Volume 250 — South Western Reporter

H. Stark, Judge. Action by Garland Smith individually and as trustee against A. J. Peavy, trustee, and others. Prom judgment for plaintiff, defendants appeal.

<p>Appeal from District Court, Milam County; John Watson, Judge.</p> <p>Suit by S. J. Slocomb against L. L. Blaylock and others for an injunction. From an order perpetuating the injunction, defendants appeal.</p>

Suit by A. Domenici and others, composing ’a partnership and doing business under the firm name of the Oldsmobile Sales Company, against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.

<p>Master and servant <&wkey;285(5), 286(3, 28)— Directed verdict for defendant held proper, where employé injured by examining explosive picked up by fellow employé.</p> <p>In car repairer’s action for injuries from an aero bomb or cap, which exploded when he was examining it, on evidence tending to show that the explosive was lost from a bad order car of explosives when its contents were transferred in the railroad yard to another car; that it had been picked up by yard employés and placed in a trash pile; that it was found there by a fellow car repairer, who pulled off a tape wound round the cap and brought it to plaintiff, who was injured when he struck it with a hammer endeavoring to take it apart, held, that neither the issues; of negligence in not furnishing a safe place to work, nor negligence in transporting the explosives without first preparing it so that it could not be exploded, nor the issue of proximate cause, should have been submitted to the jury; hence directed verdict for defendant was proper.</p>

<p>Appeal from Coleman County Court; L. G. Mathews, Judge.</p> <p>Suit by R. C. Bull against the Novice State Bank. From a judgment for a sum less than prayed for, plaintiff appeals.</p>

Suit by Ella Hobson and husband against Ida Barnes, administratrix of the estate of T. W. Barnes, deceased. From a judgment for plaintiffs in part, plaintiffs and defendant appeal.

<p>Appeal from District Court, Coryell County; J. R. McClellan, Judge.</p> <p>Action by Chris Haverbekken against W. W. Hollingsworth and another. From judgment below, plaintiff appeals.</p>

<p>Appeal from District Court, Reeves County ; Chas. Gibbs, Judge.</p> <p>Suit by Pecos County against Brewster County. From a judgment for defendant, plaintiff appeals.</p>

L. Manry, Judge. Suit by the Consolidated Underwriters against Ada Saxon and others to set aside an award of the Industrial. Accident Board. Judgment for defendants, and plaintiff appeals.

<p>1. Landlord and tenant <&wkey;18(3)— Evidence of relation held sufficient.</p> <p>In an action by a bank against vendees of a tenant for conversion of cotton bn which the tenant had given the bank a mortgage securing notes, defended on the ground that the money paid for the cotton went to extinguish a landlord’s lien for furnishing supplies to the tenant, evidence that one to whom the tenant was indebted for supplies, and to whom his share of the proceeds for the cotton was paid, was the tenant’s landlord, held sufficient.</p> <p>2. Landlord and tenant <&wkey; 1— Delivery of land by owner to control of another to rent held to make the other landlord as to renter.</p> <p>If a landowner delivers land into control of another to use as his own and to receive the benefits of its production, and he rents it to a third person, the one to whom the land is delivered would be the landlord, and the third person his tenant.</p>

