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stitute the whole cause of action should occur in a county to give jurisdiction."

our decision upon that point solely upon the ground that the plaintiff's cause of action arose in part in the county where the suit was brought, and not upon any other ground. [3] By several assignments of error, appellant contends that the trial court committed error in permitting the witness Foster to testify concerning the meaning of certain provisions of the written contract. Some, if not all, of the provisions referred to, are ambiguous, in the sense that their meaning is not clear to any one who is not familiar with the preparation of and dealing in cotton seed mill products. However, some of his testimony, for instance that defining what was meant by the letters "f. o. b.," was immaterial. Hence we overrule the assignment referred to.

Since 1879 the law has given jurisdiction to the county where the cause of action or a part 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- | ant in the latter, the cause of action for the recovery of the price accrued in the precinct where the house was to be built, or the breach was committed. In the case cited the plaintiff sought to recover on the ground that 'the cause of action accrued' in precinct No. 1. He failed to do so because it was shown that, while a 'part of the cause of action,' as this term has been defined, 'arose' in that precinct, it 'accrued' in precinct No. 2. There was, then, no law authorizing a recovery by the plaintiff on the ground that a part of the cause of action arose in any locality. In discussing the question in the case cited, the court say: 'When, under the common law, it was required that juries should be drawn from the immediate neighborhood in which the cause of action had arisen, it was found extremely difficult in mixed transactions, which happened partly in one place and partly in another, * to determine where the cause of action did accrue. * The same difficulties now exist in ascertaining the place of a cause of action, and it is a misfortune that the Legislature, in expressing the exceptions, did not employ perspicuous terms,' etc. The difficulty mentioned has been removed by the language giving jurisdiction where the cause of action arose, or a part of it arose, which the Legislature has incorporated in the law since the case of Phillio v. Blythe, supra. That case is plainly distinguishable from the present. In that case the recovery was sought in precinct No. 1, on the ground that 'the cause of action accrued' there. It evidently accrued, as in this case, where the breach was committed, and that was, in the case cited, in the second precinct, where the contract was to be performed. But in the case under consideration the plaintiff seeks a recovery on the ground that a part of the cause of action arose in Howard county, Tex. That a part of it arose in that county is manifest, because, if the facts (the dealings and transactions between plaintiff and Robinson, appellant's agent in Howard county) be eliminated from this controversy, plaintiff could not recover. That part of the cause of action which arose in that coun

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ty is so essential to the existence of the cause without it. It has been held that, where the cause of action, to be within the jurisdiction of the court, must have arisen within its territorial jurisdiction, the phrase means the whole cause of action.' This necessarily includes every fact material to be proved to entitle the plaintiff to succeed, and every fact the defendant would have a right to deny. 3 Amer. & Eng. Enc. Law, p. 46, note 1. It was doubtless one

of action as a whole that there would be none

of the purposes of the Legislature to authorize the plaintiff to sue in those counties where a part of the cause of action arose' against corporations, and not to restrict him to the vigorous requirement that every fact necessary to con

[4-7] We also overrule appellant's contention that, if the plaintiff was entitled to reCover, the measure of damage would be the difference in the cost of shipping the linters from Galveston, and what would have been the cost if they had been delivered at a point covered by the contract. We overrule that contention. The plaintiff had the right to stand on its contract, and it does not lie in the mouth of the defendant to say that, although it breached the contract, if the plaintiff had waived its right to have performance thereof in accordance with the contract, the amount of damage would have been lessened. However, we sustain appellant's contention presented by its eleventh assignment of error, to the effect that the plaintiff could not buy other linters from itself, and hold appellant responsible because of the fact that the linters so bought cost more than the contract price. But that ruling does not require a reversal of the case. The plaintiff's testimony shows that linters of the class contracted for had increased in value to such an extent that, if appellant had complied with its contract, the plaintiff would have sold the linters at a profit equal to the amount of the judgment which was rendered against it. In other words, while the provision in the contract may have authorized the plaintiff to purchase other linters in the open market and hold the defendant liable for the difference between the contract price and the price paid for such other linters, that provision is not mandatory, and does not limit the parties to the remedy thereby conferred. Therefore, conceding that the plaintiff did not comply with that provision of the contract, still its petition was so framed as to entitle it to its common-law remedy, which was the differ

(218 S.W.)

ence in the contract price and the price for which plaintiff could have sold the linters; and the plaintiff submitted testimony which will sustain the judgment upon that theory.

Hence we conclude that no reversible error has been shown, and that the judgment should be affirmed, and it is so ordered. Affirmed.

