Imágenes de páginas

10. Bills and notes C501-Exclusion of evi- , for $36,450 was not due, according to its

dence that defendant in suit on notes had left face and tenor, appellant sought by this suit town, leaving unpaid debts, not erroneous.

to mature same because of certain alleged In an action on notes and to foreclose a breaches of the contract of sale of bank stock lien on bank stock and a trust lien on real es. by Crosby; and appellant further alleging tate, the exclusion of testimony that defendant mutual mistake in leaving out of said writhad left town without paying his grocery bill and market bill was immaterial and inadmis- ten contract the agreement that whenever sible.

the appellee should pay or tender to plaintiff

as much as $2,700 on said $36,450 note, stock 11. Appeal and error em 1002–Verdict based in blocks of 10 shares should be released to on conflicting evidence not disturbed. Where a jury's verdict is based on conflict. to any moneys derived from dividends upon

appellee, but this provision should not apply ing testimony, it will not be disturbed on ap- said stock contract to appellee; and prayed peal.

the court to reform said contract to that 12. Trial em 260(6)-Failure to instruct jury extent, and to write therein the true con

on good faith of plaintiff in withholding bank tract; and asked, in the alternative, for stock held not erroneous.

judgment for certain dividends to be paid In an action on notes and to foreclose a lien on bank stock and a trust lien on real estate, upon the bank stock sold by appellant to where the defendant charged plaintiff with the appellee, and for certain excess salary paid conversion of bank stock placed as collateral, appellee as president of the bank, which was the failure to charge the jury on the question to be credited upon said note for $36,450 as whether the action of plaintiff in converting agreed. the stock was for the purpose of injuring de Defendant admitted the execution of the fendant in his business or financial relations note for the sum of $36,450, and the contract, with the bank was not error, in view of the also the execution of the note for $5,000, but submission of the question by the court that, alleged that the same was not liquidated if the jury finds that appellant did willfully withhold the stock, it would be presumed that damages, for breach of the contract in quesit was with the intent to injure the party tion, and denied any breach of said contract against whom he was acting.

by him, and further alleged that certain cred

its were due him upon said note for $36,450, Appeal from District Court, Falls County; and asked that they be made on the note; Prentice Oltorf, Judge.

and he denied any mutual mistake in failing

to incorporate into the contract the matters Suit by Z. A. Booth against H. D. Crosby. alleged by plaintiff; and by way of cross-bill From a judgment for defendant, plaintiff appellee charged appellant with the converappeals. Affirmed.

sion of 40 shares of stock of said bank, and E. M. Dodson and Spivey, Bartlett & asked judgment for their market value at Carter, all of Marlin, for appellant.

the time of the alleged conversion; and furT. F. Garver, of Topeka, Kan., and J. D. ther for exemplary damages for the alleged Williamson and Allan V. McDonnell, both willful and malicious conversion of said stock of Waco, for appellee.

by Booth.

The case was submitted to the jury upon BLAIR, J. This suit was instituted by special issues, and the court entered judgment appellant, Z. A. Booth, against appellee, H. D. upon their findings, denying appellant the Crosby, to recover on a note dated August right to mature the note for $36,450 for the 31, 1918, for the principal sum of $36,450, alleged breach of contract, and further deny. bearing interest at 7 per cent., payable ing him the right to have the contract reanuually, and due on or before five years formed as prayed on the question of mutual from date, executed by Crosby to Booth; mistake in leaving out the certain matters and for the foreclosure upon 135 shares of stated, and givir appellee judgment on his stock of the First National Bank of Rosebud, cross-bill for the net sum of $3,794.19, being Tex., pledged as collateral security for said the aggregate amount found by the court to note; also to recover on a note executed by be due him under the findings of the jury as Crosby to Booth, in the sum of $5,000, and for the value of the bank stock converted by a foreclosure of a deed of trust lien upon cer- appellant Booth, and exemplary damages, tain lands in McMullen county, Tex., which together with interest thereon at 6 per cent. was executed as security to both the note for from April 30, 1921. Appellant's motion, for $36,450 and the note for $5,000, a ppellant new trial being overruled, he appeals; and alleging the latter note was executed by the case is affirmed. Crosby to him as liquidated damages, collect 1. Appellant complains in his first assignable in the event of a breach of a certain ment because of the admission by the court contract for the sale of bank stock, executed of certain testimony of disagreeable and ugly simultaneously with the note for $36,450, language and vile epithets used by appellant and which said note was executed in payment to appellee on numerous occasions while in of said bank stock; and although said note appellee's bank, contending that the same

