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ants bid in the same for $8,500; that they were induced to buy said goods at that price by the fraudulent representations and promises of the said Ehrenwerth that he would pay them between $1,500 and $2,000 in cash on Levy's indebtedness to them, and had a person whom he would put in charge of said goods, and would arrange for replenishing the stock; that defendants should keep the goods in their possession as a pledge to secure the payment of the balance of the indebtedness, both against him, the said Ehrenwerth, and the said Levy; that the person so taking charge of the goods should be the agent of defendants, and deposit the proceeds of sales in the bank of R. E. Stafford & Co. until all of their indebtedness was paid, and the remainder of goods unsold should be turned over to the said Ehrenwerth. Defendants alleged that they did not understand the mercantile business, and did not know the value of the goods; that the said Ehrenwerth had been a merchant for many years, and was perfectly familiar with said goods, having owned a portion of them at one time; that it was the intention of the defendants to bid no more than $6,000 for said stock of goods,-a sum sufficient to cover their indebtedness, but they were induced to bid the sum of $8,500, as aforesaid, by the said Ehrenwerth, who would otherwise have lost his interest in the proceeds; that after the defendants bid said sum of $8,500 for said goods, and made themselves responsible for the payment thereof, the said Ehrenwerth entirely repudiated his said agreement; that said goods were not worth one-half of the amount of their bid, which the said Ehrenwerth well knew, but which was unknown to the defendants; that they were induced to make their said bid by the deceitful and fraudulent promises of said Ehrenwerth, who was intending to get payment of his said indebtedness against Levy; that, by reason of the refusal of said Ehrenwerth to comply with his agreement, defendants were forced to take charge of said goods, etc.; that said Ehrenwerth would be entitled to the balance thereof after the payment of their said demands against him and the said Levy, and that it would be to the interest of all parties that a receiver should be appointed to take charge of said goods and sell the same, etc., for whose appointment they prayed.

Defendants pleaded, also, in set-off to the demand of plaintiffs, (1) an attorney's fee of $500 paid Messrs. Foard, Thompson & Townsend in the matter of the Levy deed of trust; (2) the sum of $7,848 in cash which they alleged the said Ehrenwerth had received as the agent of defendants, and had refused to pay over. They also averred that the plaintiffs acquired their rights long after said transactions; that said Ehrenwerth was insolvent, and prayed that he be made a party defendant in order that the equities between them might be settled.

At said September term, 1891, the plain

tiffs presented demurrers to said answer, which were overruled, and a receiver was appointed by the court, who took possession of said stock of goods and sold the same, and afterwards presented his report to the court, and paid into the registry thereof the net proceeds of the sale of said goods. Said report was approved, and the receiver was discharged. At the March term, 1893, of the district court of Colorado county, to which the cause had been continued, H. M. Ehrenwerth, who had been made a party at the prayer of defendants R. E. Stafford & Co., presented a motion to change the venue, which was granted, and the cause was removed to Fayette county. The plaintiffs, Leon & H. Blum, did not join in this motion. After the cause had been removed to Fayette county, the defendants R. E. Stafford & Co., on June 19, 1893, filed their second amended original answer, in which, as before, they admitted the deposit with them by Wells Thompson, as trustee of Harry S. Levy; pleaded more fully the facts of the execution of the deed of trust, and reiterated their allegations with respect to the indebtedness it was made to secure, and the agreement of Ehrenwerth with respect to the deed of trust and the purchase of the stock of goods by defendants at the trustee's sale, and alleged that defendants were only liable and accountable for the said goods to the extent of the amount realized from the sales thereof, and that the net proceeds, including sales made before the appointment of the receiver and those made by him, did not amount to enough to pay off and discharge the balance of said Levy's indebtedness to them, as it existed at the date of the trustee's sale, but left a large amount due defendants by Ehrenwerth on his said notes. Defendants also pleaded more fully the amount claimed by them in set-off, and, in addition thereto, another attorney's fee of $500, which defendants alleged they had paid for said Ehrenwerth in a transaction in the year 1889, in which said Ehrenwerth had conveyed, in trust for defendants, his stock of goods to secure certain of his indebtedness to them. They alleged that the sum of $7,840 pleaded in their former answer was the proceeds of certain refrigerator cars which belonged to the Columbus, Texas, Meat & Ice Company, and upon which, with other property of said corporation, R. E. Stafford & Co. had a deed of trust dated October 1, 1887, to secure an indebtedness in their favor of $132,000; that in March, 1891, after said indebtedness had been long due, and the defendants, with the consent of the said meat and ice company, which had become insolvent, had taken possession of said cars, with the consent of the defendants, and of R. L. Foard, the trustee in said deed of trust, the said H. M. Ehrenwerth, as general manager of said Columbus, Texas, Meat & Ice Company, and as one of the directors thereof, by and with consent and approval of the

other directors, sold the said cars with the understanding and agreement that the proceeds of said sale should be paid to the defendants, to be credited on the indebtedness of said corporation secured by said deed of trust; that said Ehrenwerth, in making said sale, was also acting as the trusted agent of the defendants, etc. The plaintiffs renewed their demurrers to the answer before the district court of Fayette county, which had been presented to their first amended original answer before the district court of Colorado county and overruled, and they were sustained as to all allegations setting up an agreement between Ehrenwerth and defendants in relation to the purchase of the goods at the trustee's sale, and for the appointment of a receiver, which were struck out; also to those seeking to make Ehrenwerth a party, and he was dismissed. The court adjudged that there had never been any legal cause for the appointment of a receiver, and ordered that the acts, doings, and report of the receiver should be no further considered, and adjudged the costs of the receivership, and of making Ehrenwerth a party, against the defendants Stafford & Co. The cause was then submitted to the court without a jury, and judgment was rendered against Stafford & Co. and Wells Thompson, in favor of the plaintiffs, for the proportionate share of the claims of Ehrenwerth in the net proceeds of the goods in the hands of Stafford & Co. R. E. Stafford & Co. alone have excepted to the judgment and given notice of appeal, and brought the case up. Wells Thompson has assigned errors, and seeks a reversal of the judgment as to himself.

