M. H. Thomas Co. v. Hawthorne

REPORTER SOUTHWESTERN -906 tending impeach Judgment closed not because such should be reversed discredit testimony. n of failure. such refusal or remarks, full concur in With these @=>140(2) person who 4>.Trial —That O’QUINN Judge disposition he with testimony is not could contradict dead of this case. has made refusing ground on for instruct verdict suspicion. testimony, from such where free re- should law that the court It is not the uncontradicted on a fuse instruct verdict for suspicion, testimony, free from flaw or only person contra- could who reason that the dict M. H. THOMAS & CO. v. HAWTHORNE testimony is dead. 8701.)* (No. et al. &wkey;>(26> of Negligence Question 5. — (Court Appeals of Civil negfigence may of tributory Texas. Dallas. of law. be one Rehearing Nov. 1922. Denied proof reasonable such that no When 16, 1922.) Dec. except that can derived from it deduction neg- conclusively of an absence it ligence, establishes @=>75 Estoppel &wkey;>234(7)— 1. negli- —Sales question Cotton of freedom estopped owners not subject to assert to cotton law, title gence the exclusive of is one intrusted to bailee. court. control of plaintiffs, neighbor- Where in the farmers village, of hood merchant tegrity, Court, intrusted their cotton Coun- Dallas Appeal from District village, long-standing in the in- Judge. Whitehurst, ty; F.W. representation his on he would others Hawthorne R. C. Action his store for them in leased warehouse From space Dallas, shipped M. H. Thomas & Co. defendant, it to appeals. Affirmed. plaintiffs, from whom he received advances on defendant the cot- for value, ton to its $10 within bale of market Dallas, Smithdeal, for Spence, Haven & disappeared, and thereafter held that the doc- appellant. plain- emptor applied, and that trine of caveat Coombes, Allen, Cock- N. W. B. Robt. estopped ownership tiffs were claim Dallas, O’Donnell, for rell, & having McBride against defendant, done noth- the cotton beyond conferring possession appellees. ing the mere bailee, defendant, him their mislead on negligent trusting having been and not bailee’s Appellees HAMILTON, as- and their J. failing investigate his or in word owned, severally, signors individual different probity. previous dealings, his in view All of them 1918. the fall of lots of cotton number) (nine resided farmers who @=>l Buyer from bailee of cotton 2. Factors- — village vicinity Seagoville, a in Dal- in las bales of cotton owned escape liability to true ownérs could not (cid:127) county, aggregate number of Tex. The “factor.” by them -was 169. The plaintiffs, neighbor- in the Where farmers village, highest bales intrusted their cotton to a number of owned one hood village, long-standing 68; in- merchant number the lowest of bales them was representation tegrity, on that he would 6. cotton was all lots was This space them in his leased warehouse store except yard Seagoville, lying at the cotton shipped defendant, Dallas, it to in whom received advances and he Forney Kleburg. at 16 bales at bales on cotton to Kleburg villages Seago- Forney and near value, a bale of market $10 within All ville. stored disappeared, held, defendant, thereafter exposed yards the weather agreement the bailee with whose deteriorating being damaged, while the commission, but to allow bailee to sell on owners, kept properly appellees, margined, its several held for an if could sell the not owners, tor, liability plaintiffs escape price. the true advance ground defendant was a fac- on the engaged W. O. Cardwell was mer- agent ’pursues “factor” buy- cantile business and business goods selling for a commission business ing selling Seagoville. Card- .cotton consigned intrusted to his or merchandise Seagoville years many well lived in had purpose possession sale the owner engaged in been the same business owner—a commission merchant. during period, years prior about 10 definitions, [Ed. Noto.—Por other Words see ¡Second happening of the event out Series, .liti- Phrases, First and Factor.! gation father many arose. His had been a business Seagoville years man in he him- Rehearing. before Motion for On Apparently entered business. self had — @=>140(2) Instructed Trial 3. dealings always conduct been char- plaintiff unoontradicted of in- by honesty, integrity, upright- acterized proper. parties held terested Appellees themselves had ness. transacted a trial court to instruct It him, and he had business confidence upon the uneontradieted a verdict Upon all. his career ad- positive parties when it is interested man, judged be an honest them to dis-, so unequivocal, is no circumstance and there Digests topic Key-Numbered see same in all Indexes other eases KEY-NUMBER @=>For *writ January'24, error refused Tes.) & CO. v. THOMAS HAWTHORNE M. H. 907 (245 3.W.) rangement discloses, far circumstance & record was M. Thomas Co. was H. actually impeach ren- had to existed to to advance Cardwell cotton shipped money equivocal. agreement der it In his transac- cotton and delivered under the bought per he various small tions seems that to market $10 within of its bale value, protect and farm- agreeing lots from local of cotton owners H. Cardwell M. to shipped away large to margins volumes ers and & mar- Thomas Co. with ket case cotton factors and dealers. As decline. drafts were drawn 20, 1918, prior presented they Some to time November promptly paid by appel- were appeared spirit to be what shipments lant. arrived In due course each of the Cardwell? pro- friendly for the Dallas, concern and solicitation delivered, passed was against through exposure appiellees’ deteriora- tection cotton appellant. under the dominion of quality and value following tion to time The letter of confirmation to weather, began, for some inclement agree- Cardwell from reflects the persisted in, importuning de- subsisting them to parties ment between these at possession or- him of their liver to der that cotton respective shipments time made, were Dallas, might ship to to he there and under which the drafts with bills of lad- represented He to ing in warehouse. be stored paid by appellant: attached were expansive floor he under lease 17, “Oct. 1918. Compress space Shippers’ & Ware- at Cardwell, Seagoville, “W. O. Texas.