PEOPLE'S GUARANTY STATE BANK OF
TYLER v. CASTLE et al. (No. 2184.)

(Court of Civil Appeals of Texas. Texarkana.
Feb. 6, 1920. Rehearing Denied
Feb. 12, 1920.)

1. EVIDENCE

65-BANK HELD AS MATTER OF LAW TO KNOW INVALIDITY OF SALE OF

ROAD DISTRICT BONDS ON CREDIT.

A bank, purchasing road bonds under Loc. & Sp. Acts 33d Leg. (1913) c. 70, providing that such bonds be sold to the highest bidder for cash, must be held as matter of law to know that a sale and purchase of the bonds partly on credit, or deferred installment payments, was in violation of the law and void.

2. HIGHWAYS 90-SALE OF ROAD DISTRICT BONDS ON CREDIT VOID.

Under Loc. & Sp. Acts 33d Leg. (1913) c. 70, providing that road district bonds should be sold to the highest bidder for cash, a sale and purchase of the bonds partly on credit, or deferred installment payments, was void.

3. HIGHWAYS 90-PURCHASER OF ROAD DISTRICT BONDS at void SALE LIABLE THEREFOR TO COUNTY.

Where bank bought road district bonds under Loc. & Sp. Acts 33d Leg. (1913) c. 70, partly on credit, or deferred installment payments, and obtained title to the bonds and sold them to another bank, the first bank, even though the sale and purchase of the bonds was void, was liable in debt to the county for the bonds.

4. HIGHWAYS 90-LIABILITY OF BANK FOR
PURCHASE PRICE OF ROAD BONDS SOLD ON

CREDIT AS DEBTOR TO COUNTY AND NOT AS
DEPOSITEE OF COUNTY.

Where bank bought road district bonds under Loc. & Sp. Acts 33d Leg. (1913) c. 70, partly on credit, or deferred installment payments, and sold the bonds to another bank, the sale by the road district and purchase of the bonds by the first bank being void because on credit, the liability of the bank to the county was in the nature of a debt, and an order to presently command the delivery of any money by such bank to the depository of the county could not exist; no money being actually on deposit in the bank.

5. APPEAL AND ERROR 954(1)-EXERCISE OF DISCRETION BY TRIAL JUDGE IN RESPECT TO

TEMPORARY MANDATORY INJUNCTION NOT DIS

TURBED.

An appellate court will not ordinarily interfere with the exercise of discretion by a trial judge in respect to a temporary mandatory in

junction in vacation, unless a right is clearly shown to exist to which recognition has not been properly accorded.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Suit by the People's Guaranty State Bank of Tyler against W. R. Castle and others. Judgments for defendants, and plaintiff appeals.

Affirmed.

The People's Guaranty State Bank of Tyler, Tex., brought the suit against the county judge and the commissioners' court of Smith county and the First National Bank of Troup, Tex., seeking a temporary mandatory injunction, and on a final hearing for the order to be made permanent to compel the payment to the county treasurer of Smith county of the proceeds derived from the sale of certain road bonds, to the end that the money would be, as the law directs, turned over to appellant, the depository of said county. The judge in vacation heard the testimony on the application, and refused to grant the temporary injunction. The judge made findings of fact substantially as 'fol

laws:

That Smith county is acting under a special road law of the Thirty-Third Legislature (see Acts of the 33d Legislature p. 262), and under that law any defined road district of Smith county may issue bonds for the purpose of constructing, maintaining, and operating public roads in such district. The act authorizes and continues the custody of the bonds in the commissioners' court of the county until by that court sold to the highest and best bidder for cash, either in whole or parcels, at not less than their par value. An election was duly and legally held in Troup road district No. 6, of the said county, on November 3, 1917, and a twothirds majority of the legal votes cast at the election were in favor of the issuance of bonds in the district in the sum of $100,000. The First National Bank of Troup bid on the bonds par and accrued interest to the date of the delivery of the bonds to an amount aggregating $105,472, less $1,150 costs and attorney's fees incurred by the bank, the same to be paid by the bank as follows: $4,322 cash, and the remainder in 20 equal installments of $5,000 each, the first installment due and payable on June 1, 1919. The commissioners' court approved the sale, and the First National Bank of Troup executed a personal bond to the county judge to secure the payment of the deferred payments. The People's Guaranty State Bank of Tyler, Tex., was appointed the depository of all the funds of Smith county for a period of two years from February, 1919. The First National Bank of Troup, after the bonds were delivered to it by the commissioners' court, sold the bonds to the City National Bank of

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

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 de commissioners' 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 application for a temporary mandatory injunction, upon the ground that the First National Bank of Troup was entitled to a trial at the regular term of the court upon the validity of the contract of sale of the bonds.

