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(248 S.W.) tracts, such as those requiring necessary par-, which Thompson's liability to appellant restties to the undertaking, an existing, valid obli- ed constituted a novation of the orginal ungation, a mutual agreement, and a proper con- dertaking between appellant and appellee by sideration, a creditor's agreement to accept a

the terms of which appellee became absolved third party agreeing to pay the debt as payor from liability and the whole of the liability instead of the original debtor, and to discharge the latter from his obligation, constitutes a val

was transferred exclusively to Thompson. id novation, and finally discharges the original The three principal points upon which the debtor.

appeal is rested may be succinctly stated as

follows: 6. Witnesses em 264–Permitting defendant to return to stand to testify as to plaintiff's

Appellant contends that the answer given agreement to look to third party for payment by the jury to the special issue submitted is of. notes sued on held within sound discretion meaningless, and, accordingly, does not exof trial judge.

press a finding upon which a judgment can be Permitting defendant, in an action on notes, based. to return to the witness stand, after having Secondly, appellant contends that all those testified on direct and cross-examination, to parts of appellee's answer to the petition testify for the first time that plaintiff agreed wherein appellee attempts to set forth as a to look to a third party, who agreed to pay the defense a novation of the contract were charpotes, and to release defendant from liability thereon, held within the sound discretion of acterized by the frailties of vagueness and the trial judge.

indefiniteness to that extent which renders

them wholly impotent to constitute a plea of 7. Novation 12-Defendant's testimony held

novation; that they express mere legal consufficient to establish novation.

clusions, and supply to appellant no notice In an action on notes, defendant's testimopy that plaintiff agreed to discharge him from of the facts which were to have been relied liability, and accepted a third party, who agreed upon as a defense to this cause of action, and, to assume payment of the notes, as its debtor accordingly, the court committed error in rein his place, held sufficient to establish such fusing to sustain appellant's special excep fact.

tions to this effect directed against those

portions of the answer. Appeal from District Court, Dallas County; The third principal ground relied upon by E. B. Mure, Judge.

appellant is that the record discloses no conAction by the Continental Gin Company sideration for a release by appellant of appelagainst H. H. Gardner and another. Judg-lee, and therefore, even if such contract as ment for defendant Gardner, and plaintiff ap appellee asserts to have been made was in peals. Affirmed.

fact made, it would for this reason be with

out any legal effect. Coke & Coke, of Dallas, for appellant.

The issue submitted to the jury by the Spence, Haven & Smithdeal, of Dallas, for trial court was as follows: appellee.

"When Gardner sold and conveyed to J. W.

Thompson the gin machinery described in the HAMILTON, J. This is an appeal from a chattel mortgage given by Gardner to Ennis judgment rendered against appellant upon Munger, trustee, and as part consideration the answer of a jury to a special issue sub- thereof Thompson assumed the payment of mitted in the trial court,

Gardner's two notes to Continental Gin ComAppellant sold H. H. Gardner certain gin pany, and when he (Thompson) indorsed said machinery, and Gardner executed and deliv- notes in plaintiff's office, then was it or not

agreed by Continental Gin Company, acting ered to appellant his promissory notes se through John A. Pope, that Thompson should cured by a chattel mortgage upon the ma- be the sole debtor on said notes and that Gardchinery, the notes representing the purchase ner should be released from liability thereon?" price of the machinery. While these notes and the mortgage incumbrance upon the property

The jury's answer in response to this quessecuring them were in existence appellee solation was in the following language: the property to J. W. Thompson, who as

"Yes; we, the jury, find in favor of defendsumed as a part of the purchase price the ant, H. H. Gardner.” indebtedness to appellant. After Thompson assumed the payment of the notes they were [1, 2] We think the answer made by the extended from time to time by appellant, and, jury to the question submitted is clear, disfinally, after demand for payment, and after tinct, and definite, and that it conveys the Thompson had defaulted, appellant instituted idea, and no other, that appellant agreed that suit against both Gardner and Thompson for Thompson should be the sole debtor on the recovery upon the notes and for foreclosure notes, and that Gardner should be released. of the chattel mortgage. Thompson did not It is immaterial what language or form of resist the suit, but Gardner answered, and expression a jury uses to inform the court defended upon the ground, among others not of its findings upon a special issue, just so necessary to mention, that the contract upon the answer, however worded, constitutes a