—Dear stated, Company He in sub- in Dallas. house arrangement by Sir: We confirm ac-we stance, space at of them that to each cept cotton, you from 300 bales of on the fol- unoccupied, there lowing York. 200 was warehouse December, terms: 100 bales 50 on New their December, him store added cost to Xork, would be no to bales 25 on New Middling nothing Middling. basis them, that if would below for We cotton there per bale, advance market value within $10 pur- him it to deliver you protect margins to us with if the market pose Dallas, ship it in it to store he would your fixed declines. Price be at call at protect it re- while the warehouse time before November 25th within market blanket insurance which there with mained It hours. is understood between us that representation already This he had. privilege selling have the this cotton imme- of the own- was to some insurance made diately calls your respond failure to to our By representa- means, margins. by ers. Please confirm this re- M, [Signed] them, they turn mail. pany, H. Thomas & tions made to would Com- enabled By-.” injury protect against their cotton exposure market awaited better 1919, January, after the middle Sometime Finally each them ac- which to sell. price having until the of cotton declined request suggestion thus ceded to the margins existing against insufficient, it were by him, and each of them delivered made appellant, through agents, attempted shipment Dallas. cotton to Cardwell with Cardwell and obtain from communicate themselves surren- Some of the owners margin protect him additional against cotton yard yard at the tickets cotton dered prices. declining un- were delivery (cid:127)and freight cotton made to him effect communication with able to Seagoville. depot at Others delivered margin. from him obtain funds Whereupon, for further he, by present- their tickets to Cardwell margin being absorbed and acquired posses- yard, ing them the failing respond Cardwell calls sion and had delivered at the cotton margin, by appel- further he was closed out depot shipment. lant. cotton, possession of was thus About time be- Cardwell’s whereabouts by acquired from each Cardwell of the own- came unknown he could not located. ers, shipped by M. was Cardwell to H. Thom- having This circumstance become known to as Co. at first lot cotton & Dallas. The appellees, they began investigation to make 17, shipped acquired thus was October with reference to which had been acquired other lots and the so various shipped by to Dallas Cardwell under the by shipped on him different dates there- agreement them, each had with after, shipment the last about made then, time, for the first discovered the true January 15, each instance shipments having facts as to the been made shipment a drawn on M. H. draft was Thom- name, having in Cardwell’s as to the drafts lading & the bill of as to and the attached Co. paid by appellant, been drawn shipment each draft. In the and also fact all the identical bales consigned seems to been have of cotton delivered shipments Cardwell under the notify order, “Shipper’s M. H. Thomas Co.”& except him, bales, made shipments pursuant Cardwell made exported appellant. sold Cardwell understanding Co., M. H. Thomas & appellees any at nó in- terms of which Cardwell was to shipments deliver formation were accept H. Thomas & to and M. Co. was made, made in the manner that he upon stipulated him 300 bales of cotton shipping lading under bills of terms, provisions of himself, and one of the consigning ar- or that the REPORTER SOUTHWESTERN shipper's order, notify & “to M. H. Thomas causes of action $!o.” claiming 'those him to two, both other R. uncontradicted C. Hawthorne and Luther Bow- ers, brought appellees appellees, they the ac- the and their witnesses was and against appellant tion cotton received from cotton delivered to in for the of the effect that the was value when shipment stored it was Cardwell and sold Cardwell for Shippers’ Compress against appellant & appellant, and the also and warehouse of the Compress Shippers’ Company, names and in the the pany & Warehouse Com- Warehouse receipts recovery owners, in issued for of the 7 bales -of cotton and warehouse the remaining Ship- instanc- In some still in the warehouse the of such owners. names the es the pers’ Compress Company representations Cardwell & in were made Warehouse city had blanket that he of Dallas. the cotton owners of protect it, as above tried would The case was before court and a insurance which jury, and, nothing said at the conclusion of the was introduc- instances In other stated. evidence, peremptory any tion of was instruction time at and Cardwell owner between the given to return a in fa- insurance. matter of with reference appellees the cot- vor of for the value of understand- transactions of the each by appellant, disposed of ton received and the owner when ing was with Cardwell respective aggregate amounts of the to less the was himself he his cotton to sell decided being ones of farmers that borrowed different sale; only condition the the best offer make the shipment cotton, give of the from Cardwell after obtaining was after Shippers’ appellant against and buy him at and also opportunity to an price. Cardwell Company Compress ti- & Warehouse same possession of, to, any tle still & and the 7 of cotton bales re- ever obtained owners None Shippers’ remaining Compress with shipment, and ceipt the cotton after Company any inquiry of the with refer- Warehouse of them none disap- subject storage charges trial, after Cardwell accrued it until ence stated, cotton, judg- peared as above thereon. A verdict was rendered and exported conformity by appellant ment in with this instruc- entered sold owners, appeal judgment tion, have al- as we and from that Dallas. All farmers, prosecuted said, ready werq them and none of court. shipping any experience appeal primarily upon cot- rested two had ever rpie warehousing general propositions. proposition be- cotton. each ton first Dallas that should reversed and ren the cotton stored lieved that following reasons, Ap names, respective dered to wit: compress their at the being pellant, purchaser fide bona any val intimation of them had none uable consideration without actual or appellant