(248 S.W.)

tracts, such as those requiring necessary parties to the undertaking, an existing, valid obligation, a mutual agreement, and a proper consideration, a creditor's agreement to accept a third party agreeing to pay the debt as payor instead of the original debtor, and to discharge the latter from his obligation, constitutes a valid novation, and finally discharges the original debtor.

6. Witnesses264-Permitting defendant to return to stand to testify as to plaintiff's agreement to look to third party for payment of notes sued on held within sound discretion of trial judge.

Permitting defendant, in an action on notes, to return to the witness stand, after having testified on direct and cross-examination, to testify for the first time that plaintiff agreed to look to a third party, who agreed to pay the notes, and to release defendant from liability thereon, held within the sound discretion of the trial judge. 7. Novation

12-Defendant's testimony held sufficient to establish novation.

In an action on notes, defendant's testimony that plaintiff agreed to discharge him from liability, and accepted a third party, who agreed to assume payment of the notes, as its debtor in his place, held sufficient to establish such

fact.

Appeal from District Court, Dallas County; E. B. Mure, Judge.

Action by the Continental Gin Company against H. H. Gardner and another. Judgment for defendant Gardner, and plaintiff appeals. Affirmed.

which Thompson's liability to appellant rested constituted a novation of the orginal undertaking between appellant and appellee by the terms of which appellee became absolved from liability and the whole of the liability was transferred exclusively to Thompson.

The three principal points upon which the appeal is rested may be succinctly stated as follows:

Appellant contends that the answer given by the jury to the special issue submitted is meaningless, and, accordingly, does not express a finding upon which a judgment can be based.

Secondly, appellant contends that all those parts of appellee's answer to the petition wherein appellee attempts to set forth as a defense a novation of the contract were characterized by the frailties of vagueness and indefiniteness to that extent which renders novation; that they express mere legal conthem wholly impotent to constitute a plea of clusions, and supply to appellant no notice of the facts which were to have been relied upon as a defense to this cause of action, and, accordingly, the court committed error in refusing to sustain appellant's special exceptions to this effect directed against those portions of the answer.

The third principal ground relied upon by appellant is that the record discloses no con

sideration for a release by appellant of appellee, and therefore, even if such contract as appellee asserts to have been made was in fact made, it would for this reason be without any legal effect.

Coke & Coke, of Dallas, for appellant. Spence, Haven & Sinithdeal, of Dallas, for trial court was as follows: appellee.

The issue submitted to the jury by the

HAMILTON, J. This is an appeal from a judgment rendered against appellant upon the answer of a jury to a special issue submitted in the trial court.

Appellant sold H. H. Gardner certain gin machinery, and Gardner executed and delivered to appellant his promissory notes secured by a chattel mortgage upon the machinery, the notes representing the purchase price of the machinery. While these notes and the mortgage incumbrance upon the property securing them were in existence appellee sold the property to J. W. Thompson, who assumed as a part of the purchase price the indebtedness to appellant. After Thompson assumed the payment of the notes they were extended from time to time by appellant, and, finally, after demand for payment, and after Thompson had defaulted, appellant instituted suit against both Gardner and Thompson for recovery upon the notes and for foreclosure of the chattel mortgage. Thompson did not resist the suit, but Gardner answered, and defended upon the ground, among others not necessary to mention, that the contract upon

"When Gardner sold and conveyed to J. W. Thompson the gin machinery described in the chattel mortgage given by Gardner to Ennis Munger, trustee, and as part consideration thereof Thompson assumed the payment of Gardner's two notes to Continental Gin Com

pany, and when he (Thompson) indorsed said notes in plaintiff's office, then was it or not agreed by Continental Gin Company, acting through John A. Pope, that Thompson should be the sole debtor on said notes and that Gardner should be released from liability thereon?"

The jury's answer in response to this question was in the following language: "Yes; we, the jury, find in favor of defendant, H. H. Gardner."

[1, 2] We think the answer made by the jury to the question submitted is clear, distinct, and definite, and that it conveys the idea, and no other, that appellant agreed that Thompson should be the sole debtor on the notes, and that Gardner should be released. It is immaterial what language or form of expression a jury uses to inform the court of its findings upon a special issue, just so the answer, however worded, constitutes a

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response to the question, conveying a clear and definite meaning as to what the jury has found. If an answer constitutes a finding of a disputed fact which the question seeks to settle, it is a finality, and constitutes the basis of a judgment.

the debtor therein to the exclusion of the original debtor.