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response to the question, conveying a clear the debtor therein to the exclusion of the and definite meaning as to what the jury has original debtor. found. If an answer constitutes a finding of We hold the view that the allegations reada disputed fact which the question seeks to | ily could have been rendered more full and settle, it is a finality, and constitutes the explicit, and we are constrained to suggest basis of a judgment.

that, although the allegations are to be con[3] The special exceptions which were over- sidered as meeting the requirements of the ruled by the court, and of the overruling rules of pleading, yet contentions could be of which exceptions appellant complains, it obviated and time conserved by the exercise seems to us, comprehended both a general of greater care on the part of members of demurrer and special exceptions to that por- the bar than that evidenced in this pleading tion of the answer which undertook to plead to render their allegations in such cases as as a defense novation of contract. They com- this so specific, clear, and definite as to avoid plain of the insufficiency of the allegations any question or contention on the part of opon this feature of the case, not merely be posing counsel to be disposed of by appellate cause of vagueness and indefiniteness of courts. statement, but also because of absence of al [5] The third above-designated ground of legations of facts to be relied upon as a de complaint we do not regard as meritorious. fense. But, considered either as special ex- It is true that novation is made by contract, ceptions or as in the nature of a general de and in no other way, and it is subject to all murrer to the allegations of novation, we do the rules which cover the field of contracts in not think the court committed any error in general. That is to say, there must be necesrefusing to sustain them. We deem it unnec-sary parties to the undertaking, there must essary to set out in this connection all that be an existing, valid obligaton to be disportion of the petition excepted to. We deem placed, there must be a mutual agreement, it sufficient merely to state, in substance, the and there must be a proper consideration. elements of fact alleged. Appellee pleaded However, it seems to be well settled that, if that after the notes sued upon were executed a creditor owes a debtor money, and a third by him he sold all the property mortgaged to party agrees to pay the debt to the creditor, secure them to Thompson, and that, as a part and the creditor agrees to accept such third of the consideration for the purchase by party instead of the original debtor as payor Thompson, the latter specially assumed the of the debt, and also agrees to discharge the payment of the notes according to their original debtor from his obligation, this is terms, tenor, and effect. He alleged that the sufficient to constitute a valid novation, and transaction was well known to appellant, and finally discharge the original debtor. that it in part was consummated in appel [6] Complaint is made that the court erred lant's office at its place of business in Dallas, in permitting appellee to testify that appelTex., and that, when appellant was informed | lant agreed to look to Thompson and to reof the sale, and requested to produce the lease appellee from liability on the notes, for notes so that Thompson might evidence his the reason that appellee was recalled to the agreement to pay them by signing his name stand near the conclusion of the trial and on them, they were produced by appellant, permitted to give such evidence after he had tendered to Thompson for his signature, and, already previously fully testified, the testiat appellant's direction, Thompson signed his mony not being in rebuttal of any evidence name upon the backs of them, thereby mak- offered by appellant. It is argued in this ing them his own, and that “plaintiff (appel- same connection that appellee had been on lant) accepted the said J. W. Thompson's as the stand, had testified on direct examination sumption of the payment thereof, and his and on cross-examination, and had given no agreement with this defendant to pay the evidence tending to the effect that appellant same in accordance with their terms, tenor, had agreed to release him from the indebtedand effect, and thereby recognized and ac ness, and that, under these conditions, the cepted the said J. W. Thompson as its debtor court excused him from the witness stand, on said notes in lieu of this defendant." permitted him to go into consultation with

[4] The effect of the allegation, in our his attorneys, and thereafter return to the view, is to declare that Thompson agreed to witness stand and give this evidence for the become exclusively liable for appellee's in- first time, over appellant's objection and pro debtedness; that appellant agreed that appel- test. This is a matter which we think was lee's liability should cease, and that it would in the sound discretion of the trial judge, look solely to Thompson for payment. If the and we are not warranted in saying, under parties at interest assent to the extinguish the record, that this discretion was abuscd ment of an old debt by agreeing that a third in the conduct complained about. party exclusively shall assume it, and such [7] The pleadings put in issue the question third party, acting within the understanding, of whether or not appellant agreed to disassumes the sole liability, this is a novation, charge appellee from his original undertakand the original debtor is discharged. A new ing and accepted Thompson as its debtor in obligation is thereby substituted for the ex. his place. If Gardner's testimony is true (and

error

(248 S.W.) credibility), then there was evidence sufficient ! was seized, and afterwards gave a replevy to establish the fact. The issue was definite bond, with the other appellants as his bondsly submitted to the jury in the charge of the men, thereby depriving appellee of the court, and the jury's answer was a finding / use of the farm for that year. Appellee that such was the fact.

filed a cross-action, alleging that he rentThe judgment of the trial court accordingly ed the farm on the usual terms, one-third must be affirmed.

and one-fourth of the crops, and that after he Affirmed.

was ejected therefrom the best that he could do was to rent a farm of 55 acres of inferior soil, for which he was compelled to pay a

bonus of $500, on account of farms generally MACH et al. v, HALVE. (No. 6518.) having been rented prior to his ejectment.