either arrangement Cardwell and between any part constructive notice of claim on the any had thereunder or of transactions of the appellees, being policy appellant. between Cardwell and purchasers protect law to innocent for value shipped, during After cotton was suppress by favoring hidden and to titles period compress Dallas, it was at the the some of of openly who deal those with received the owners advancements good faith, ought prevail. asserts executing money from Cardwell without In this connection asserts that giving any him of in- note or acts, appellees, their own clothed Card- were had debtedness. These transactions un- ownership well with the indicia of of their different In some in- der circumstances. cotton, giving enabling of it and thus money whom the stances those to vanced was ad- impose upon appellant by him to merely indicated to Cardwell inducing appellant pos- to believe that he money particular purpose, needed authority pledge sessed cotton to se- suggested whereupon ply sup- would cure advancements that he was the owner immediately it and did so. In other in- authority endowed with all the advancements, he made stances where the (cid:127) an owner sell it. owners to whom tOk were made went Proceeding in connection, appel- the same that, him and stated in view of fact dealings lant asserts its with Cardwell were money they needed were inclined to sell the in accordance with established customs of Dallas stored in it relied trade the same evi-" response, price go he ..insisted that the would ownership dence of which all cotton mer- higher, that should not sell but should rely upon pur- chants and cotton factors hold their cotton for the benefit of the ad- chasing price cotton, that, accordingly, vance in the meantime he would supply them with needed funds. was Cardwell invested with the indicia farmers, being ownership unable to cotton, obtain either of but in addi- circumstance, or the value the cotton thereof after appar- discov- tion to this Cardwell’s default, ering Cardwell’s entered into a ent relation to cotton with reference to among whereby ownership

transaction themselves sev- that was ever considered assigned respective usages their by, claims customs of en^ & co. Tex.) h. Thomas m. hawthoRNE ’ (245 S.W.) | transactions, making pleadings sues suck raised both in the trade voluntary appellees, through own evidence. since acts, why of his evidences Additional reasons against should be cotton or obtain advances reversed sell the embodied com- plaints agaiñst leading questions propounded of trade the customs in accordance understanding depositions merchants in and the common in the cotton heard to pledge manner also business, they cannot be in now of the witnesses rendered certain authority dispute to their depositions, Cardwell’s answers to the impose respon- so as to contended sive and or sell that the answers were liability And, upon upon appellant expressions opinions legal of mere proposi- conclusions, phase case embodied in their also natures argumentative. appellant' tion, further conten- advances the were wholly that, undisputed. in a cot- of cotton facts when an owner material are tion ton er weigh- public parties yard All well perfidy control of to the transactions under with Card- covering yard negligently equally innocent, it to tickets to surrenders the seemed and his be permits party prac- him to seem to a third deceit have been through surrender ticed obtain tickets, them all without discrimination. ship name, taking Appellant recognizes bill general elementary it in his own order, paying lading property, to his own rule that owner of without cannot be ship permits freight charges, deprived him to itof his consent unless public cotton is operation warehouse to a where law, but insists that the facts purpose of classification for the assembled and bring of this ease it within that class of cas- shipment grading prior to different to exception general es which form an to this thereby proclaims markets, owner world rule, voluntary is that if an owner his own vested both title to be such third gives conduct and consent to an- possession of cotton. other such evidence of sell or to is this same The contention made dispose property, as, otherwise of his accord- par- two nection as between innocent that ing to the customs of or universal un- trade imposed upon the fraud of ties third derstanding, usually accompany author- person that should fall the loss ity disposition, to make or sale other then circum- his own act created the one who possession is intrusted with per- permitted the stance which fraud be ownership with the indicia of or with the au- Lastly, petrated. is contended was thority disposition or sell make other appellant point a .cotton factor that goods, duty in violation of his such, took the cotton as the transaction owner, purchaser, sells them to an innocent every good who had in iiidicia of faith from Cardwell rightful owner under such circumstances ownership, accounted sold it and estopped asserting will be from his title proceeds of sale be- to Cardwell against purchaser, such since it any there- was made and demand fore fore. he, purchaser that rather than the bona fide factor, guilty is not a cotton relying ownership evidence nor it had neither the conversion since the authority person making sale, in the appel- proceeds its sale flowing should suffer the loss from the own- lees’ claim was made. misplaced er’s ities confidence. Numerous author- propositions The sum total all the set support position, are cited in of this but theory, judg- support forth in that we think the facts this case are insuffi- rendered, be reversed stated ment should appellant’s position to sustain cient general form, and summarized acts and is that such authorities. appellees conduct and the other any [1] The facts without contradiction shipped farmers whose cotton was to Dallas completely whatever to us to establish .seem by Cardwell under the circumstances above the conclusion that Cardwell’s conduct his estoppel, fully stated constituted which was dealing representations appellees with and pleaded by appellant. constituted, effect, theft fraud. Meas Under the alternative contention in- it is giving stealth, deception, gen