,825.87. The plain[1] It is contended by the plaintiff in error tiff in error owns a one-third interest in the that he should not be held liable for any por- lot, and should be required to refund to tion of the $1,000 which the defendant in Luttrell one-third of the expense incurred in error, Luttrell, still owes the North American filling the lot, but nothing for filling the Dredging Company, since it appears from the street, in the present state of the pleadings, undisputed evidence that, as between said as indicated later herein. The defendant in dredging company and Luttrell, the defend- error, Luttrell, still owes the North Ameriant in error, the said $1,000 is barred by the can Dredging Company $1,000 for filling said two-year statute of limitation, and, not hav- lot and street, which amount is barred by ing been paid by the defendant in error, and the two-year statute of limitation, since it there being a legal defense to its payment by became due on July 12, 1909, and had not Luttrell, there should be no contribution re- been paid at the time of the trial of this suit, quired of the plaintiff in error, the expense which was had on the 22d day of March, not having been actually incurred by Luttrell, 1912, nearly three years having elapsed since until he has paid the same. We think this the maturity of the account. Now, the decontention must be sustained. When two fendant in error, Luttrell, has the legal right persons are cotenants in the ownership of to defeat the payment of this claim to said land, and one of them incurs expense in the dredging company by pleading the statute improvement of the property which is neces- of limitation. We would not presume that sary and beneficial, it is equitable that the he would plead the statute of limitation, one incurring the expense shall have con- neither should we assert that he would not, tribution from his cotenant in an amount as he has a legal right to do it. But suppose which is in proportion to the undivided in- he does plead the statute of limitation terest owned by such cotenant; but there is no principle of equity that will permit him the claim; would equity require that the

against the dredging company, and defeats to speculate on the transaction, and require his cotenant to return to him any greater plaintiff in error, Stephenson, refund to him sum than his proportion of the money ac- one-third of this $1,000, disregarding for the tually expended. It is not an undertaking sake of discussion that a portion of it was where he would be permitted to profit in any spent in filling the street, when the amount way except in proportion as his cotenant has never been expended by Luttrell? Would would also make profit. He could not claim a court of equity require the plaintiff in ermore from his cotenant than his proportion ror, Stephenson, to return to Luttrell money of the money actually expended; for equity that Luttrell had never spent for his benefit? only allows a reimbursement of the money All equity should require would be that spent by him in making the improvement. Stephenson refund to Luttrell the money that The law implies a contract between him and Luttrell spent for his benefit. In no cirhis cotenant, authorizing him to spend for cumstances would Luttrell be allowed, while him the money which was necessarily spent, demanding that Stephenson do equity, to but further than this there is no implied con- speculate on him in the transaction. tract. The cause of action allowed in such

It is no answer to this position to say that cases is not grounded on benefits received, Stephenson received the benefits of the $1,000 though this be considered an element neces- which has not been paid by Luttrell, for a suit sary to recovery, for he would not be author- for contribution is not based alone on the benized in law to spend money for his cotenant efits received by his cotenant. For instance, for a useless and unnecessary improvement; the improvements placed on the lot by Lutbut the cause is founded on reimbursement trell, at an expense of $5,825.87, may have for money necessarily, or beneficially spent. been worth much more than that to StephenHe could not contend that he drove a good son, but Luttrell would not be heard to debargain in the improvements, and that they mand it, for this would be speculating on his Tex.)

PARIS & G. N. R. CO. v. FLANDERS

263

tion has no element of speculation in it. In, it was shown that only $4,262.65 went into cases of this kind it is implied that the per- the lot, instead of $6,825.87 alleged by Lutson seeking contribution had authority from trell, the defendant in error. The balance, his cotenant to expend the money that was ac- $2,564.10, went towards filling the street. As tually spent. It is the same as if he had been the evidence of Luttrell about filling the actually instructed by his cotenant to expend street reduced the claim which he had pleadthat much money for him in improving the ed against the plaintiff in error $2,564.10, it lot. This much is implied by law. And if should not be expected that the plaintiff in he spent it, equity would demand that it be error, Stephenson, would object to its introreturned to him; but if he failed to spend duction. But when it was attempted to fasten it, it would be an injustice to say that it on the plaintiff in error the expense of filling should be returned to him anyhow, by his the street, by showing that it was necessary cotenant.

