*1 Supreme Reports, 104. Court Yol. of bestow inhabitants of full upon city Dallas of self- power shall all have exercise of government, powers municipal charter, not this prohibited by some law government general of State of Texas, provisions of the Constitution Texas.” State of A corporation possesses no not derived from its municipal power charter, therefore, terms, “full general powers self-government,” of and “all of char- municipal not powers government prohibited by ter,” add terms charter. still must look to nothing to the We the charter to sustain an act done authority corporation. Co., 28 Cyc., 258, Powers; Brenham Water City of of fix and city authority The charter of Dallas committed Commissioners, of regulate rates Board of telephone companies to not a but is the method of special executing prescribed power, above is not general power; therefore, invoiced and clause quoted applicable to these facts. The District Court erred in in question the ordinance holding is valid—it District is therefore ordered that judgments Court and case be Court Civil and that be reversed remanded to the District with accordance disposed this opinion.
Reversed and remanded. J. C. Baldwin Haskell National Bank.
No. 2120. Decided February 1.—Note—Alteration. promissory The alteration in a payable, date from which interest 124, 125.) (Pp. renders the instrument void. 2.—Same—Case Stated. bearing A note from maturity to a and a having been executed controversy arising the as to whether it was from not intended to bear interest cashier wrote the word pencil printed “date” therein in Held, “maturity.” that the addition made under such circumstances could surplusage construed as mere rendering payable the interest still date date) (maturity material, but the alteration was making the date which the instrument to draw ambiguous, interest at least and made the note void. (Pp. 123-125.) —Same—Recovery Original Indebtedness. Where the a promissory fraudulent, alteration of payee was not but made for the conforming it to actual contract it was believed to have been given still, payee may appropriate pleadings, under recover the original indebtedness statutory (Pp. 125, 126.) interest.
OX MOTION FOB BE2IEARING. Supreme Questions —Practice in Fact—Rendering Judg- Court—Waiver ment. Recovery a promissory noté been reversed and the cause remanded because of avoiding instrument, plaintiff, error, the defendant in who had also sought in the original indebtedness, alternative recover waiving questions controverted of fact as to the amount could have the and rendered iudgment reformed undisputed Court for the bv debt. 126, 127.) (Pp. Bank. Haskell National 1911.] District, Third. in an appeal Appeals, the Court Error to *2 County. from Haskell on It was affirmed and recovered judgment. sued Baldwin The bank error. Baldwin, obtained who writ thereupon appeal Where a is contract Murchison, in error. for Helton & a written, there is conflict between and and partly printed, partly 584; 9 Sim Cyc., writing the writing, prevail. printing ians Contracts, a violation of a note which necessitates Any promissory un- an words requires of English rules grammar, the usual the note construction, in order give meaning and strained be- effect it as it had changed, after was legal meaning same the fore a material alteration of note. Simkins is changed, Contracts, without payee Any made maker, and effect of any degree legal which in varies the of the a material alteration maker, to the is prejudice instrument Heirs 384; Park v. Bro., Texas, v. Halff & 89 the note.. destroys Otto Texas, 561; v. 39 Glover, 469; Breedlove, 23 Texas, Harper Bogarth 322; Texas, 367; Texas, 41 Bowser v. 74 Meade San- Stroud, Cole, Bluntzer, 820; 360; W., 7 Civ. Dewees S. App., Tеxas didge, 2 257, 262, 268. Law, 228, *3 L. Baldwin.” “J. to bank *4 in error plaintiff had inscribed in a blank left in space note, the the so as make read, to if both words are same to con- be sidered as “date parts maturity,” could such change be up- held it the that meant same as the-ground on written? thing originally not think so. In event any We can it can not be denied that the in- was, sertion оf the word “date” left ambiguous and uncertain what n beyond when the was left doubt signed, clear explicit. Nor do we think that legal the effect evident alteration can that it was a mere ground defeated the memorandum. As we matter it is a different from a view the quite marginal mere memorandum, which is sometimes treated as no of the nоte part proper but as a memorandum information convenience. simply bank below, The the court prayed petition in which tried, was that if note should the case the be held invalid that recover on the was purpose it indebtedness which it the might original same out in setting detail, of the note to in this and asks fully that if that recovery we should no can be had on adjudge its the the favor for the amount of indebtedness shown undisputed -The as evidence. amount indebtedness claimed the bank and of this under this count is the judgment petition which sought five four hundred eleven and one-hundredths sum of two thousand strongly the evidence tends to show that if An dollars. examination bank, held Baldwin’s notеs then the reference computed ' Í04. Reports, Yol. it, this which owed and his admitted overdraft was sum that the had, about after the which he money sums in drafts applying witnesses is to the this of all time, the evidence paid. However, effect, substance, that the bank in that Baldwin was claiming interest,” him what he “double in a considerable charged very calls