ured terms in turpitude, sisted that trial the instruction court erred in place eral his acts and conduct peremptory jury, virtually attitude, in the same far so the case should be reversed remanded. the farmers from whom he obtained the cot Upon appeal this feature of the concerned, the follow- position ton as his would have ing propositions are advanced: The trial nothing been had he stolen it. There justified court was not instructing a «ver- the. to indicate that farmers dict, proof conflicting, because the from whom he obtained the cotton clothed the material issues and was such any that rea- ownership him with beyond They ship indicia of whatever might sonable minds reach different possession conclu- mere naked of the cotton. from though sions evidence even him no other evidence of owner was no conflict delivery making of the wit- of the cotton to him nesses, estoppel being pleaded intrusting shipment, they the is- it to him for or 245 SOUTHWESTERN REPORTER ap- representations character of rule ever mind men cease to bear knowledge any pellant good they that “a nor did withhold name is rather to chosen ^ which, appellant great than under the circum- riches” and transform a life cataclysm stances, duty knavery. to it. their to reveal rectitude And it was into since, by They test, were the same could not be ex- were not informed pected required possession suspect expect the cot- would sud- appellant. denly pervert pass ton from Cardwell to life to or defraud' would deceive appellant, of commission it cannot no act either be contended There was which, any negligence contributing part committed of them omission on the up properly effecting purpose relied can said to have been Cardwell’s against his fraudulent appellant. appellant to believe that Cardwell were therefore free drafts, paid culpable negligence failing be from take owned the cotton when upon steps yond conferring prevent upon appellant, mere a fraud equally negligence Whatever the free them. Cardwell discloses to do after neglected safeguard against failing To hold themselves of them did it. appel shipped light otherwise, undis- the cotton was facts, puted altogether1 think, lant, unavailable to it seems to ús would dis- be to openly claim. esteem and achieved defense count confidence through practice integrity, probity, shipment, and the of of Cardwell’s the each In draft instance approval upright dealing, upon by appellant paid and to ]out cot- before the relations, suspicion in and distruet Ac- business in ton was delivered Dallas. arrived and ap- delivery cotton, of conduct circumstances cordingly, upon in the absence and the of justify already paid it. pellant it. Cardwell for had plain here we think well to perfectly And be reminded that noth- is therefore It ing any that the owners of the cotton were farmers did or failed of the farmers dealings business in whose cotton never went intervened between do in the interim which the simple beyond the confines of transac- the respective shipments of cotton and the buyers. making discovery tions of of sales local None bad several of Cardwell’s faith any experience upon had had any bearing them with or the weeks thereafter knowledge appellant the and of of intricacies burdens Card- transactions between and pertain only change well, appellant commercial transactions or cause tended to expansive complicated subject-matter regard to the more and position affairs the in its among transactions, any of commerce men. Not one of them it to of or of the caused compress. had even dealt with a warehouse or any from the course act in it manner different any appellees The record pursue. discloses without contra- Had the chose circumstances, all diction facts these shipment in other farmers followed Cardwell the case of each they potent bearing upon up and right have the purpose seeing for the of estoppel equity of in reason of performed gratuitous these his undertak- farmers’ acts and conduct ing conformity pledge toward Cardwell. in with his in to them But, as the owners’ confidencein instance, rights Cardwell each relations knowledge upon apparently their rested of parties the under the would have been the in same honesty good reputation, so, consistent as transactions now stand ^ too, may appellant contended reflecting facts quent the owners’ conduct subse- equal resting him shipments payments trusted confidence foundation, the same since he was drafts. known to it and had had business relations cotton were under The owners during period years with it any duty of five diligently as follow the conduct and completely and, ap- confidence; had its steps as 'per- of Cardwell to see that he wduld pellant, acting purchaser a bona faithfully carry as fide form the out the terms of any kind, paid value and without every notice understanding instance. cotton, appellees Cardwell They justified placing rather their trust appellant than should suffer the promised loss because him do he had to what to do. His owners, through and the other upright in- their conduct and life revealed rectitude dulgent confidence, put posi- throughout past Cardwell in a all men before perpetrate tion to justified fraud. this confidence. Therefore the own- appealing However ap- ers, negligently think, statement of we did not act pellant’s position may presented through be when negligence their ab- suffer own .loss stractly, yet stripped it is resting of its their reliance force and Cardwell’s light investigate failing innocuous rendered an ex- word exported amination of all the facts which if before the cotton had to see reflect respect conduct of kept the owners it. cotton. Those acted conclusively ordinarily prudent facts reveal men act their relations did owners nothing through more to men conduct confer with other whose Cardwell domin- years consistently ion over mere cotton than to know have been invest him with possession principles true to it. Since fair deal- honest had a exception ing. possession rather to trust It is than Cardwell with such rare pellant was a bailments, mains well and the different Iocs lack of farmers. relation of cannot be he who trusts such circumstances trary ton may challenge as C. the usual 28 Sandford Jennings, 18 Tex. 174. Tes.) precludes cause man & under lis pellant any duty App. 248; puted facts ship more therefore liveries the which equity latter been beyond to show respective transaction a bailment He tories property ties is his the fraudulent cordingly, Immediately upon acquiring def sion to ship. created Although ^[2] Southwestern H.'