He alleged that he was damaged by the acts (Court of Civil Appeals of Texas. Austin. of appellant, in dispossessing him of the Dec, 20, 1922. Rehearing Denied Jan. 24, 1923.)

farm, the difference in the net value of the

crops which he would have raised on the 1. Appeal and Om 1060(1) - Question farm of appellant and that which he did whether party testifying was wiling for jury raise on the farm rented, in the sum of $1,700, to inspect farms and court's remark that they certain other expenses which he was forced could do so if counsel agreed held not revers.

to incur, and the bonus of $500, which he ible error.

was compelled to pay, his actual damages In an action to recover possession of a farm, from which defendant was ejected during amounting in the aggregate to $2,000. He his term as a tenant, thereby being compelled, also asked for $2,500 exemplary damages. as alleged in his cross-complaint, to rent an The case was submitted to a jury upon other farm of inferior soil, where plaintiffs' special issues, in answer to which a judgcounsel, after objecting to a question asked ment was rendered for appellee for $750 acone of his clients as to whether he was willing tual damages. for the jury to "go out and look at both" farms,

No statement of facts had been filed in stated in their hearing that he would be glad for the jury to inspect them, but that the law this court, the issue raised being that the did not allow it, the court did not permit them judgment herein should be reversed on acto make such inspection and instructed them count of misconduct of attorneys for appelnot to consider what had been said with refer- lant, and of the court, the facts in reference ence thereto, and the amount of the verdict to which are shown by the following bill of for defendant might have been sustained by

exceptions: the facts without reference to the difference in the soil, the appellate court could not say, "Be it remembered that upon the trial of at least in the absence of a statement of facts, the above numbered and entitled cause, and that the asking of such question, and the court's while the testimony was being introduced upon remark that he would permit the jury to go if the trial of said cause, and while the defendant counsel agreed, constituted reversible error, as O. F. Schmaultz was being cross-examined by influencing the jury to believe that plaintiff ob- Mr. W. W. Naman, attorney for the defendant jected.

Max Halve, the following questions, objections, 2. Appeal and error 548(3)-Whether ver. rulings, and remarks of the court took place dict is excessive cannot be determined with in open court, and in the presence of the jury, out statement of facts.

to wit:

"Mr. O. F. Schmaultz, one of the defendants Whether the verdict is excessive cannot be determined without a statement of facts.

to defendant's cross-action, having been first duly sworn on oath, testified, in part, as fol

lows, on cross-examination by Mr. Naman with Appeal from District Court, McLennan reference to the character of the lands involved County; Jas, P. Alexander, Judge.

in this suit: Action by Adolf Mach and others against and look at both of those pieces of land?

"Q. Are you willing for this jury to go out Mar Halve. Judgment for defendant, and

“Mr. Rogers: Your honor, that is just a plaintiffs appeal. Affirmed.

grand stand play, and counsel knows it. We Method Pazdral, of West, and Weatherby

object to it. It is prejudicial, and counsel

knows that too. It is objectionable even to & Rogers, of Waco, for appellants.

ask the question. Spell

, Naman & Penland, of Waco, for ap “The Court: Sustain the objection, I believe. pellee.

"Mr. Naman: I think, if the court please,

that we have a right to offer to tender that. JENKINS, J. Appellant Mach was the

"Mr. Rogers: It is better not to make those owner of a 130-acre farm in McLennan co

offers; we are very glad for them to go out, , which he rented to appellee for the year but you know the law don't allow it.

"Mr. Naman: Don't allow what? 1917. On January 9, 1917, appellant filed

"The Court: If you gentlemen will agree to suit, in trespass to try title, to recover the it, I will let them go out. possession of said land. He sued out a writ “Mr. Rogers: I will agree to it. of sequestration, by virtue of which the land "Mr. Naman: All right.