(248 S.W) was irrelevant and immaterial to any issue in , assignment complained of by appellant bethe case, and that the questions were too gen-cause of the court denying the introduction eral, and that the time was not sufficiently of a certain bank statement showing the stated to call attention of plaintiff to the condition of the bank on June 30, 1920, some particular occasion.

few days after defendant's relationship with 10 We do not think the court erred in the bank had ceased. It is not shown for permitting the defendant to prove by plain what purpose this evidence would have been tiff that on numerous occasions he did so use material in the bill of exception; and for the such vile epithets to appellee. It is an further reason that appellee could not be established rule that, where both parties are held responsible for some statement or act of permitted to testify without objection to other officials of the bank after his term of various controversies in which abuses and office had expired. vile epithets were addressed to each while [6] 6. Under appellant's sixth assignment discussing their differences about the subject of error, he complains of the remarks of matter of the suit, it is not error to permit counsel made in the presence and hearing of one to testify as to the vile and ugly epithets the jury, to the effect that plaintiff had been used to him on such occasions, and especially | convicted of a criminal assault upon defendso where punitive damages are sought against ant. The record discloses that the trial the party using them. G., C. & S. F. Ry. Co. judge promptly instructed the jury to disF. Graham (Tex. Civ. App.) 175 S. W. 472, regard the statement of counsel, and that the 474.

inquiry should go no further than merely [2] 2. Appellant complains in his second establishing the fact that an indictment had assignment of error that the court committed been returned. No injury being shown, we error in permitting appellee to introduce in do not see how this could materially injure evidence the judgment in an injunction suit appellant in his rights. Authority, see between the First National Bank of Rosebud Philadelphia Underwriters Agency v. Cheeves and the plaintiff in this suit. We note from (Tex. Civ. App.) 193 S. W. 1031. the record that the First National Bank of [7] 7. By his assignment No. 7, appellant Rosebud, Tex., was the bank by which complains of the action of the court in refusappellee was employed as president, and that ing to permit L. B. Dunn to testify about a the injunction suit, according to the appellant conversation with D. C. Crosby, relative to Booth's testimony, was instituted by the the withdrawing of $6,300 from the bank, defendant, Crosby, against him, and was to which was not in the presence and hearing of enjoin the appellant, Booth, from going in the appellee, and not shown to be authorized and about said bank and disturbing its by him. It is a well-established rule that it employers in any way in the regular course is not error to exclude testimony of a third of their business. We note further from the party out of the hearing and presence of the record that both appellant and appellee had party affected thereby, and not shown to be been permitted to testify concerning the in- authorized by such party. junction, and parts of said judgment had 8. In proposition No. 8, appellant objects been introduced by appellant. It has been to the action of the court in excluding the a well-settled rule that, where parts of an bank statement showing the condition of the instrument were introduced in evidence by Rosebud National Bank on or about Septemthe party complaining and relied upon byber 30, 1920. This appears from the reehim, he cannot complain of the whole in- ord to be come three or four months after strument being introduced in evidence by the appellee had ceased to act as president of opposing party. G., C. & S. F. Ry. Co. v. said bank, and no proof was offered by Graham (Tex. Civ. App.) 175 S. W. 472, 474. appellant that such statement was made by [3] 3. Where the record discloses that or under the direction of appellee, nor is it plaintiff's counsel waived his first objection shown that he knew anything of it. All the to the introduction of testimony, and the record discloses is that counsel stated to the court sustained his second objection thereto, court that they would show that appellee the case will not be reversed.

was the cause of the reduction of the surplus, [4] 4. Appellant's fourth assignment com- as shown by the statement of the bank. We plains of the action of the court in permitting do not see that this is material to any issue defense counsel to prove the use of vile in this case, and it would come within the epithets by plaintiff to defendant, contending rule announced under proposition No. 7 that such testimony is not supported by the herein. pleadings in the case. This we think to be a [8] 9. We find no error in the court permatter of evidence rather than of pleading, mitting the appellee to testify to certain disand since appellant had testified to their bad cussions and conversations relative to the feelings without objection, both in his direct election of nonresident directors, as complainand redirect examination, we think the same ed of in proposition No. 9, for, where the rerule of law as announced in assignment No. 1 cord discloses, it was in rebuttal or explana

tion of the testimony of appellant, who had [5] 5. The court finds no error in the fifth testified that nonresidents had been elected

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on board of directors, for the purpose of, without the same being in good faith. This showing that it was the policy of appellee to does not, in our opinion, impose upon him an so conduct the banking institution to its onerous burden, but to the contrary would injury.