§ shipping Tex. fruits of the circumstances violated the consent property, Cardwell § guilty title. turpitude, than its conferred in a The transactions from ownership Bros. v. terms Civ. the mere act solely through could not divest result of Cardwell’s violation 97; vendor Ca'rdweli, breaching think his Appellant, cannot he stolen v. rules appellant escaped upon force cannot effect the same as agreement drew. Under names unimpaired title continued in bailee a cotton, and deceitful it to applies, App. Tex. the trust Wilson, 2 Willson Civ. G. C. S. The doctrine of asserting contention, they, bought mere 3 R. C. rule that the owner customary way factor parted with he carried most no acts reputation constituting nothing fact of the facts the bailment Hurd, upon him the specific (Cardwell) had none. Still (Tex. to advise it of 662; Hallas for or rely & F. precisely quite without position bailment, must suffer most. cannot feature from authority to having and the that deprived in since the with them 45 S. W. owners imposed Dodd & Co. their title inducing and Cardwell mere L. bailor payment 10 and facts Civ. his fraud M. trust the transaction and between the owners harsh delivery them or appellant into 142; Tex. asserting Ry. in design, obtaining its H. any obtained reason, App.) nevertheless re- toward delivery be the maxim constituting theory storage express purpose constituted which had been in owners, having between Card- caveat in light it would have character free Co. v. outright. THOMAS & CO. possession execution his money 749; 110; by appellant’ notice a dealing of the drafts their owner- estopped record convey and various and deceit. it without act Cyc. 172 S. W. view con- v. owed purchase case and acted in personal title be Cas. him un- Bullard the cot- various we Arnold, of it to Taylor, manda- less Case emptor posses- impair owner- bailee. of his We have under under- these 188;, 3 R. with fails title par- the of error ap (245 3.W.) Ac- im- his paid the balance or credited with it. We han- ap- de- Ct. in or v. I rule subserved procedure market of that date. Then market; had drawn to New he received out of the commission basis. dled that cotton evidence. In our signments market that cotton on me out’ ket hours. any day purpose of sale on property sell it so sell follows: property is not assertion margins in event of market by appellant understanding to call for 256 C. J. than the cotton time before November 25th possession notice of the cepting liability the true factor in signed not even tion support hours”; quoted as “fixed at appellant was to Under was agreement owner for the agent a commission “Our contract We We find S. F. title In do them,without margined only thereby, factor, HAWTHORNE here since it think liable hands complaining is appellant’s York, commission Cade, appellant’s at 9 that owner, any pertaining or its open long tend to 340. He is nothing intrusted to think below upon of error and any, pursues margins. because the In other would carefully because, being provided contravention as a that the trial court did not err demand conclusion that dominion time on the market a discussion of o’clock property keep is, true purpose from 9 until with as the market was any transaction. was that with him would be deducted from what brought proceeds goods Cardwell’s in still it any true have are without merit we would pay placed dealing show that comment. further in the evidence to indicate view, fixing own that the business market commission for owner’s handling merchant. it words, who must be made to this feature of the üseful in examined all of the as- would Cardwell’s statement cotton, a factor him for it on that protected nothing over the true owner’s of sale for way.” testimony can have was that he home all the in its hands for the placed propositions Cardwell under privilege 2; of his agent, testified as merchandise if he would tell us that he failure to fix purpose morning title or immediately admissibility price A one who them, that within declines. The law more nor advances it a factor of who derives with its hands assignments agreed call at rights. during it, cotton sold open. is, selling New was to be applicable desired to Cardwell. does not wrongful we over- could bull factor, would property could facts do ‘to close thereby, he could respond applica- further market owner. law of selling there- was a if day’s aon York mar- wire lack that The less any Ac- be be or . EEPOETER 245 SOUTHWESTERN Each element of

tailing terial pounded ositions. witnesses the fied the tified to a those peremptory instruction based ibility lated to stand they the record or otherwise mony dicted. well However, this gation motion for propositions ther volved the their from direct suspicion spiracy among the lant spective low, ent transaction rate that ord, and, versed and the cause of these court. timony, although it was accordingly suggest circumstances the court conclusion case embodied There ^[3] appellant’s appellant, instructing that contained contrary, testimony circumstance that each element was an testified below seem so to nor in for the first time commenting upon may each conspiracy among of these presented testified equivocation statements made of each by and variation and the propositions or other motion propositions is that all the witnesses lo-ts each On it in the trial new by appellant be No circumstance positive. corroboration; gave of the trial court should respective us is to ns inevitable two a new trial filed no confusion state appellant’s interested the absence which them Motion motion for said owners testified to an any evidence contained motion tends to of weight arguments for a interest judgment pass us, in the others, notwithstanding suggestion with Cardwell from the burden and effect assigned by of facts concomitant with reason for before the were not various were interested in their court could not and because every upon, of this transactions