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

n

"The Court: Let's get going.

cedure above outlined, and here now tenders "Mr. Rogers: We want to make a motion to plaintiff's bill of exceptions No. 1, and asks exclude the remarks of the court that, if coun- | that the same be approved and allowed by the sel for the opposite side would agree to the court." proposition of counsel for the defendant Max Halve to take the jury out to view the two The jury were not in fact permitted to infarms in question in this suit, the court would spect the two farms, and in this respect this permit the jury to go, and that the same would

cause is different from Smith v. State, 42 be legal, for the reason that the same is ille- Tex. 444, and Riggins v. State, 42 Tex. Cr. gal and the remarks of counsel in making the R. 472, 60 S. W. 877. Also, this case is difproposition were highly prejudicial to the rights of the opposite side, and the remarks of the ferentiated from Wieser v. Oats (Tex. Civ. court in response to this proposition were like- | App.) 234 S. W. 553, inasmuch as in that case wise prejudicial, and we request that the court the jury had requested permission to inspect correct his remarks to the jury.

the wheat. They were retired, and the ques“The Court: Let the record show that coun tion was considered by the court. One of the sel for the defendant made the remark, in sub-parties refused to agree to such inspection; stance"Mr. Naman: Excuse me. There wasn't any the court could not grant their request, except

the jury were brought back and told that remark. I said to Mr. Schmaultz, would you be willing?

upon the consent of both parties. Thereupon "The Court: Counsel for the defendant ask- | the attorneys for one of the parties stated, ed one of the parties if he would be willing in the presence of the jury, that he would for the jury to go out and view the two farms, agree to such inspection. This, in view of and counsel for plaintiff then objected to this what the court had stated, was, in effect, to question, and the court sustained the objec- tell the jury that the refusal to grant their tion, and told the jury not to consider it, and request was upon the objection of the other if the matter had ended there it would have party. Such conduct was clearly reprehenbeen settled, but counsel for plaintiff then remarked that the question was improper, and sible and calculated to influence the jury. that it was not lawful for the jury to view the

[1, 2] In this case, we do not think the two farms, and counsel for defendant well jury could have been influenced by the knew it, or something to that effect, and the idea that the appellant objected to their court then remarked that it would be legal inspecting the farms, for the reason that for them to view the farms if counsel for both counsel for appellant stated, in their hearsides would agree. If counsel for plaintiff now ing, as shown by the bill of exception, desires to withdraw his remark about the matter being illegal, the court will then instruct that he would be very glad for the jury the jury not to consider the remarks made by to go out and inspect the farms, but the defendant's counsel or by the court, but I real. law did not allow it, and, inasmuch as the ly think my remark was properly brought about court did not permit them to make such inby yourself.

spection, the jury must have concluded that "Mr. Rogers: It is prejudicial.

it was not because appellant objected, but “The Court: I am willing to correct it if because the law would not permit them. In you will withdraw your remark.

addition to this, the bill of exception shows "Mr. Rogers: I will not do that, because I that the court instructed the jury not to dissay that the asking of that question was illegal.

"The Court: And I so told the jury, and I cuss what had been said with reference to inwill now so instruct the jury not to consider spection, and not to consider remarks on the remarks of counsel for the defendant or that issue for any purpose. Had the jury the court if you will withdraw your remark. been permitted to examine the two farms,

"Mr. Rogers: No, I am very well satisfied the only evidence that would have been prewith the record just like it is, and I take a bill sented to them by such view would have been of exception to the asking of the question, the difference, if any, in the soil of such and to the remarks of the court in response farms. to my objections to the asking of the question, damages might have, so far as we know, been

The verdict in this case for $750 and to the court's refusing to correct his statement to the jury."

amply sustained by the facts, without referAfter all parties had rested:

ence to the difference in the soil. There is no "The Court: There have been some remarks assignment that the verdict is excessive, and, made about going out there to see the farms if there were, we could not determine that in question. Perhaps those remarks on the part issue without a statement of facts. of all of us were improper, and I instruct you

We do not believe that the facts shown by not to discuss those, or consider them for any the bill of exception above set out present purpose.

reversible error. At least, we cannot say so “That thereupon the counsel for plaintiff, Adolf Mach,

and the defendants 0. F without the benefit of a statement of facts. Schmaultz and the heirs of J. R. Schiller, de- Finding no reversible error of record, the ceased, in open court took a bill of exceptions judgment of the trial court is affirmed. to the action of the court and the entire pro Affirmed.

(248 S.W.)