to do so, and a benefit to the lot in order to It follows, from what we have said, that have a way of ingress and egress, the the plaintiff in error, Stephenson, should not plaintiff in error objected, because there was be held, as the judgment of the lower court no pleading to support it. This was the apundertakes to hold him, for the refund to propriate place to make the objection, and we Luttrell of one-third of $1,000, which has not cannot treat the error as having been waived. been expended by Luttrell, and which may We have carefully examined the other asnever be expended by him.

signments, and find no error in them which [2, 3] The recovery in favor of the defend would likely arise upon another trial. ant in error, Luttrell

, against the plaintiff in For the errors indicated, the judgments of error, Stephenson, for one-third the expense the Court of Civil Appeals and of the trial of filling the street adjacent to the lot, should court are reversed, and the cause is remandnot have been allowed; there being no al- ed for another trial. legation in the amended petition by Luttrell upon which the case was tried that he had incurred any expense in filling the street, PARIS & G. N. R. CO. et al. v. FLANDERS. and no allegation that it was necessary to

(No. 2771.) do so as a benefit to said lot. Not having sued for this item, he should not be permitted to

(Supreme Court of Texas. Oct. 20, 1915.) recover it in the state of the pleadings. It APPEAL AND ERROR C 882—INVITED ERROR

SUBMISSION OF ISSUE. is contended that there was no objection on In a railroad switchman's action for injuthe part of the plaintiff in error to the evi- ries, defendant could not complain of the subdence as to the expense incurred in filling mission, as a ground of recovery, of its negli

gence in permitting an engine with a brilliant the street at the time it was offered, and headlight to stand in the yards, though this that by reason of the failure to make a time was not the proximate cause of the injury, ly objection the error was waived. But we where its own requested charges called for a defind from the record that the plaintiff in termination of the same issue of fact. error, Stephenson, did object at the proper Error, Cent. Dig. 88 3591-3610; Dec. Dig. Om

[Ed. Note.--For other cases, see Appeal and time to make the objection. The defendant 882.] in error, Luttrell, testified that the expense of

Error to Court of Civil Appeals of Sixth filling the lot and the street was $6,825.87, all of which had been paid by him, except

Supreme Judicial District. $1,000. There was no objection made to

Action by Charles Flanders against the

Paris & Great Northern Railroad Company this evidence, but when the defendant in er

and others. ror was asked by his counsel whether it was

A judgment for plaintiff was necessary to fill said street as a benefit to affirmed by the Court of Civil Appeals (165

Afthe lot, the plaintiff in error objected to the S. W. 98), and defendants bring error.

firmed. evidence, on the ground that there was no allegation in the pleading to support the

Terry, Cavin & Mills, of Galveston, Anproof. This objection was overruled, and drews, Streetman, Burns & Logue, of Housthe plaintiff in error excepted. The objection ton, and Wright & Patrick, of Paris, for was made at the proper time. It was per- plaintiffs in error. Carlock & Carlock, of missible for Luttrell to testify that the total Ft. Worth, for defendant in error. expense of $6,825.87 covered the expense of filling the lot and the street, and the plaintiff PHILLIPS, C. J. The suit of the defendin error was not called upon to object, for the ant in error, Flanders, for damages on acsufficient reason that the evidence as offered count of personal injuries suffered while enwas contradictory of Luttrell's allegation gaged in his duties as a switchman in the that he had expended said amount in filling employ of the plaintiffs in error, was predithe lot. It established for the plaintiff in er- cated upon two distinct issues of negligence, ror that he only expended in filling the lot a and each of them was submitted by the court portion of the sum; and the evidence went in its general charge to the jury. One was further and established the number of cubic permitting a road engine to stand in the railyards which went into the street, whereby way yards where Flanders was working at night-at the time of his injury setting the is asked to affirm the proposition which is brakes on a car which had been shunted or erroneously affirmed in the given charge. "kicked in" by the switch engine on a side If so, the rule applies; otherwise it does not. track, and which violently collided with an- Making use of that test here, it is maniother car stationary on the track, causing fest that the error of the court in submitting him to be thrown to the ground-with its in the general charge as an issue of neglielectric headlight brilliantly burning, which, gence the presence of the brilliant headlight it was claimed, had the effect of blinding in the railway yards while Flanders was him, and rendering his work dangerous by engaged in his particular duties must be reobscuring his vision, and because of which garded as having been invited by at least he was unable to set the brakes on the car one of the special instructions requested by before the collision.