court’s testimony itself of their for a rehearing other transactions in- of the witnesses. delivered to Cardwell. witness, yet remanded. The the discussion original original therefore support and Rehearing. squarely presents to arguments runs of the others by depositions pro- of the case. There confusion, or contradiction is were witness suggested to cast reasons wholly owners of the re- rehearing, of fraud or affirmed. one placed upon rehearing there is no alle- suggested original is respective testimony. altering or fur- throughout witnesses, especially appellees, that trial are free brought subpoenaed idea constitute that in these wholly indicated and corrobo- brief brief without ma- based their cred contained independ- uncontra adversely the testi- court be- why such tes of fraud and the rec- opinion. do not give a in appel which Card- think unre- forth testi- does that dep- first tes- All de- On re an as in .Supreme Court, mony credit or instruct to he tradicted when it is is not mony than mere jury circumstance livered. Appeals mony cation, ing to approval upon the testimony decided damages tbe crediting tended render sonable rather than emptory wise said credit unequivocal Justice Buck court. A writ of error was refused various adduction of the honorable the Fort of trial court ested it where all the from numerous ness, by chauffeur clear case renders Court, arbitrarily credit it. We S. disregard negligence circumstance as to testimony. In Appellant no W. 1039. may confusion doubtfulness appellee. cases jury interested, to constitute to discard evidence any that circumstance ato witness being must a in a submit confusion, by jury. jurisdictions by that instruction settled a verdict impeach instruct a verdict Worth total impeach their of Joffre However, of them is discredit refusing tbe positive pursuit, jury testimony positive of interested case discredit some circumstance interest to a suit positive inherently altogether opportunity cites driving an automobile This it conclusive that existing being testimony Appellant injuries rendering witness, disregard for the sole testimony submit court, is recognize witnesses, no rule upon it, Court contrariety, passing testimony recklessness the absence of That without such numerous latter case or proper tbe and view v. an were all proper written upon the uncontradicted effect of the disclosed upon disclosed jury may altogether suggested. capricious, holding in aberration in it. Mynatt, or of witness jury. invasion of unequivocal testimony, can it is inflicted contain some of Civil uncontradicted; writ of the case exists nothing uneontradicted testimony. when of the of an Texas. examination of the proved unequivocal, witness. parties, connection of then there is noth- the evidence can be interested given in a «¡onfusion, Hill v. sought case, proper to cast purpose nullify opinion being authorities a was engaged tending tending A opinion of in this interested by 206 S. W. witness province nothing Court Civil trial court to before a error, placed Appeals, n the-Supreme discreditable through even jury must This is the their testi- a decision Staats, the uneon- decided for appellee’s The testi- disregard belonging jury may an inter- injuries element parties, recover case, equivo- be said and no coming though cannot by a giving be at- would in an other- cloud given testi- more It trial of a per- rea- tout, wit- 951, dis- dis- dis- Mr. dis- 187 the the de- by in (1S3 requesting this court to and adduced evidence 44 S. careful brief, verdict where the ment of the trial ness which question specific Melton, dress, tion upon by v. Bell 83; but not authorities cited reason, press ny cites the dead at a verdict. Cardwell committed suicide Tes.) the trial court rule that in ested of of the ed assignments both longed 132 W. or soon perfidy. that person submitted contends, and bile osition that supra, Div. Western C. appellee’s cident, case the effect Service Sherer the an errand to same effect dicted, a fied to Staats. 754, recently None of ^[4] the Court Civil prima A. 239. give appellee. cause, S. scope by S. has not disclosed reckless Bloomingdale of Dallas Hotel 72, As a witnesses for violation of instructions. The testimo- W. the is the 204 W. appellee Supreme Court, W. iswho County analysis, yet his chauffeur. facts, (Tex. after, the Elec. 102 Tex. whom yet (officially) the courts of As 71 N. the Ry. To when were caused following appellee facie case 123; chauffeur at the motion for the cases cited to the second 409; S. outside it was not peremptory a could credibility being positive of error contained in No operation Co. v. proposition support Co., the decision of the Civ. rendered defense, dead, were interested Y. following: Joske v. although Texas support is not Texas Life Ins. Co. Chil chauffeur’s 1038; time of only person newly court, Supp. be contradicted 86 N. circumstances it sole of the trial v. So. Nat. of such duties and App.) appellee the case his wife cited, Price, it v.Co. eases: were Civ. Appeals, this state. peremptory that its is not conclusively This 117 S. W. appellee effect because, published. case instruction. advanced Grand was to 306; the proper M. reverse new J. Irvine, the that Cardwell was App.) dissenting the automobile position, appellant by appellant, upon affirming Newberg, appellee’s uneontradicted, 97 Fed. the various inter T. & P. Law, Justice any way proof should have unqualified H. Clark v. time of the ac- bearing being this court operated duties has been proper given by discovery who could have The certificates certified trial Chicago Bank, App. reported our Hill and, parties, THOMAS Fraternity th,e establish unequivocal, and remand well-as 144, 788; established instruction appellant’s ground Ry. investiga driven uncontra- See, v. revealing Tex. Tex. but negligent 246 W. direct Vaughan verted Ms to direct appellee automo- suggest opinion, New 63 v. on To 91 Atl. Staats, passed within Public in the a wit about, the in the Co. v. Great 38 C. prop judg- S. Felts testi- wife, by also, that 616, 574, (245 ex- be- & CO. v. a was done. >.w.) holder of the certificates. Some time been indorsed The bank had discounted a note note that certain by purported certificates of certain conversation