probably limit the appellee's right to an an[9] 10. We are of the opinion that no swer to this question to the extent complainerror was committed by the court in per- ed of by appellant. mitting the witness Crosby to testify to his After duly considering the assignments of financial condition at the time he withdrew error herein, we are of the opinion that the the $6.300 from the Rosebud Bank, as com- judgment of the trial court should be afplained of in proposition No. 10 by appellant. firmed; and it is accordingly done. Appellee had filed his cross-action complain Affirmed. ing of the conduct of appellant in trying to crush him in his business dealings and in his financial standing in the community, and because of such willful conduct on the part MAHANEY V. CITY OF CISCO et al. * of appellant, appellee contended that he had

(No. 10434.) been damaged financially. Appelloe was also being charged with the conversion of this (Court of Civil Appeals of Texas. Ft. Worth.

Nov. 25, 1922. Rehearing Denied fund of $6,300 by appellant, and we find no

Jan. 13, 1923.) error in permitting him to testify as to its disposition, under the circumstances of this 1. Injunction en 135—Refusal to issue tempo

rary injunction without notice discretionary (10) 11. We find no error in the action of

with trial judge. the court in refusing to permit. the plaintiff

The granting or refusal of a temporary into testify that the defendant had left Rose- junction or restraining order by a district judge bud without paying his grocery bill and

on the application of the petitioner without nomarket bill, as we do not see any issue in tice to the defendant and without a hearing.

even where sufficient grounds for an injunction this case where same would become material, on hearing are alleged, rests largely in the disand the bill fails to disclose its materiality. cretion of the district judge, to whom the appli

[11] We are called upon by appellant in cation is presented. his assignments Nos. 12, 13, 14, 15. and 16 2. Appeal and error 954(1). Appellate to pass upon the question of the sufficiency of

court will not reverse order refusing injuncthe evidence to support the findings of the tion, in absence of abuse of discretion. jury under issues No. 5, No. 6, No. 7, and

An appellate court will not reverse an orNo. 12 of the court's charge. We find that der of a district judge refusing to grant an inthere is a conflict of evidence upon these junction on the presentation of the sworn petiissues submitted by the court, and, the jury tion without a hearing, unless it is shown that having found upon special issues, this courtthe district judge has abused his discretion. will not disturb their finding. Where a 3. Licenses 38-When municipality may rejury's verdict is based upon conflicting tes voke occupational license. timony, it will not be disturbed upon appeal. When an occupation is of such a character

[12] By his assignment No. 17, appellant that a municipal corporation under a general complains of the court's action in failing to grant of the police power is justified in regulatsubmit to the jury the question of whether ing it in the interests of the public health, the action of appellant was for the purpose of morals, safety or welfare, and, as an incident injuring defendant in his business or finan- taken out by all who seek to engage therein,

to such regulation, in requiring a license to be cial relations with said bank. It seems to the power of the municipality to revoke such a us that the court submitted the question license, whenever in the opinion of the municiraised by the pleadings in such manner thatpal authorities the public interests require such it could not be misunderstood by the jury, action, is inherent, and may be exercised withand one which would determine the issue in out previous notice to the holder of the license, the case. If the jury finds that appellant and without affording an opportunity to be did act willfully, maliciously, and oppressive heard; in such case the licensee has no redress, ly, and without belief in good faith that provided the action of the municipal authorities

was not arbitrary, tyrannical, unreasonable, or he had the legal right under said contract to

based upon false information, withhold said stock, it would be presumed that it was with the intent to injure the 4. Licenses Ow38 – Municipality may revoke party against whom he was acting.

occupational license for any reason justifying

refusal to issue license. By his second assignment under proposi. tion No. 17, appellant complains that the

A municipality may revoke a license to op

erate a motor bus for any reason which would expression, “without belief in good faith,” as have authorized it to refuse to issue the license used in said issue, was prejudicial to plain' in the first instance. tiff, and imposed too heavy a burden upon di him, and tends to convey the impression to Appeal from District Court, Eastland the jury that he might have such belief / County; E. A. Hill, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(248 S.W.) Suit by G. N. Mahaney against the City of ! on a copy hereof showing service on the said Cisco and others to restrain enforcement of Newt Mahaney.

"Passed. W. B. Statham, Secretary. an order revoking petitioner's license. From

“Approved. J. M. Williamson, Mayor. an order refusing a temporary injunction

"I, W. B. Statham, secretary of the City of until final hearing, petitioner appeals. At

Cisco, do hereby certify that the above and firmed.

foregoing is a true and correct copy of an orCearley & Pearce, of Cisco, and Burkett, of Cisco at a special meeting called and held on

der passed by the city commission of the city Orr & McCarty, of Eastland, for appellant. the 6th day of October, 1922. Butts & Wright, of Cisco, for appellees.