Simpson, Lasseter & Gentry, of Tyler, for appellant.

Marsh & McIlwaine and J. A. Bulloch, all of Tyler, for appellees.

LEVY, J. (after stating the facts as above). The prayer of the application in this case is: "To grant a temporary mandatory injunction commanding the defendants to pay the county treasurer of Smith county the remainder of the proceeds derived from the sale of the bonds."

And the application alleges that:

"The proceeds derived from the sale of the bonds at this time amounts to $95,000, which sum is now on deposit in the defendant bank

to the credit of road district No. 6 of Smith 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 holding the purchase price of the bonds on deposit to the credit of the road district, but owed a debt to the county commissioners' court which was contracted by the commissioners' court under the sale and delivery of the bonds to the First National Bank of Troup for par value and accrued interest to date of the delivery, and that the said debt was not yet due. The transaction as made by the hearing then rested purely in contract, and there is involved the question of the validity of the contract. Under the terms of the special road law authorizing the issuance of the road bonds an undoubted power existed on the part of the commissioners' court to sell the bonds and at the aggregate price sold. But under the further terms of the law it is expressly provided

that:

"Such bonds shall be by said court sold to the highest bidder and best bidder for cash, either in whole or in parcels at not less than their par value." Section 16.

bank on the contract of sale, then the subse-
quent sale to the Dallas bank is only the
fruit of the contract available to the Troup
bank, and not to the road district. The en-
forcement of the liability for the original
purchase by the Troup bank is, in the cir
cumstances, in the nature of enforcing the
There being no money
payment of a debt.
actually on hand on deposit, an order to
presently command the delivery of any mon-
ey would not exist. The claim of the county
being in the nature of a debt, and the money
not being actually on deposit in the First
National Bank of Troup, we do not think
that the trial judge erred in holding that
the temporary mandatory injunction should
not issue in advance of a final hearing of
the case. The appellate court will not ordi-
narily interfere with the exercise of discre-
tion by a trial judge in respect to a tempo-
rary mandatory injunction in vacation, un-
less a right is clearly shown to exist to which
recognition has not been properly accorded
by the trial judge.

The judgment is affirmed.

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1. NOVATION 5

NEW CONTRACT WITH BANK AS TO PAYMENT OF COMMISSION SUBSTITUTED FOR OLD ONE EXTINGUISHES PURCHASER'S LIABILITY UNder old one.

Where purchaser and broker, whose commission purchaser had agreed to pay, entered into a new contract, pursuant to which the amount of the commission was deposited in a bank to broker's credit, to be paid to broker by bank on a certain contingency, the new contract extinguished the old, and substituted the bank as the debtor; broker's cause of action for the commission thereafter being against bank and not purchaser.

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For 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 were dismissed except S. D. Meador. It is substantially alleged: That Rudolph, the plaintiff, resided in Sherman county, Tex., and that the defendants Meador, against whom the suit was prosecuted to judgment, and all the other defendants dismissed resided in Montague county, Tex. In the early part of the year 1902 plaintiff was conducting a real estate business in Sherman coun

Novation is effected by the substitution of a new obligation, between the same parties, with the intention to extinguish the old one, or by the substitution of a new debtor with the intention to release the old one, or by the substitution of a new creditor with the intention to transfer the rights of the old one to him. 4. NOVATION 7-ACCEPTANCE MAY BE IMPLIED FROM CIRCUMSTANCES AND CONDUCT OF It is not essential that assent to the accept-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 the words and the circumstances and the conduct of the parties. 5. VENUE 8

PARTIES.

ACTION FOR CONVERSION

PROPERLY BROUGHT IN COUNTY OF DEFEND

ANT'S RESIDENCE.

then resided in El Paso, Tex., for the sale of seven sections of land in Sherman county. On the 15th day of February, 1902, Taylor, through the plaintiff as agent, entered into a contract in writing with T. S. and S. D. Meador, whereby Taylor sold to said, parties 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.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Novation.]

On Motion for Rehearing.

price, and that Taylor should furnish an abstract of title, and upon examination thereof, if the title was shown to be without defect, or if pronounced by expert legal opinion satisfactory, they should remit the sum

6. Banks and BANKING 153-DEPOSIT TO of $5,659.27 to the Lowden National Bank of

BE PAID THIRD PARTY UPON CERTAIN CON-
TINGENCY NOT A SPECIAL DEPOSIT IN ITS
RESTRICTIVE SENSE.