with situation in that where the tradicted the conclusion senting that there was a collateral directed. The court with one of the distillery company, ous in its warehouses to be rectly rected dorser to tual conflict in the said that a trial a verdict who could have attached The with the directing had to be son, p. ment, case, weight the representations. awas Plaintiff’s tigate case, tain facts could be contradicted supra, ager, tificates When the the case was of a dead contradicted an uncontradicted witness is dead. go plaintiff’s manager by person the bank showed take 1579, directed where the note, proposition note, facts, rule admitted clerk an HAWTHORNE York, the who contradicted considered the witness In must few the the officer makers were notified that the calling the conversation seemed to be the a that the as stated testified that president president did observe in that 500 paid maturity the ease of Clark v. Electric manager the ultimate conclusion only person clerk to person stated, note verdict bank and subsequently note days The bring note, always witness is that in barrels conflicting testimony Bloomingdale judge verdict will not for 500 barrels of came off case, plaintiffs, contradicted whisky the uncontroverted facts in a note another He also testified that he the before the whose that he thereafter called substantially back was in other judge because there go of the bank and had a the stated he court was which seems to see the testimony. maker, president is other witnesses requested question arising he had due, does was marked the who could have con only person submitted to bank’s, dead, plaintiff to the justified which a him. light had been event instructed Supreme stated certificates. delivered the maker and a Mr. John- bank who not warrant certain president. was introduced plaintiff’s connection v. note matured. but bank, the uncontro- deposit The will verdict hands, repre- would inves- made laying Bank, conversation only as follows: plaintiff the respects certain be directed1 was was an ac justified in 38 note concerning the actual The court connected deposited president directing Court of plaintiff take is dead whisky. a clerk wMsky. secured and its by certain “paid.” an in- supra, which previ- state down man- jury. have This This note, that Cye. cer- Co., cer 509 di- up di REPORTER SOUTHWESTERN whisky old the new were discounted and the appellant’s manager, under whose before direction the case us is not tainted with such worked, also testified to the clerk certain It is conditions and circumstances. true that president phrase 1570, Cyc., page of the interviews the defend- a discussion is found the general principle governing ant bank. Upon appellants the based instructed direction of an verdict the the effect to the their contention that court should have a should not be directed in their a verdict favor for of a witness directed who could by person jury only reason bound believe have been contradicted phrase appended evidence, being is end it is dead. This uncontradicted. court enumerating passing of a cases in which it the evidence sentence concluded that improper action, to instruct a A is verdict. refer- it showed cause of but stated authority giving proved it, by ence to the footnote a cause of even if action were altogether upon is based reveals that it a verdict not have been it should directed. This Bloomingdale Ry.& of v. Bank was of the the view so of Co. nature dictum. The cases v. reason for supra. expansive expressed, by Price, court, That is more stated unqualified manager holding than the was that Krause was the form of ei- of department plaintiffs’ cases becomes financial of ther of those manifest busi- arrangements unqualified by In its ness and made reference them. form Tes.) & SETTLEMENT D. CO. v. VILLAGE MILLS CO. SOUTHWESTERN (245 S.W.) law de- statement of a correct is &wkey;s342 3. Evidence or orders of survey —List purports by cases, to be. certified of orders termined those copy such held admis? sible as archives land office. holding of of the owners Our that the conduct try trespass title, In wherein defendants complete reposing confidence of by regular pat- claimed chain of title back to a negligence is did not constitute Republic Texas, ent from the a list of or- of argument assailed, and, vehemently an after survey ders of made out as were issued analyzed consid- in which the facts are by Republic, a commissioner of and a cer- propounds ered, appellant’s more counsel copy survey tified sible of order of held admis- says perfervid questions, “Who or less office, as archives the land view of of negligence?” 82, relating 1911, 1, 5, farmers] free from [the Rev. St. art. subds. Republic question negligence documents fact?” Texas. of of “Isn’t ques first of these answer [5] The <&wkey;83(3)— 4. Evidence Execution and indorse- evidence is that the uncontradicted tions compels ment of official document presumed. say, inhibits the court sought it is Where to introduce evidence gainsay, were free survey by a list of orders of made land com- ques negligence. Republic second The answer to missioner in his of of Texas offi- capacity, question cial execution indorsement fact negligence of ais tion is by presumed. such commissioner bewill presents an issue when evidence rendering possible reasonable than one more 5. Evidence of execu- <&wkey;89 Presumption due — proof When the facts. from the conclusion of tion ancient instrument may be rebutted. case, such, that no reasonable in this While due execution of an ancient in- presumed, may except strument that neg will be rebutted from it be derived deduction can by contrary. evidence of conclusively an absence establishes subject to question law ligence, is one of <&wkey;3l8(3) 6. Evidence recited in offi- —Facts Shawver court. of control cial document not hearsay. exclusive held trespass App.) try title, S. In Ry. where an official Civ. Ex. Co. Am. v. survey by list of orders of a commission- made supra. Irvine, 802; Joske v. W. Republic introduced, er of the of Texas was rehearing is overruled. motion hearsay, the facts recited list were not by the since were found commissioner in duly capacity his official entered record. of <&wkey;342 7. Evidence of copy —Certified archive of land office held admissible. an Where official document constitutes & DE SETTLEMENT SOUTHWESTERN office, copy archive of is of the land certified there- VILLAGE al. CO. et VELOPMENT admissible evidence. 