We hold the view that the allegations readily could have been rendered more full and explicit, and we are constrained to suggest that, although the allegations are to be con

obviated and time conserved by the exercise of greater care on the part of members of the bar than that evidenced in this pleading to render their allegations in such cases as this so specific, clear, and definite as to avoid any question or contention on the part of opposing counsel to be disposed of by appellate courts.

[5] The third above-designated ground of complaint we do not regard as meritorious. It is true that novation is made by contract, and in no other way, and it is subject to all the rules which cover the field of contracts in general. That is to say, there must be necessary parties to the undertaking, there must be an existing, valid obligaton to be displaced, there must be a mutual agreement, and there must be a proper consideration. However, it seems to be well settled that, if a creditor owes a debtor money, and a third party agrees to pay the debt to the creditor, and the creditor agrees to accept such third party instead of the original debtor as payor of the debt, and also agrees to discharge the original debtor from his obligation, this is sufficient to constitute a valid novation, and finally discharge the original debtor.

[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 seems to us, comprehended both a general demurrer and special exceptions to that portion of the answer which undertook to plead as a defense novation of contract. They complain of the insufficiency of the allegations on this feature of the case, not merely because of vagueness and indefiniteness of statement, but also because of absence of allegations of facts to be relied upon as a defense. But, considered either as special exceptions or as in the nature of a general demurrer to the allegations of novation, we do not think the court committed any error in refusing to sustain them. We deem it unnecessary to set out in this connection all that portion of the petition excepted to. We deem it sufficient merely to state, in substance, the elements of fact alleged. Appellee pleaded that after the notes sued upon were executed by him he sold all the property mortgaged to secure them to Thompson, and that, as a part of the consideration for the purchase by Thompson, the latter specially assumed the payment of the notes according to their terms, tenor, and effect. He alleged that the transaction was well known to appellant, and that it in part was consummated in appellant's office at its place of business in Dallas, Tex., and that, when appellant was informed of the sale, and requested to produce the notes so that Thompson might evidence his agreement to pay them by signing his name on them, they were produced by appellant, tendered to Thompson for his signature, and, at appellant's direction, Thompson signed his name upon the backs of them, thereby making them his own, and that "plaintiff (appellant) accepted the said J. W. Thompson's assumption of the payment thereof, and his agreement with this defendant to pay the same in accordance with their terms, tenor, and effect, and thereby recognized and accepted the said J. W. Thompson as its debtor on said notes in lieu of this defendant."

[4] The effect of the allegation, in our view, is to declare that Thompson agreed to become exclusively liable for appellee's indebtedness; that appellant agreed that appellee's liability should cease, and that it would look solely to Thompson for payment. If the parties at interest assent to the extinguishment of an old debt by agreeing that a third party exclusively shall assume it, and such third party, acting within the understanding, assumes the sole liability, this is a novation, and the original debtor is discharged. A new obligation is thereby substituted for the existing one, and liability is thereafter against

[6] Complaint is made that the court erred in permitting appellee to testify that appellant agreed to look to Thompson and to release appellee from liability on the notes, for the reason that appellee was recalled to the stand near the conclusion of the trial and permitted to give such evidence after he had already previously fully testified, the testimony not being in rebuttal of any evidence offered by appellant. It is argued in this same connection that appellee had been on the stand, had testified on direct examination and on cross-examination, and had given no evidence tending to the effect that appellant had agreed to release him from the indebtedness, and that, under these conditions, the court excused him from the witness stand, permitted him to go into consultation with his attorneys, and thereafter return to the witness stand and give this evidence for the first time, over appellant's objection and protest. This is a matter which we think was in the sound discretion of the trial judge, and we are not warranted in saying, under the record, that this discretion was abused in the conduct complained about.

[7] The pleadings put in issue the question of whether or not appellant agreed to discharge appellee from his original undertaking and accepted Thompson as its debtor in his place. If Gardner's testimony is true (and the jury passed upon both its weight and his

(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 rent

The judgment of the trial court accordingly ed the farm on the usual terms, one-third must be affirmed.