"Given under my hand and seal of office, this the 12th day of October, A. D. 1922.

"W. B. Statham, BUCK, J. G. N. Mahaney applied to the

"Secretary of the City of Cisco." district court of Eastland county for an injunction against the City of Cisco and its

That in pursuance of said order directed commissioners. He alleged that some time in May, 1922, a license was issued to him against plaintiff, a copy of the same, togeth

er with a check or voucher in the sum of by the city, authorizing him to run and op- $13 purporting to be the balance due him erate a passenger motor vehicle, for which as a refund on the license of the motor vehe paid $25. That the commissioners and hicle theretofore issued to the plaintiff, was the mayor of said city, without cause and sent to him, but he returned the same to the without authority of law and in violation secretary of the city of Cisco. of the ordinances and statutes of said city, Plaintiff further alleged that the action did, on August 26, 1922, at a special meet- of the defendants in passing said order, reing of the commissioners, pass the following voking and canceling his license, was disorder, to wit:

criminatory, and in violation of the ordi

nances of the city itself and in violation of
"Be it remembered that at a special meeting the laws of Texas, in that it permitted other
of the city commission of the city of Cisco, service cars or motor vehicles to operate
Eastland county, Tex., beld at the city hall of
said city of Cisco, on the 6th day of October, under a similar license for hire, and forbade
4. D. 1922, with L. H. McCrea, Minter Wor this plaintiff to operate his car for hire.
mack, Ernest Hittson, J. B. Blitch, and R. L. He alleged that the order constituted class
Poe, commissioners, and J. M. Williamson, legislation and was void; that he had never
mayor, there was brought up before said body been convicted of any violation of the ordi-
for consideration and determination the cancel- nances regulating the issuance and use of
lation of the service car license issued by the the license aforesaid, and specially that he
city of Cisco to Newt Mahaney on the 15th day had not violated the same in knowingly car-
of May, 1922, said license granting to the said rying in his motor vehicle intoxicating liq.
Newt Mahaney the right to operate a car for
bire, or service car license in said city of Cisco. uors to be used for beverage purposes, or in

“Due notice of such meeting having been giv- carrying women for immoral purposes. The
en to the said Newt Mahaney to appear before ordinance prohibiting these acts provided,
said city commission at said meeting and show in addition to the fine to be imposed, that
cause, if any, why said license should not be the person violating the same should have
revoked, and, the said Newt Mahaney having his license forfeited.
failed to appear or to make answer before the Plaintiff further alleged that he had al-
said commission, it was moved, seconded, and ways conducted his business of operating a
unanimously passed that the peace, quietude, service car for hire in accordance with the
and morals of the City of Cisco would be best laws of the state of Texas and the ordi-
conserved by the revoking of said license here-
tofore referred to.

nances of said municipal corporation, and at
"It is accordingly the order and decree of the no time bad he been guilty of any violation
city commission of the city of Cisco, Eastland thereof. Plaintiff prayed that the court is-
county, Tex., that the motor or service car li sue a writ of injunction-
cense issued by the said city of Cisco, Eastland restraining said municipal corporation from
county, Tex., under date of May 15, 1922, to enforcing or attempting to enforce said order
the said Newt Mahaney, be, and the same is canceling and revoking said license of this
hereby, revoked, and without further force and plaintiff to operate a motor vehicle for hire in
effect from and after a delivery to the said said city of Cisco, and to further restrain its
Newt Mahaney of a true copy of this revoca-

officers and agents from giving interviews to "The secretary is directed to forthwith issue newspapers of Cisco and elsewhere derogatory

to this plaintiff by insinuation, innuendoes, or a true and correct copy of this order, and to otherwise, upon the presentation of this appliissue to Newt Mahaney the voucher of said city

of Cisco for any amount that may be due by
reason of the unexpired time that said license
would run, and to deliver both said copy and

Plaintiff asked for a temporary writ of invoucher to the chief of police of said city of junction first, and that a permanent injuncCisco, and due return thereof make of the date tion be granted upon final hearing. The ap50 delivered to said chief of police, and the peal of the petitioner is predicated upon chief of police is directed to make due returns the refusal of the judge of the Eighty-Eighth

tion and order.


judicial district court of Eastland county to to inspect and determine the mode of inissue the temporary restraining order. specting meats, fish, vegetables, and produce.