853.)* (No. CO. et al. MILLS <&wkey;333(7) 8. Evidence .title commis- —Of Appeals Beaumont. Texas. (Court of Civil of sioner Republic Texas held archive of Rehearing Denied Nov. land office. 13, 1922.) Dec. survey If a list of orders of made Republic commissioner of Texas was used as evidence the issuance of title ordinarily name o>f &wkey;>!8Identity 1. Names — commissioner, list became an archive identity person. sufficient evidence States, of the land office of the United ordinarily identity deemed of name While custody, had taken over its and as such was identity person, sufficient in evidence. admissible presumption strength determined case, particular ab- of each <&wkey;>372(IO) facts 9. Evidence of orders sur- —List suspicious is conclusive. circumstances sence held as ancient vey admissible instrument. survey A list of orders the land held circumstances Republic <&wkey;!8 Suspioious 2. Names commissioner of the of Texas held — arising from identity to destroy as an ancient presumption admissible pass instrument tres- try question identity title on the of the originally name. person try trespass title had to whom . one-third of a title to plaintiffs issued.' land, league claimed where “my league conveying L., E. one deed <&wkey;>!74 10. Public lands land —Certificate entitled as a citizen of this I am land to which municipality,” commissioner held Republic Texas claimed under defendants clusive as facts recited therein. L., recited that he certificate E. try trespass In title a certificate of the single to one-third of man and entitled awas Republic board of land commissioners of the necessary plaintiffs league, it was a to show that struments patented of Texas on which the land was held persons named in two in- as to the facts recited conclusive therein. identical, single man league, <&wkey;>6(l) 11. Trespass aof title try pri- to one-third entitled —Rule family aof possession inapplicable, where man or the en- opposite married head regular league, destroy has of title held and claim- than chain more titled to the and identity arising presumption ants of name have none. proving identity try trespass prior title, burden the rule of to cast the n ' application, plaintiffs. has no where defend- Digests Key-Numbered in all KEY-NUMBER topic same Indexes other oases see <@=»]Tor granted January 31, ol error *writ notes in a warehouse of certain barrels by paid, note accordingly, cer- held the defendant indorsed return deliverable trans- payment was interested tificates, certain and, furthermore, charges. action dence that there was evi- storage taxes and making doubtful whether he ever plaintiffs, to the sent “before really went bank at all. defendant,” to the Under a new note received by original held that the distillery in- re- it was court did circumstances not indorsed the dorser. submitting jury, by err the case to the the bank was held The note president being bank Of the dead and unable It after canceled. maker turned subsequently witnesses, distillery contradict appeared to whom the either of the both that the stated, certificates, were interested as above that fraudulent issued positions plaintiffs’ represent both certificates, em- purporting bar- subject ployment being Bloomingdale whisky upon at et to termination which rels of n al.made the loan moment, satisfactory rep- give complained of, should fail to in fact testimony. expressly obtaining The court took notice After barrels. but 43 resented Krause, fact that the assertion of who fraud committed information of through, put plaintiffs case, the transaction assisted Ham- clerk sent their berger, clerk, investigate to be was doubted certificates. to Louisville to light indicating lawyers Having evidence that They enrployed nitely all hfenever defi- there. repre- at went to the bank all and talked with its that the certificates learned president at whisky, plaintiffs who was dead the time 43 barrels sented but whisky trial. for this the certificates surrendered Railway supra, Price, Co. subsequently The ease of v. it. There was no sold authority is not for the contention that president bank if the only person sole fact of dict witness sary could contra- representations he did testified to made knowledge fraudulently dead renders it neces- so were false jury. anybody. to a submit cause In this or to deceive an interested witness to cer- transaction and testified was to rescind the The suit paid posi- tain which it facts seems could the bank back amount recover tively although allegation person except note, contradicted no was allegation man dead ten- who was time. was One of the of recission. There given why reasons that case bank note and certificates der of the give money instructed the return of the demand for very paid. witness so become due and The note contradictory stamped and the motive for the defendant was him to ex- held which was delinquency by laying condition, “paid” cuse his own in that was re- the fault objection lips plaintiffs of in not be one whose without carelessness were closed ceived delivered strong death so his evidence could to the maker. regarded question affecting conclusive of tender as rea- On the ground certain as to conversations sonable minds rescind mis- place appellant’s etc., clerk, him and representation, ployed took between the dead em- manager, man. certain ineffectu- appears case, It testimony. thus as well He also testified that after al Bloomingdale supra, Bank, Louisville, case of where he returned from went to evidence of the investigate witnesses which could that the certificates and learned only by men who be contradicted was tradiction. in were dead had a conversation with were fraudulent the already suspicion president clouded with which to him. of the bank the latter representations Krause, certain evidence of the witnesses

Case Details

Case Name: M. H. Thomas Co. v. Hawthorne

Court Name: Court of Appeals of Texas

Date Published: Nov 4, 1922

Citation: 245 S.W. 966

Docket Number: No. 8701. [fn*]

Court Abbreviation: Tex. App.