(248 S.W.)

found by the court in such manner as to sup- | control of the business of the company. port the judgment if there is evidence to sup- That appellee has never returned nor ofport such implied findings, and, if issues sub- ferred to return the check or proceeds. mitted are immaterial, the verdict thereon is in law no verdict in the case, and, if a recov- That, at the time of the delivery of the ery is allowable on other issues or undisputed check by appellant, the other defendants had evidence, and no request was made for their money or property out of which the indebtedsubmission, it is the court's duty to so render ness could have been collected, and did not judgment. have money or property sufficient to satisfy the same at the date of the filing of the suit.

Appeal from Coleman County Court; L. G. Both parties moved for judgment on the verMathews, Judge.

Suit by the Coleman Abstract Company against G. Wm. Baker and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Baker & Weatherred, of Coleman, for appellant.

lee.

dict. The motion of appellant was denied, and the court, upon such findings and upon the facts and evidence in the case, rendered judgment for appellee.

It is manifest that the court did not base the judgment upon the findings of the jury, as they were practically all favorable to

Critz & Woodward, of Coleman, for appel- appellant, but upon the theory that the agree

ment and release found by the jury was without consideration, or that the general manager was without authority to release appellant, or upon both such grounds. The evldence supports the findings of the jury, but, as will be hereafter indicated, it also supports the conclusion that there was no consideration, and that the agent had not the authority to release appellant, at least without a consideration. Neither party requested that either of these last two issues be submitted to the jury, although appellant did ask an instruction defining what would con

In Simmons Hardware Co. v. Adams (Tex. Civ. App.) 147 S. W. 1196, this court recognized the following rule:

"The payment of the part of a debt which is

* undisputed is not a sufficient consideration to support a promise to accept the same in full payment of the debt. In such a case the creditor has done no more than he was already legally bound to do"-citing numerous

authorities.

BRADY, J. The suit was brought in the justice court, and later tried in the county court on appeal. Appellee as plaintiff sued F. L. Wade, W. M. Hooper, and G. Wm. Baker, the appellant, as members of the firm of Mid-Continent Oil Lease Exchange, for a balance on account for abstracts furnished such firm. Defendants Wade and Hooper suffered judgment by default. Appellant defended on the ground that he had paid to appellee the sum of $73.17 as his proportionate one-third of the account, with the under-stitute consideration. standing and agreement with appellee's agent and general manager, E. P. Scarborough, that such sum was accepted in full of all claims against appellant arising out of the account. He further alleged that Wade and Hooper were solvent at the time he made such payment, and that appellee failed to bring suit against them until they were in solvent, which condition existed at the trial: and that appellee had' retained the amount paid by appellant, had never repaid nor offered to repay the same, and was therefore estopped. There was no sworn denial of the partnership. By supplemental petition, appellee pleaded, want of consideration for the agreement and release, if it was ever made, and also pleaded that its general manager had no authority to make such agreement. The case was submitted to a jury upon special issues, and the answers were, in substance, as follows: That the general manager of appellee agreed with appellant to release him from further liability, upon the payment of one-third of the account, which was paid by appellant in reliance upon such agreement, and was accepted by the general manager as full payment of appellant's liability. That appellant would not have paid In Ferguson v. Garrett (Tex. Civ. App.) such sum if the general manager had not 235 S. W. 245, the court recognized the genpromised to accept it in full settlement as to │eral doctrine, but found that there were lehim, and that Mr. Scarborough was the gal considerations to support the agreement. general manager and in sole charge and Cases cited by appellee are: Bergman Prod

It is true that in the later case of Schulze v. Waco Land & Trust Co. (Tex. Civ. App.) 177 S. W. 157, the doctrine was criticized, and very respectable authorities cited denouncing the rule. However, this court again recognized that such was the rule generally prevailing, although finding it unnecessary to decide the question.

In the case of Rotan v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586, it was said:

"The least consideration, however, in such a case [where the creditor has agreed to accept part in payment of the whole] is sufficient to make the agreement binding."

In that case the court found that there was ample consideration.