the railway company. The instruction reThe honorable Court of Civil Appeals, up- ferred to is in the following language: on the original hearing, reversed the judg- "If you should believe from the evidence that ment obtained by Flanders in the trial court the light from the headlight of one of the debecause of the submission of this issue, hold- fendants' locomotives in the yard at the time of

the plaintiff's injury shone on plaintiff while ing that, while there was sufficient evidence he was in performance of his work in such to warrant a finding that this was an act of manner as to render the performance of same negligence, yet, under the evidence, it could dangerous, and if you should further believe

from the evidence that plaintiff had knowledge not have contributed to the injury. On re- of the presence of said light before beginning hearing it affirmed the trial court judgment, his work, or that a person exercising such care because of its view that the error in sub- under the same circumstances would have had mitting the issue had been invited by certain ble effect of said light upon a person attempt

knowledge of the presence, position, and probainstructions requested on the trial by the ing to perform the duties plaintiff was to perrailway company. The writ of error was form on said track, and you further find from granted on this latter ruling. It presents the evidence that plaintiff, in attempting to per

It presents form his duties, under the circumstances, failthe only question which it is necessary to ed to exercise ordinary care for his own safety, discuss; on all other questions the judgment, if he did, or if you believe from the evidence in our opinion, being entitled to affirmance. that by the exercise of ordinary care in the per[1] The rule of invited error rests in the ing his position on the car, if you find he did

formance of his duty, plaintiff could by changprinciple of estoppel ; its reason being that not do so, have avoided the effect of said light a party is in no position to complain of an and danger therefrom, then in event you find error which he has induced the court to comed plaintiff failed to exercise ordinary care;

that in either or all of the instances above nammit. It may easily be carried too far, es- and that such failure, if any, proximately causpecially in the case of requested instruc- ed or contributed to his injury, you are instructtions, which, in general, are as often frameded that same would not bar a recovery by plain

tiff, but the damage, if any, should be diminishby counsel for the purpose of adapting the ed by you in proportion to the amount of neglisubmission of issues to what are understood gence attributed to plaintiff.” to be the views of the court upon the ques- The purpose of this special instruction was tions involved as inducing the submission of the submission of the issue of contributory a particular issue, or an issue in a particu- negligence, predicated upon the plaintiff's atlar way. The consequence of an evident er- tempting the particular work with knowledge ror on the part of the court substantially of the presence of the headlight, or under affecting a party's rights and depriving the circumstances charging him with such knowltrial of the legal character which it is the edge, and in making no effort to avoid its duty of the court to maintain ought not to effect. But in its direction “that, if the jury be avoided by its technical application. For should believe from the evidence that the their elements of finality and conclusiveness light from the headlight shone on the plainthe judgments of courts are dependent upon tiff while he was in the performance of his a legal trial. The conduct of the proceeding work, in such manner as to render its perso as to insure such a trial is an obligation formance dangerous," and should further find resting primarily upon the court itself; and in accordance with the additional part of the the responsibility for the court's action in instruction "a recovery would not be barred," the commission of hurtful errors ought not but the damages should only be diminished in to be transferred to a litigant unless it is proportion to the negligence attributable to reasonably plain that through the action of him, the plain sense of the instruction is that his counsel he is equally chargeable with the on the issue of the headlight the plaintiff was mistake. As applied to errors in the charge entitled to recover in some amount, if the efapparently induced by requested instruc- fect of its presence was to render dangerous tions, the test of the question, therefore, is the performance of his work. By its terms that definitely announced in the thoughtful the recovery by the plaintiff, which it says opinion of Chief Justice Gaines in Railway would not be barred by a consistent finding Co. v. Eyer, 96 Tex. 73, 70 S. W. 529, follow- under the entire instruction, is as definitely ing but limiting Railway Co. v. Sein, 89 Tex. based upon that issue as a diminution of the 63, 33 S. W. 215, 558, namely, whether by damages is related to the issue of contribumeans of a special instruction requested be- tory negligence.

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