him, He admitted credit three hundred sum. claims allowed and five the com- one-hundredths dollars was deducted in sixty-one time, theretofore putation made at allowance- for interest him. charged other hand seems to have been improperly the contention bank no interest was usurious or excessive at any time above named was charged that credit in the sum allowed in error, in order to differences between adjust them as to methods and manner of to secure a satisfac- payment and tory arrangement fact, indebtedness. Whatever be the may that all due parties agreed certain that the real.amount $2,050, various paymеnts, was the sum of and this sum we are authorized to fixed and Baldwin’s accept definite amount of debt. think fair analysis We of the evidence demonstrates review in change note, we was neither discussing, have been covinous nor fraudulent, but was made with the honest make it to 'the agreement conform real and that such parties altеration should discharge liability. therefore Baldwin from all laid down .This the rule this court in an our opinion by present Bro., Chief in Otto v. Halff & Justice 384. The argument ms, seems not only unanswerable, court there but to so effect- ually settle the that further question discussion citation authority is unnecessary. The evidence parties, independent of the terms of the shows that one year to have within which to sum pay the Whether agreed upon. this be with or without question evidence and disputed with reference to which there is the. no in the court finding below or the Court of Appeals. is averred by Again, bank word, “date,” addition of the was agreed to by Baldwin. that by request their for a rendition proрer judgment this court concerned, defendant held, would be so far as our action is his waived to a submission of right have this issue. But in view of the fact that does raise the evidence issue as to the date of the pay- ment, independent of the note, since there finding interest, we question of would not be authorized, reason, Tor reverse and reform the judgment. reason the judgment of the *5 Court of Civil District Appeals Court be reversed and the cause remanded for further proceeding in accordance with opinion.
ON MOTION FOR REHEARING. court, In its motion for a rehearing seasonably filed the de- in error remits “all fendant amounts due it expressly except the said $2,050 of six principаl sum with interest thereon from the percent 28th of date on January, 1908, the which same was to have day been m By. Chicago, 1911. Coffee v. Co. 1. G. J waive its of right now submission expressly does here paid, the as to authorized the question plaintiff of issue .error the note” and asks its motion for be rehearing granted change in recovery our be so as to decree to it a judgment reformed 28, with from the due, admitted interest January sum in error testimony under the contention 1908, when plaintiff think interest was become due such debt, payable. such we follows the motion should logically and remittitur waiver so rendered. judgment granted is therefore ordered that be and rehearing motion rendered in favor of granted, same is hereby judgment here Bank, Haskell National L. Baldwin the sum against the $2,050, J. 28, 1908. six annum January with percent per to the Court of and of this writ of The costs appeal to this are defendant in error and adjudged against error are error. against plaintiff other adjudged costs Railway Company. Chicago, Rock Island & J. v. Gulf Cоffee C. 22, February No. Decided Negligence—Causal Connection—unarge. Crossing—Contributory —Collision at plaintiff driving railway crossing over a struck and where a case In train, an instruction that he was recover injured by drive on the defendant entitled to if caused t.o by negligent omission statutory signals track crossing negligence part “without fault . that caused or injuries” proximately contributed his was not affirmatively erroneous as sub- mitting proximate the issue of cause where the causal connection was ques- not the given tionable. An that if negligent instruction he was in driving on track listening, looking thereby injured, without listened he would have discovered the consistent with the and was when if he had looked or train, approaching he could not recover was preceding, together presented and the two phases 128-130.) (Pp. the issue. —Cases Discussed. Antonio, Texas, 225, v. approved San 100 Parks and followed. Texas & P. Texas, 264, Ry McCoy, Co. distinguished. similar eases (Pp. 130.) Error Court of Civil Appeals, District, Second in an appеal County. Wise sued the Coffee railway company had judgment. Defendant On reversal and remand the appealed. obtained appellee writ of error on account conflict rulings. Carswell, R. E. Robert Miller, Carswell and Stephens & for plain tiff error. Said language not, did charge held by the of Civil submit Appeals, issue not raised evidence, nor" find jury they might instruct the plaintiff’s negligence did not conflict to his Said injury. contribute decision is in irreconcilable case El Paso N. with the & E. Ry. v.Co. Campbell, 100 S. W., 170, and also Parks Co., San Antonio Trac. 222; Gulf, &C. S. F. Co. Ry. Rowland, Texas, 365; Texas & notes Am. Eng. Ency. McGuire, for defendant in error. G. McConnell and Gordon H. void, for altered and in order materially therefore When original necessary the holder recover on the indebtedness not for such alteration to the extent of showing explain a one, intent, and if a material purpose, the alteration is not fraudulent bad, is not or material Otto v. explanation necessary. good 367; Instruments, Daniel