Appellee had the legal right to forbear suit so long as it pleased, and was not under obligation to appellant to sooner bring an action.

uce Co. v. Brown (Tex. Civ. App.) 156 S. W. | payment and the date the suit was instituted. 1102; Id. (Tex. Civ. App.). 172 S. W. 554; Simmons Hardware Co. v. Adams (Tex. Civ. App.) 147 S. W. 1196; Rotan Grocery Co. v. Noble, 36 Tex. Civ. App. 226, 81 S. W. 586; Bowdon v. Robinson, 4 Tex. Civ. App. 626, 23 S. W. 816; Clifton v. Foster (Tex. Civ. App.) 20 S. W. 1005; Schulze v. Waco Land & Trust Co. (Tex. Civ. App.) 177 S. W. 157; First Texas Prudential Ins. Co. v. Connor (Tex. Civ. App.) 209 S. W. 417; Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1016; Graham v. Kesseler (Tex. Civ. App.) 192 S. W. 299; 1 C. J. 539, 540; 1 Elliott on Contracts, §§ 217, 2076; 1 R. C. L. 184, § 15.

[1] Whatever may be said of the justice or logic of the rule in question, it is undoubtedly recognized in this state, and must be enforced in a proper case. In the instant case we have not been able to find in the evidence any proof of a consideration valuable or good in

law. Appellant was originally liable for the entire debt as one of the partners. His payment of one-third of the amount was nothing more than he was already legally bound to do. There was thereby no disadvantage to him, except as is always present when a debtor pays out money. Appellee received only a part of what was legally due from appellant, and there was no advantage to it thereby, except as is always the case when a creditor receives payment of part of a debt. So far there was not, in the legal sense, any advantage to the creditor or disadvantage to the debtor which would furnish a consideration.

[2] It is argued, however, that at the time the check was given by appellant his copartners were solvent and had property subject to execution, and that at the time the suit was filed, and at the date of the trial, they had become insolvent, and that this change of situation furnished a legal consideration. We cannot assent to this proposition. The question of consideration must be determined as of the date of the agreement, and there could be no binding accord and satisfaction because of a subsequent change in the financial condition of the copartners, especially so since appellant 'testified and the jury found that he would not have paid the debt at the time he did pay a part, or prior to the institution of the suit, but for the agreement to release him. He would have had no cause of action against his copartners, at the time of the payment, for contribution, since he had not and would not have paid the whole debt. There is no evidence to show that if appellee had not made the agreement to release appellant would have paid the entire debt, and would have sued his partners for contribution. Therefore it follows that he lost nothing by the change in the financial condition of his co-obligors between the date of the

[3] As to the question of authority of the agent, we are not prepared to agree with ap pellee that the general manager was without authority to make a compromise or settlement, if one was actually made for a valuable consideration. He was the general manager of the business, with full charge and control over it, and was not merely an agent to collect. His authority was coextensive with the power of the corporation itself, by virtue of his general agency, as to all matters with

Manhattan v. Stubbs (Tex. Com. App.) 234 in the scope of the business intrusted to him. S. W. 1099. But certainly this was the limit of his authority. We doubt whether the di

have had the power to release an undisputed rectors of the corporation themselves would debt, upon the payment of a part only by one liable for it all, unless there was some consideration for the agreement. Such a transaction would amount substantially to a gift of the property of the corporation. Since the agreement would not have been binding upon the principal, the debt being undisputed and the payment being only a part of it, the agent could not bind the principal, in the absence of a consideration.

[4] We see no room for the application of the doctrine of estoppel in this case from any of the facts stated, or from the failure of appellee to return any part of the payment to appellant. Appellant received the benefit of the payment in the application of it as a credit on the account, and was not entitled to a return thereof.

[5] The court below rendered the proper judgment upon the undisputed facts, notwithstanding the findings of the jury favorable to appellant, and the judgment should be affirmed, unless the fact that this was a jury trial would prevent such result. Under the statute governing the submission of special issues, all issues of fact not submitted and not requested to be submitted are to be deemed as found by the trial court in such manner as to support the judgment, where there is evidence to support such implied findings. Therefore if the issues actually submitted and found by the jury are immaterial, the verdict of the jury thereon is in law no verdict in the case. Findings upon immaterial issues could afford no basis for judgment, and if the plaintiff was entitled to recover upon other issues, or upon the undisputed evidence, and no request for their submission has been made, it was the duty of the court to so render judgment. Our views upon this question have recently been expressed in Ferguson v. Kuehn, 246 S. W. 674, in an opinion rendered

(248 S.W.)

October 11, 1922, and not yet [officially] re-to extend its corporation lines for school purported. It is true that, on rehearing in that poses only, a city, which has assumed control case, we decided to reverse and remand the of its schools, extended its boundaries, and cause, but not because of any change of view issued bonds for the purpose of erecting a high school building, thereby included within its on the question just discussed. The cause corporate limits for such purpose the added was remanded because, upon further consid- territory, so that the proceeds of the bond iseration, we thought certain issues found by sue properly went into the city treasury, rather than to the district board of trustees. the jury might be regarded as material. 4. Schools and school districts 30-Boundaries of municipal district include territory added for school purposes only.