"We drove them in the stock pen about 5 ST. LOUIS SOUTHWESTERN RY. CO. OF O'clock p. m. There was a hole in the stock

TEXAS v. BROWN & CO. (No, 2694.) pen, in the northeast corner. A plank was off (Court of Civil Appeals of Texas. Texarkana. that made a hole about four or five feet long. Feb. 8, 1923.)

We saw the hole when we first got there. We guarded it awhile.

We quit guarding 1. Carriers to 227(3)- Judgment against car- the hole and went off uptown in order to get rier for loss of hogs must be reversed in ab- something to eat." sence of evidence to support a finding as to their value.

Appellees claim that the hogs escaped from In a shipper's action against a railroad the pen through that hole while they “were company for the value of bogs escaped from the away” at supper, and this was, as it inferrailway stock pen because of the negligent ably appears, before the bill of lading was maintenance of the stock pen, a judgment for issued. The assistants, or employees, seem plaintif must be reversed in the absence of evi- to have gone with the appellees to eat supper. dence to support a finding as to the value of the The appellant denied that there was a delivbogs sued for.

ery to it of more than 77 hogs for shipment. 2. Carriers 217(2)-Shippers' fault and not it was undisputed that the railway company fault of carrier as to defective stock pen held proximate cause of loss of hogs so that they transported and delivered 77 hogs to the concould not recover.

signees at Fort Worth. The following agreed Where shippers at 5 o'clock p. m. placed facts are quoted from the record: hogs in the carrier's stock pen preparatory to "The hogs were placed in the pen at 5 o'clock shipment, and, noticing a hole in the fence p. m. January 10, 1922. They were loaded at large enough for the hogs to get through, 6:45 p. m, same date, and moved same date guarded it for a while, and then left to eat sup- about 8 p. m, on train 15." per, and the hogs were loaded at 6:45 p. m., but 28 of them had escaped through the hole in the The appellees and their employees loaded fence, no recovery for the hogs thus escaping the hogs in the car. can be had against the carrier, since the ship After hearing the evidence, the court enterpers should have guarded the hole for 30 or 40 ed judgment for the appellees, finding $288.minutes longer, or for trifling expense have repaired it; their immediate fault, and not the 79 as the value of the 28 hogs. remote fault of the carrier, being the proximate J. M. Burford, of Dallas, for appellant. cause of the loss.

Wilkinson & Cook, of Mt. Pleasant, for apAppeal from Titus County Court; Dan M. pellees. Cook, Judge.

LEVY, J. (after stating the facts as above). Action by Brown & Co. against the St. Lou- [1] It is insisted by appellant, and the stateis Southwestern Railway Company of Texas. ment of facts sustains the contention, that Judgment for plaintiffs, and defendant ap- there is a lack of any evidence showing, or peals. Reversed and rendered.

tending to show, the value of the hogs sued The appellees brought the suit to recover for. There is some evidence to show that the the value of 28 head of hogs alleged to have hogs would weigh as much as 190 pounds escaped from the railway stock pen and apiece, but no witness undertakes to testify strayed away by reason of the negligent about their selling price or market value. maintenance of the stock pen by the railway Consequently the finding of the court as to company. The appellees claim and testified value, being without any evidence to support that they drove to town and placed in the it, would have to be set aside, operating to stock pen of the railway company at Cook- reverse the judgment. ville 105 hogs, and then cared for and fed However, the more serious question is that them, intending to tender them for ship- of whether or not, in the evidence, the apment to Fort Worth, Tex., and that the rail- pellees are entitled to recover at all. In the way agent afterwards accepted the shipment first place, it does not satisfactorily appear and issued a bill of lading therefor, but that from the evidence that at the time the hogs 28 hogs escaped from the stock pen before escaped from the stock pen they had been they were loaded on the car. The bill of lad- received by the railway company for transing was issued by the railway agent shortly portation. It was shown that the appellees before the hogs were loaded on the car. The placed the hogs in the stock pen and then fed hogs

, as appellees say, were “bottom raised” them, intending to tender them to the railhogs

, undomesticated, and that had to be way company for shipment, and that they "run with dogs" in order to "handle them.” were afterwards “delivered” to the railway The appellees had seven or eight employees company for shipment and a bill of lading assisting in driving and caring for the hoss. was issued and delivered therefor. It furThe hogs arrived at Cookville and were plac- ther affirmatively appears that the hogs were ed in the stock pen about 5 o'clock p. m., loaded by appellees and their employees in a January 10, 1922. One of the appellees tes- car at 6:45 o'clock p. m., shortly after the

bill of lading was issued. The hogs, seemw Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-7

tified as follows:

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