Deposit in bank to credit of another person, to be delivered to such person by bank upon depositor being successful in pending suit against him, was not a special deposit in its restrictive sense, requiring the thing deposited to be safely kept and the identical thing returned, but was a special deposit in the sense

that it was for a specific purpose, making bank liable to third party upon payment to depositor in violation of the contract between the parties with reference to the deposit.

El Paso, Tex., for Taylor, and at the same time remit to plaintiff at Stratford, Tex., $968.09. That at the time of signing the contract the defendant paid $100 of the $968.09, leaving a balance owing of $868.09, for which they were liable under the contract, which had not been paid, though demanded. The contract is made an exhibit to the petition.

It is further alleged Taylor and plaintiff complied with the contract, and prepared and furnished an abstract of title as it appeared 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.

Action by C. F. Rudolph against S. D. Meador and others. Action dismissed as to defendants not named. From judgment for plaintiff against named defendant, the latter appeals. Reversed and remanded, with instructions.

Davis & Davis, of Gainesville, for appellant.

W. I. Gamewell, of Dalhart, for appellee.

HUFF, C. J. This action, as originally instituted in the district court of Sherman

clared it met the requirements of the contract, which was accepted by the defendants; that Taylor executed and delivered to defendants deeds to the land, which they accepted, and paid Taylor $5,659.27 as stipulated in the contract, but failed to pay plaintiff the sum of $868.09, remaining due according to the contract; that pending their default in this regard Taylor's wife, Mrs. Florence Taylor, brought suit against the Meadors, setting up that the land was her separate property; that long litigation resulted from the suit. On final result of the

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

subject to the use and to the order of Meador Bros., for which reason the defendants were estopped from invoking the statute of limitations on the contract of February 15, 1902, which is sought to be enforced against them. It is then alleged Meadors and the bank conspired, and did fraudulently cause, said escrow money to be paid over to them by the bank, fraudulently and wrongfully, and concealed that fact from plaintiff. Judg ment is sought for $868.09, with interest, and to foreclose a vendor's lien on the land, which was decreed to the Meador Bros. in the suit referred to, or to foreclose an equitable lien.

The appellant, defendant below, excepted to the petition, for that it appears therefrom that defendant's residence is in Montague county, Tex., and that none of the exceptions to exclusive venue existed in the cause; and, further, it appears that the agreement of February 15, 1902, was abrogated by subsequent agreement, which last agreement was not to be performed in Sherman county. Appellant also pleaded his right to be sued in the county of his residence, Montague county, which pleading was in the usual form, complying with the statutes for such pleas. Subject to the exception as to venue and the plea of privilege to be sued in the county of his residence, the defendant answered by general and special exceptions and by general and special pleas in bar, which will not be noticed at this time. It appears from the record all pleas, that of privilege and others, were submitted at one time, except that the exception to the petition as to the venue of the case, as stated in the answer, was overruled by the court.

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 91723/667650 interest awarded to Mrs. Taylor. The defendants are charged with a deliberate, willful breach of the contract on the 10th day of March, 1902, and consequent damages by failing to send the money to plaintiff on that date. Plaintiff after that date frequently demanded payment, but some months after the amount should have been paid, in pursuance to a verbal promise, made by the Meadors, that they 'would deposit $968.09 in the First National Bank of St. Joe, Tex., to the credit of plaintiff on condition, and not subject to check or withdrawal by him, “and represented to him [plaintiff] that same was in escrow, and was deposited by them to await the judgment and result of the suit by Mrs. Taylor against them and Taylor for the land above referred to, and that, if said suit should result in their favor, said bank was instructed to, and would, pay said sum to plaintiff, and, if it resulted unfavorably or against them [T. S. and S. D. Meador], the bank was instructed to, and would, return said deposit to them, the Meadors." The bank furnished the plaintiff a deposit slip in the usual form, with the notation thereon "on conditions not subject to check." It is alleged that it was found that the $968.09, after its deposit, was too much by $100, which had been paid to Rudolph when the contract was signed, and at the request of the defendants plaintiff gave an order to the St. Joe bank to pay back to defendants the $100, and to hold thereafter $868.09, which the bank did, and it is alleged that, by reason of the representations of defendants to plaintiff and of said deposit and deposit slip, and plaintiff's confidence in defendants, "plaintiff acquiesced in same, though unwillingly and under protest, T. S. and S. D. Meador entered into a writand was persuaded by said Meadors, and at ten contract with J. W. Taylor, dated Febtheir 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 Tayagainst 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 fursince 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 made in good faith, and that it was not subject to the decision of the courts in the suit,

"shall thereupon execute a warranty deed," conveying "said tracts of land to the said T. S. & S. D. Meador at El Paso, Tex., upon

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