There is nothing in the holding of this court in Scott v. Bank (Tex. Civ. App.) 66 S. W. 493, that conflicts with the conclusions announced here. In that case, it was held that it was the duty of the court, in a special issue case, to render judgment in conformity with the verdict, or to set it aside where the findings were upon material issues. The decision did not require that alternative where the findings are wholly upon immaterial issues.

Believing that the trial court rendered proper judgment, that no reversible error has been shown, and that we have the authority to affirm the case, the judgment will be affirmed. Affirmed.

POTEET et al. v. BRIDGES et al.
(No. 6661.)

(Court of Civil Appeals of Texas. Austin.
Jan. 24, 1923.)

I. Schools and school districts 25-City as suming control of schools becomes itself a school distrct, and yet remains a municipal corporation.

A city, by assuming control of the public schools within its limits, under Rev. St. art. 2874, does not thereby create a public school district separate from itself, but under Vernon's Ann. Civ. St. Supp. 1922, art. 2815c, it becomes itself a public school district, and by becoming such does not cease to be a municipal corporation, but adds an additional corporate function.

2. Schools and school districts 67-City, assuming control of schools, given power to select sites and erect buildings.

A city, which has assumed control and management of public schools, under Rev. St. art. 2874, is vested with the power to select sites for school buildings and to erect such buildings.

3. Schools and school districts 110-City extending limits for school purposes held to retain control and management of schools in added territory, so that proceeds of bond issue went to city treasury.

Under Rev. St. art. 2874, providing that cities which assume control and management of public free schools within their limits may provide sites and buildings in the manner and under the restrictions provided by article 925, and under article 2883, permitting a city that has taken charge of schools within its limits

Under Rev. St. art. 925, as amended by Acts 1917, c. 14, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 925), and Rev. St. 1911, art. 2883, where a city has assumed control of its public schools under Rev. St. art. 2874, and for school purposes extended its city limits under article 2883, it becomes for school purposes a municipal district, and for such purpose its boundaries are coincident with its boundaries as extended for school purposes. 5. Schools and school districts 97(1), 99(1) -Board of school trustees of municipal district not authorized to raise money by taxation or bonds, but municipality provides buildings and funds for schools run by board.

The title to school property of a municipal district created by a city under Rev. St. art. 2874, and article 2883, by assuming control of such schools and extending public limits for school purposes only, is in the board of school trustees, as is also the use and control of school buildings after they are erected, but such board has no authority to raise money for school purposes by taxation or the issuance of bonds (Rev. St. arts. 2874, 2877-2882), but the municipality provides the school buildings and the funds in addition to those provided by the state, and the board runs the schools.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Suit by L. Poteet and others against J. E. Bridges and others, officers of the City of West, in which the Board of School Trustees intervened as plaintiffs. From a judgment of dismissal plaintiffs appeal. Affirmed.

Bryan & Maxwell, of Waco, for appellants. M. Pazdral, of West, and Street & Coston, of Waco, for appellees.

Findings of Fact.

JENKINS, J. The city of West is a municipal corporation containing more than 1,000 and less than 5,000 inhabitants. It had assumed control of its public schools, administering the same through a board of school trustees who were elected by the qualified voters. Therefore it extended its boundaries for school purposes only taking in adjacent territory. It issued bonds for the purpose of erecting a high school building. The bonds were sold and the money placed in the city The city authorities contracted treasury. for a lot upon which to erect said building. Thereupon certain taxpayers, who are ap

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

the decision in Bowers v. Hamilton, supra, vested in the municipal authorities.

[2, 3] What effect does the extension of the boundaries of the municipality for school purposes only have upon such authority? Article 2883, Revised Statutes, reads in part as follows:

pellants herein, objected to the site selected | is, as appears from article 2874, supra, and for such building, and brought this suit to enjoin the city authorities from purchasing said lot and from erecting said building, alleging that the money obtained from the sale of said bonds should be turned over to the board of trustees of said independent district, for the reason that they alone were authorized to select the site for such building, and to contract for the erection thereof. The board of school trustees intervened as plaintiffs, and adopted the pleadings of the original plaintiffs. The court sustained a gen-poration lines for school purposes only," etc. eral demurrer to plaintiffs' petition and, they declining to amend, the suit was dismissed, to which action of the court plaintiffs excepted and here now prosecute this appeal.

Opinion.