"Be it remembered that upon the trial of the above numbered and entitled cause, and while the testimony was being introduced upon the trial of said cause, and while the defendant O. F. Schmaultz was being cross-examined by Mr. W. W. Naman, attorney for the defendant 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.

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

"The Court: Let's get going. "Mr. Rogers: We want to make a motion to exclude the remarks of the court that, if counsel for the opposite side would agree to the 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 proposition were highly prejudicial to the rights R. 472, 60 S. W. 877. Also, this case is difof 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 correct his remarks to the jury.

"The Court: Let the record show that counsel for the defendant made the remark, in sub-parties refused to agree to such inspection;

(248 S. W.)

ST. LOUIS SOUTHWESTERN RY. CO. OF
TEXAS v. BROWN & CO. (No. 2694.)
(Court of Civil Appeals of Texas. Texarkana.
Feb. 8, 1923.)

1. Carriers 227 (3)—Judgment against car-
rier for loss of hogs must be reversed in ab-
sence of evidence to support a finding as to
their value.

In a shipper's action against a railroad company for the value of hogs escaped from the railway stock pen because of the negligent maintenance of the stock pen, a judgment for plaintiff must be reversed in the absence of evidence to support a finding as to the value of the

hogs sued for.

2. Carriers 217(2)-Shippers' fault and not fault of carrier as to defective stock pen held proximate cause of loss of hogs so that they could not recover.

Where shippers at 5 o'clock p. m. placed hogs in the carrier's stock pen preparatory to shipment, and, noticing a hole in the fence large enough for the hogs to get through, guarded it for a while, and then left to eat supper, and the hogs were loaded at 6:45 p. m., but 28 of them had escaped through the hole in the fence, no recovery for the hogs thus escaping can be had against the carrier, since the shippers should have guarded the hole for 30 or 40 minutes longer, or for trifling expense have repaired it; their immediate fault, and not the remote fault of the carrier, being the proximate cause of the loss.

Appeal from Titus County Court; Dan M. Cook, Judge.

Action by Brown & Co. against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

"We drove them in the stock pen about 5 o'clock p. m. There was a hole in the stock pen, in the northeast corner. A plank was off We saw the hole when we first got there. We that made a hole about four or five feet long. guarded it awhile. * We quit guarding the hole and went off uptown in order to get something to eat."

Appellees claim that the hogs escaped from the pen through that hole while they "were away" at supper, and this was, as it inferably appears, before the bill of lading was issued. The assistants, or employees, seem to have gone with the appellees to eat supper. The appellant denied that there was a delivery to it of more than 77 hogs for shipment. It was undisputed that the railway company transported and delivered 77 hogs to the consignees at Fort Worth. The following agreed facts are quoted from the record:

"The hogs were placed in the pen at 5 o'clock p. m. January 10, 1922. They were loaded at 6:45 p. m. same date, and moved same date about 8 p. m. on train 15."

The appellees and their employees loaded the hogs in the car.

After hearing the evidence, the court entered judgment for the appellees, finding $288.79 as the value of the 28 hogs.

J. M. Burford, of Dallas, for appellant. Wilkinson & Cook, of Mt. Pleasant, for appellees.

LEVY, J. (after stating the facts as above). [1] It is insisted by appellant, and the statement of facts sustains the contention, that there is a lack of any evidence showing, or tending to show, the value of the hogs sued for. There is some evidence to show that the hogs would weigh as much as 190 pounds apiece, but no witness undertakes to testify about their selling price or market value. Consequently the finding of the court as to value, being without any evidence to support it, would have to be set aside, operating to

The appellees brought the suit to recover the value of 28 head of hogs alleged to have escaped from the railway stock pen and strayed away by reason of the negligent maintenance of the stock pen by the railway company. The appellees claim and testified that they drove to town and placed in the 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 "run with dogs" in order to "handle them." The appellees had seven or eight employees assisting in driving and caring for the hogs. The hogs arrived at Cookville and were placed in the stock pen about 5 o'clock p. m., January 10, 1922. One of the appellees testified as follows:

way company for shipment, and that they were afterwards "delivered" to the railway company for shipment and a bill of lading was issued and delivered therefor. It further affirmatively appears that the hogs were loaded by appellees and their employees in a car at 6:45 o'clock p. m., shortly after the bill of lading was issued. The hogs, seem

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-7