[1, 2] The record discloses that notice was In 1880 the city passed an ordinance authorissued by the commissioners of the city of izing the establishment of private markets Cisco to appellant to appear before them for the sale of fresh meats within the corand show cause why his license should not porate limits upon the application to the be revoked, and that appellant failed to ap- city council for that privilege, for which pear or to make answer, before said com- privilege a license fee of $50 per annum was missioners in the premises. The granting charged. In 1887, the city council amended or refusal of a temporary injunction or re- | this ordinance by providing that all market straining order by a district judge on the ap- privileges theretofore granted should terplication of the petitioner, without notice minate on the 1st day of January, 1888, and to the defendant and without a hearing, even all market privileges thereafter granted where sufficient grounds for an injunction should terminate on the 1st day of the next on hearing are alleged, rests largely in the succeeding January. On October 2, 1888, discretion of the district judge to whom the the city council adopted an ordinance amendapplication is presented. Holbein v. De La atory of the revised ordinances of the city, Garza (Tex. Civ.' App.) 126 S. W. 42, 46; providing that from and after January 1, Commissioners' Court v. Nichols (Tex. Civ. 1889, no private market should be establishApp.) 142 S. W. 37, 40; Davidson y. Wells ed in the city of Galveston within a certain (Tex. Civ. App.) 233 S. W. 518, 520; Suther- territory, and providing a fine for the violaland v. City of Winnsboro (Tex. Civ. App.) tion of the ordinance. On February 18, 1889, 225 S. W. 63; Pavey v. McFarland (Tex, Civ. the ordinance was further amended.

In App.) 234 S. W. 591, 594. An appellate court 1884, the plaintiff made application in writwill not reverse an order of a district judge ing to the city council for permission to esrefusing to grant an injunction on the pres- tablish, under the ordinance of 1880, which : entation of the sworn petition, without a was then in force, a private market in the hearing, unless it is shown that the district city of Galveston for the sale of fresh judge has abused his large discretion. 14 meats, which application was granted, and R. C. L. p. 312.

thereafter plaintiff established private In 25 Cyc. p. 625, subd. J-b, it is said: market for the sale of fresh meats, at a con"A mere occupation or privilege license grant- siderable expense, and continued to operate ed by a state is always revocable, the correla- the same until January 1, 1889, paying to tive power to revoke the license being a neces the proper officer of the city quarterly in adsary consequence of the main power to grant vance the tax imposed by the ordinance of it. And this correlative power to revoke can 1880. Prior to January 1, 1889, the city had only be restrained, if at all, by an explicit contract upon good consideration to that effect. erected and completed within the limits de But in the absence of authority therefor in its fined by the ordinance of October 2, 1SSS, a charter, a municipality may not impose a li- large and commodious market house concense tax on an occupation or privilege on con- taining stalls to let to vendors of meats, vegdition that the license shall be revocable upon etables, etc., at a reasonable rental fixed by the violation of the ordinance regulating such the city council. On January 1, 1889, plainoccupation or privilege. Nor can the mayor when the power of revocation is given by the tiff tendered to the city the amount of the charter to the common council, revoke a mu- license fee imposed under the ordinance of nicipal license, unless expressly authorized so 1880, and asked for the issuance of a renewto do by ordinance or otherwise."

al license to conduct his market. Upon the

city's refusal to issue the license the plainThis authority on page 626 says:

tiff brought suit for a mandatory injunction "But one who accepts a license from a mu. against the city. The Supreme Court susnicipality on condition that it may be revoked tained the action of the city on the ground at discretion, when the municipality has statu- that the provisions of the charter empowertory power to impose such condition, thereby ed the city to establish market houses, and assents to the terms imposed, and is estopped to control them; that such a power was necto question the right to revoke, and such estoppel applies even though no notice of inten-essary for the protection of the health of the tion to revoke be given to him."

city, and that the police power possessed by

the city cannot be fettered by contracts, but In Newson v. City of Galveston, 76 Tex. must be left free to be exercised at all times, 559, 13 S. W. 368, 7 L. R. A. 797, the Su-, whether in conferring or withdrawing priv. preme Court had before it the case of where ileges once conferred; that if the license Newson had been granted a license to oper- tax had been paid for a year, this would not ate and maintain a market in the city of deprive the city of the power to withdraw Galveston, where he sold fresh meats. The the privilege before its expiration, if the charter of the city authorized and empower- public welfare demanded. Much less would ed it to establish and erect markets and the fact that the city for a time had remarket houses, to designate, control, and ceived the tax and granted the privilege

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