It will be seen from the foregoing statement of facts that the issue presented by this appeal is whether the municipal authorities of the city of West or the board of school trustees had the right to select a building site for the purpose of school building, and contract for the erection of the same. Article 2874, R. S., reads as follows:

"Art. 2874. Towns or cities which have assumed, or may hereafter assume control and management of the public free schools within their limits may also provide for building sites and buildings for such public free schools and institutions of learning, in the manner, and under the restrictions and limitations provided in article (925) Revised Statutes, relating to cities and towns."

It will thus be seen that, as the city of West had assumed control and management of the public free schools within its limits, it, and not its school board, would have had the selection of the site and the control of the funds for the erection of the proposed building, if it had not thereafter extended

"Art. 2883. Any city or town that has taken charge of the public free schools within its limits, or that shall hereafter take charge of the same, may, by ordinance, extend its cor

It will be observed that the article last above quoted authorizes a city or town to "extend its corporation lines" for school purposes only. When the lines of a city or town are extended in the manner provided

by law, the territory included in such extension was made, is thereby included within sion, for the purpose for which such extenbecomes a part thereof. Such town or city such corporate limits, and for such purpose still remains in control of its public schools within its limits," and such added territory is, for school purposes, within its limits.

[4] Article 2815c, Vernon's Ann. Civ. St. Supp. 1922, reads in part as follows:

"Art. 2815c. Whenever the limits of any inCorporated city or town within this state, which city or town constitutes an independent school district, shall be so extended or enlarged, or shall have been so extended or enlarged,

as to embrace within the limits of such incorporated city or town the whole or any part of any independent or common school district adjacent to such incorporated city or town, that portion of such adjacent independent or common school district so embraced within the corporate limits of such incorporated city or town, shall thereafter become a part and portion of the independent school district constituted by such incorporated city or town."

its limits for school purposes beyond its Observe the language, "shall thereafter limits as incorporated for municipal pur- become a part and portion," not of an indeposes. It was so held in Hamilton v. Bow-pendent school district which includes such ers (Tex. Civ. App.) 146 S. W. 629. This is city or town, but of "the independent school conceded by appellants. But they say that, district constituted by such inasmuch as in that case the city of Palestine or town." had not extended its boundaries for school

purposes beyond its municipal boundaries, that case is not authority in the instant

case.

[1] A city, by assuming control of the public schools within its limits, does not thereby create a public school district, separate from itself, but itself becomes a public school district. It becoming such, it does not cease to be a municipal corporation, but adds an additional corporate function. This added function, in so far as it relates to the management and control of the schools, is exercised by a board of school trustees, who are officers of the municipality for that purpose, but the power to select sites for school buildings and the erection of such buildings

city

Article 925, as amended October 10, 1917 (Vernon's Ann. Civ. St. Supp. 1918, art. 925), provides that-

"In such cities or towns as have extended their lines or may hereafter extend their lines for school purposes only, under the provisions of article 2883 Revised Civil Statutes of Texas, 1911, the boundaries of such districts shall be town as extended for school purposes only, and coincident with the boundaries of the city or all such separate and independent districts shall be classified as municipal districts."

[5] The title to school property is vested in the boards of school trustees, as is also the use and control of school buildings after they are erected (R. S. art. 2872), but they have no authority to raise for such purpose

(248 S.W.)

money by either taxation or the sale of 4. Evidence 155(10)-Testimony of vile epl. bonds. R. S. arts. 2874, 2877, 2878, 2879, 2880, 2881, 2882. In other words, the municipality provides the schoolhouses and the funds, in addition to those provided by the state, and the board of school trustees run the schools.

1. Evidence 155(10)—Evidence of vile eplthets in discussing differences held admissible where punitive damages sought.

Where both parties to an action are permitted to testify without objection to various controversies in which abuses and vile epithets were addressed to each other while discussing the differences about the subject-matter of the suit, it is not error to permit one to testify as to the vile epithets used to him on such occasions, and especially so where punitive damages are sought against the party using them.

2. Evidence 155(8)-Where part of instrument introduced and relied upon by complaining party, whole instrument admissible by opposing party.

9. Torts 27-Admission of evidence as to financial condition of defendant, charged with withdrawing funds from bank, held admissible. In an action on notes and to foreclose a Where parts of an instrument are intro-lien on bank stock and a trust lien on land, duced in evidence by the party complaining and relied upon by him, he cannot complain of the whole instrument being introduced in evidence by the opposing party.

3. Trial 75-Case not reversed for evidence that he had been damaged financially, and deto which objection waived.

Where counsel for plaintiff-appellant waives his first objection to the introduction of testimony, and the court sustains his second objection thereto, the case will not be reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Writ of error dismissed for want of jurisdiction April 4, 1923.