sec. Bros., Negotiable Halff “date” vary legal addition the word did effect The to the instrument but left same it was before prejudice addition and was immaterial. such Ramsey Mr. delivered the court. opinion Justice 28, 1907, L. years January For some before J. Baldwin had been of The Haskell National Bank. or before date customer owed bank several thousand dollars. We from the record gather unsatis- parties relations between become mutually Baldwin seems to have the bank was factory. thought charging usurious had con- interest, him both and excessive while the bank other that his to it excessive and that for cluded indebtedness he was not a desirable After considerable negotia- customer. reasons tion it was should his indеbtedness finally pay agreed dollars and that down to of two thousand and fifty the bank the bank the sum due in Ac- year. his note this amount one should'take duly to the bank was in fact paid note the amount cordingly agreed executed, paid and on. one of thereupon following blank notes used the bank: Bepobts, Vol. 28, 1907. Haskell, Texas, . Jan. “$2050.00 rеceived, I, we or either after date value or before one year “On Bank, two of the Haskell national the order us promise pay house no-100 dollars at their banking fifty thousand Haskell, Texas, annum from interest per with ten percent pay- made And event default is until paid. . . . and it is in the hands at maturity, placed this note ment of attоrney an addi- same, then suit is on the brought collection, this shall and interest of on the principal ten percent tional amount of endorsers, makers and fees. The attorney’s be added to the same pro- notice of for payment protest waive severally, presentment court upon nonpay- at the first term of оf suit and the bringing test, ment of time of pay- and also consent that done same is without notice whether ment extended consideration.
Notes
had notes the that Baldwin executed many shown It was from maturity their interest they terms bore by in case every and that from It appears the bank generally. custom of that this the execution after the the immediately almost the evidence .that fact that of the bank to the cashier attention of the called Baldwin the by which was not admitted from maturity, drew interest the note note, Baldwin’s had examined the which confirmed he until cashier mistake, and there was á the cashier claimed that whereupon position, that terest in- drawn their should have to the note conformably agreement cashier, the from the evidence of appears date. It also from Ballard, had active to Baldwin that one who been he said Couch, that date, interest that the note was to bear from knew in the negotiations, Ballard said. effect, that he would abide whatever by in replied, who thereafter is not admitted Baldwin. Soon statement, however, This him, that agree- said to the they testify, Ballard who saw Couch note should bear interest the unequivocal express ment in this, little time after left rather indefinite That some from date. note, in wrote, the blank the space in in pencil, Couch the after circum- word, “date.” the maturity, Touching the word the he “I the put reasons for-his so doing says: stances, purposes Ballard, I had with of the bank (one after the talk there memoranda all "for right, said would be the in directors) future, as as the bank Baldwin well Mr. a memorandum for. die, there possibly I not be might might but what did not know I there I wanted little notation on note, and a оf this at the settlement record tend- is in the was.” There evidence what contract Baldwin from show any change the first protested against show that ing to which would have authorized the facts also denied in a change. to have decreed even an instrument “it is a material alteration of It is well settled run, is either interest begin from which thе time change to the time words, whether the erasure of insertion, alteration or 419. That a ma P., L. 3 Enc. & or delayed.” thereby accelerated the consent instrument, an terial alteration 1911.] Haskell National Bank. will avoid all recovery on same no longer open question Otto v. Halff Bro., 89 Texas, St., State. Am. (59 56). theWas not. material? The Court of Civil held This seems to have been based on there was holding theory expression no “difference between date.” ‘maturity’ If, facts, in the reference light determined held that contentions of should be the inserted parties, several word “date” was intended not and to word supersede printed intention from that evidenced lan- express different stood, as it but to be read with such harmony guage printed and as of the word “date” thing, word the same the addition meaning but and there some fair .would be idle would be warrant surplusage us But it seems to opinion Appeals. cashier, that this was not intention of the do we clear nor believe there is any testimony reсord which this view. presents Nor we think in the the con- light do situation presented tention of the can intention be respective parties gathered “where, is a rule of almost universal instrument. application that forms, as in use contract is printed printed partly partly written, the is a between there conflict the writing, printing writing while as used рrevail.” Cye., there Again in the no irreconcilable use of words “ma- repugnancy together, date,” it must strike turity any as, one under circumstances any unusual and as quite to the here involved applied controversy unreasonable to in- utterly conclude wrought on, tended instrument wrought sued the insertion of “date.” If the note been drawn as to bear originally so and if thereafter without