<p>1. Judgment &wkey;>251 (1)—Judgment held erroneous as not supported by pleadings.</p> <p>In an action on a note executed by three of four defendants in part payment for an automobile and to foreclose a chattel mortgage thereon, where two of the three set up a cross-action against the fourth to whom the automobile was sold in part consideration of his assumption of the notes, a judgment for plaintiff against all the defendants and in favor of all three makers of the note against cross-defendant held erroneous as against the latter in favor of plaintiff in the main action except for foreclosure, and in favor of the defendant, who did not join as cross-complainant in the cross-action; there being no pleadings to support the judgment in such particulars.</p> <p>2. Appeal and error <&wkey;1071(1)—Form of special issues and sufficiency of evidence to support findings held immaterial in view of finding on preceding issue.</p> <p>In an action on a note executed by three off four defendants in part payment for an automobile, which two of the three makers of the-note alleged, in a cross-action against the fourth defendant, had been sold to him in part consideration of his assumption of the notes, where the jury found in answer to a special issue that he did so agree, the form of a second issue as to whether a named individual so agreed for him and had actual or apparent authority to do so, and the sufficiency of the evidence to support affirmative findings thereon, were immaterial.</p> <p>3. Frauds, statute of <&wkey;4 8 (3) — Buyer’s oral assumption of purchase-money notes given by seller held not within statute; “promise to answer, for debt of another.”</p> <p>An oral agreement by purchaser of automobile to assume payment of purchase-money notes given by the seller in part payment for the car held, not unenforceable as a promise to answer for the debt of another in violation of Rev. St. art. 3965.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Promise to Answer for Debt, Default, etc.]</p> <p>4. Sales <&wkey;355 (I) — Violation of act requiring transfer of license fee receipt on sale of secondhand automobile available as defense to cross-action against purchaser assuming notes executed therefor by sellers, though not pleaded, if shown by evidence admitted without objection.</p> <p>Violation of Acts 36th Leg. (1919) c. 138, f§ 3a, 3b (Vernon’s Ann. Pen. Code Supp. 1922, arts. 1617%c, 1617%d)', prohibiting the sale of secondhand motor vehicles without possessing and indorsing over the receipt for the current year’s license fee, is available as a defense to a cross-action by defendants sued on purchase-money notes given for such a car against one to whom they sold it in part consideration of his assumption of the notes, though not pleaded, if affirmative evidence of such violation is admitted without objection.</p> <p>5. Contracts 138(6) — Illegality must be pleaded if dependent on facts extraneous from contract itself or evidence necessary to prove it.</p> <p>If plaintiff, to make out his cause of action, must show that the contract is illegal, the court will not enforce it, whether such fact is pleaded as a defense or not, but when the illegality does not appear from the contract itself or the evidence necessary to prove it, but depends on extraneous facts, the defense is new matter and must be pleaded to be available.</p> <p>6. Sales <&wkey;357(l) — To defeat recovery of purchase price of secondhand autpmobile, buyer must prove sellers’ violation of act requiring possession and transfer of license fee receipt.</p> <p>To recover the purchase price of a secondhand automobile, the unpaid consideration for which is not evidenced in writing, plaintiff need only prove execution and delivery to vendee of a duplicate bill of sale in the form prescribed by Acts 36th Leg. (1919) c. 138, § 4 (Vernon’s Ann. Pen. Code Supp. 1922, art. 1617¾f), and the agreed unpaid consideration, whereupon it ds incumbent on defendant, to defeat recovery on the ground of violation of such act, to plead and prove the sellers’- violation of sections 3a and 3b (articles 1617%c, 1617¾d), requiring actual possession and transfer by indorsement of the receipt for the current year’s license fee; such matters being extraneous and incidental to the contract, in making which the sellers will not be presumed guilty of a criminal offense.</p> <p>7. Evidence <&wkey;4l9(4) — Evidence of assumption of notes sued on by subsequent purchaser of automobile for which they were given held not in violation of parol evidence rule.</p> <p>In an action on notes given for a secondhand automobile, which the makers of the notes sold to a codefendant, against whom they brought a cross-action, where the bill of sale recited that the consideration was “$600 and other good and valuable consideration,” as prescribed by Acts 36th Leg. (1919) c. 138, § 4 (Vernon’s Ann. Pen. Code Supp. 1922, art. 1617¾f), evidence of the buyer’s assumption of the notes held not in violation of the parol evidence rule.</p> <p>8. Bills and notes <&wkey;54 — One assuming payment of notes sued on is liable, though he did not sign them.</p> <p>The Negotiable Instruments Act (Acts 36th Leg. [1919] c. 123, § 18 [Vernon’s Ann. Civ. St. Supp.' 1922, art. 6001 — 18]), declaring no one liable on an instrument not signed by him except as otherwise provided, is inapplicable in an action on notes given for an automobile subsequently sold by the makers to another, against whom they brought a cross-action based on his assumption of the notes; his liability' being, not on the notes, but on an independent assumption to pay them.</p>

<p>1. Trial <&wkey;253(9') — Refusal to give instruction withdrawing evidence of past and present earning capacity held not error.</p> <p>In an action for injuries, refusal to give instruction that in assessing damages the jury should not take into consideration, as an element of damages, profits plaintiff might have made from the sale of automobiles in his business or by him personally, held not error where the effect of such instruction would have directed the jury that testimony as to amounts earned by plaintiff individually could not be used in considering any item of damages which he was entitled to, such as damages for impaired earning capacity which could only be measured by the extent of his diminished earning capacity.</p> <p>2. Damages <&wkey;38 — “Earning capacity” defined.</p> <p>“Earning capacity” does not necessarily mean the actual earnings that one who suffers an injury was making at the time the injuries were sustained, but refers to that which, by virtue of the training, the experience, and the business acumen possessed, an individual is capable of earning.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Earning Capacity.]</p> <p>3. Damages <&wkey;l73(l)— Evidence of what injured party could formerly do and present capacity held proper.</p> <p>Whether an injured party has been working for a salary or whether he has been working in his own business, the only basis upon which a jury can determine his loss is from evidence of what use the injured party has previously made of his capabilities and opportunities in the way of earning power and compare it with what use he is capable of making of his impaired powers after injury had been received.</p> <p>4. Damages <&wkey;2I6(8) — Instruction as to diminished earning capacity of injured held not objectionable.</p> <p>In an action for injuries, an instruction allowing plaintiff “for his diminished capacity to labor and earn money in the future” on account of his injuries held not objectionable in that a jury could understand from it that testimony regarding.plaintiff’s lost profits in his business was to be taken as fixing the_ amount to be allowed for impairment of earning capacity.</p> <p>5. Trial &wkey;260(8) — Refusal to give instruction as to defensive matter pertaining to injuries in previous accidents held not error in view of charge given. ,</p> <p>In an action for injuries received in a collision in 1920, refusal of requested charge that, if the jury were unable to determine whether certain injuries of plaintiff were received in the accident of 191% or 1913, or that of 1920, no recovery could be had for those injuries, nor if plaintiff’s present condition was due to former injuries, held not error in view of charge given.</p> <p>6.Appeal and error (&wkey;230 — Objection to testimony after witness had answered question held not ground for error.</p> <p>Objection to doctor’s testimony as to condition of plaintiff’s heart held made too late as ground for assigning error, where the objection was not made until the witness had answered the questions to which no previous objection was made.</p> <p>7⅛ Damages <&wkey;l58(2) — Admission of testimony ; of doctor as to condition of plaintiff’s heart held warranted by pleadings.</p> <p>Testimony of doctor that plaintiff’s heart was in fair condition only suffering from neurosis, and that by neurosis witness meant “it was a little rapid,” Iheld warranted by the pleadings, alleging internal injuries, and that plaintiff was injured in almost every part of his body, causing a terrible shock to his entire nervous system.</p> <p>8. Damages <&wkey;132(4) — Verdict of $11,500 held not excessive for permanent internal injuries.</p> <p>Verdict of $11,500 for permanent internal injuries received in street car collision held not excessive and supported by evidence.</p> <p>9. Appeal and error <&wkey;1001 (I) — Finding of jury binds appellate court.</p> <p>Where there is evidence to support a jury’s finding, it is binding on the appellate court; it being the province of the jury to decide whether the evidence was worthy of belief.</p>

<p>I. Judgment <&wkey;248 — Must be based on both pleading and evidence.</p> <p>A judgment is sustainable only when it has a proper basis in both pleading and evidence. '</p> <p>3. Judgment <&wkey;255 — Finding on issue net supported by any evidence does not authorize judgment.</p> <p>In an action on a note, where defendant alleged, in one count of his answer, that he had indorsed and transferred to plaintiff two notes payable to defendant, in part payment of the note sued on, and, in another count, that such notes were assigned as additional security for payment of that sued on, that plaintiff promised to collect them, but failed to do so or to notify defendant, as indorser, under Negotiable Instruments Act, § 1, of their nonpayment, as required by sections 89, 102, and 103, but the only evidence was in support of the latter count, the court erred in rendering judgment on the jury’s finding that the notes were not delivered as part payment for the property for which the note sued on was given.</p>

Error from Callahan County Court; J. R. Black, Judge. Suit by Higginbotham Bros. & Co. against R. M. Boyd, in which the Security State Bank & Trust Company and others were garnisheed. A default judgment for plaintiff against named garnishee, and the named garnishee brings error.

A. Hill, Judge. Suit by Briggs Owen and others, taxpayers of Eastland county, against Fleming-Stitzer Road Building Company and others to annul and have declared void a contract between Eastland county and the named defendant. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Hood County; J. B. Keith, Judge.</p> <p>Suit by Wood -R. Alexander against Mc-Elwrath & Rogers and another. From judgment for plaintiff, the named defendants appeal.</p>

A. Hill, Judge. ' Action between the Citizens’ State Bank of Toyah, Tex., and C. W. Porter and another. From adverse judgment, Porter appeals. On motion to dismiss the appeal.

<p>Replevin <©=> 123 — Agreed judgment between plaintiff and defendant in replevin held not void as to nonoonsenting surety on plaintiff’s bond.</p> <p>An agreed judgment rendered against a principal defendant and his surety on a re-plevin bond providing for a stay of execution is not void as to the nonconsenting surety, in view of Rev. St. art. 258, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2393.</p> <p>Conner, C. J., dissenting.</p>

<p>1. Municipal corporations <®=»993(l) — Elector and taxpayer cannot sue to enjoin proceedings for recall election without allegations that he has an interest in the controversy not held by others.</p> <p>An action to restrain a city clerk from presenting to the city commissioners a petition for a recall election cannot be brought by a qualified elector and taxpayer, in the absence of allegations that he has an interest in the controversy not held by other electors and taxpayers.</p> <p>2. Municipal corporations <©=jI59(I) — Failure of city commissioners to meet during week after filing of petitions for recall election not willful refusal to receive petitions. .</p> <p>Failure of city commissioners to meet during .the week immediately subsequent to the filing of petitions for recall election did not, in the absence of any allegations or proof of fraudulent' purposes in failing to so meet,, constitute willful refusal to receive the petitions and to order the- election under provision of city charter authorizing the county judge to order the election on the failure or refusal of the commissioner to so do on presentation of properly signed petition.</p>

<p>Appeal from District Court, Dallas County ; E. B. Muse, Judge.</p> <p>Action by J. F. Fugitt against H. T. Farrell. Judgment for defendant, and plaintiff appeals.</p>