Motions have been filed by the appellees, Leon & H. Blum, to strike out the assignment of errors made by the trustee, Wells Thompson, and to dismiss the appeal. The ground urged for the dismissal of the appeal is that this court has never acquired jurisdiction thereof, because the appeal bond is insufficient, since it is made payable, not only to Leon & H. Blum, the only appellees in the case, but also to H. M. Ehrenwerth, who was dismissed from the suit as an improper party, and to Wells Thompson, against whom judgment was also rendered, and who has not appealed. The judgment of the court dismissing Ehrenwerth was clearly such a one as the appellants have the right to have reviewed; and, as the judg ment is of such a nature that a reversal as to the appellants would cause a reversal as to Thompson, and he was abiding by the judgment, it was correct practice for R. E. Stafford & Co., who alone desired to appeal, to make their bond payable to all of the other parties to the judgment. As Wells Thompson did not give notice of appeal, and had not filed an appeal bond, his assignment of error will be disregarded.

Appellants have assigned as error the retaining of jurisdiction of this suit by the

court below after it had sustained the exceptions of plaintiffs, and dismissed therefrom H. M. Ehrenwerth, who had been made a party by them, because the venue had been changed from Colorado to Fayette county on the application of Ehrenwerth alone. Having once acquired jurisdiction by proper proceedings for change of venue, to which no exception was taken, and which are not now sought to be reviewed, the district court of Fayette county was not ousted thereof by the dismissal of Ehrenwerth from the suit.

We are of the opinion, however, that Ehrenwerth was improperly dismissed. It is true that the interest of H. M. Ehrenwerth in the deposit with R. E. Stafford & Co. made by the trustee, Wells Thompson, of the proceeds of the Levy stock of goods and the notes belonging to him, and secured by the deed of trust from Levy to Thompson, having been assigned after the maturity of the notes, the plaintiffs took the same subject to all defenses in favor of R. E. Stafford & Co. against Ehrenwerth. But the answer of K. E. Stafford & Co. set up matters of defense to which Ehrenwerth was a proper party. To this defense, exceptions made by plaintiffs were sustained, and upon the action of the court, both in dismissing Ehrenwerth and in striking out the defense set up, the appellants have assigned error. As will appear from the pleading, the defendants did not attempt, as contended by appellees, to set off unliquidated damages for a breach of the agreement of Ehrenwerth with them against the plaintiffs, but, as defense to the entire cause of action, that, according to an agreement with Ehrenwerth, they were not to be charged with the amount of their bid for the goods, and that their claims were to be paid off and discharged, and the remaining goods were to be delivered over to Ehrenwerth, so it will not be necessary to inquire whether unliquidated damages might be set off as growing out of the transaction. It was competent for defendants to make such an agreement with Ehrenwerth as they set up in the pleading stricken out, and, if true, it would be a complete defense to the suit; and, while it was not necessary that Ehrenwerth should be a party in order to enable the defendants to avail themselves of the defense, he was at least a proper party. But if the allegations of the pleadings showed a proper case for the appointment of a receiver (which is not decided, because Ehrenwerth had been dismissed when the case was tried on the merits), and the goods were placed in the custody of an officer of the court upon the allegations of the defendants that they were the property of H. M. Ehrenwerth, pledged to them for the payment of the debts of himself and H. S. Levy, and it was sought to have them sold for that purpose, then Ehrenwerth would have become a necessary party to the suit.

Under the pleadings, the defendants had a

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clear right to have the proceeds of the cars sold by Ehrenwerth set off against the demand asserted by plaintiffs. The evidence shows clearly that there was no release of the mortgage upon the cars by R. E. Stafford & Co. except for the purpose of effecting the sale thereof, and that there was no intention to release the proceeds, and that Ehrenwerth received the proceeds of the sale for the benefit of the mortgagees. He does not testify that there was a release of the proceeds, and the court found that he went to St. Louis and sold the cars by the authority of the representatives and survivors of R. E. Stafford & Co. as the firm was constituted when the mortgage upon the cars was made. The Columbus, Texas, Meat & Ice Company was no doubt indebted to Ehrenwerth in a large amount for his salary as its secretary and general manager, but the money received by him was for the benefit of the defendants as much as if it had been the proceeds of a sale of the property under foreclosure. The debts of the corporation for the salaries of its officers are not entitled to priority of payment out of the proceeds of mortgaged property over the lien of the mortgagees. Plaintiffs seek to defeat the set-off in favor of defendants R. E. Stafford & Co., by showing that the Columbus, Texas, Meat & Ice Company had been insolvent almost from the time of its organization; that it had been kept in operation for the benefit of R. E. Stafford & Co., who were large creditors; and that R. E. Stafford & Co. were equitably bound for the salary of Ehrenwerth. It is sufficient to say that there was no pleading authorizing such proof, which is of matter in confession and avoidance, and the objection of defendants to all such evidence should have been sustained. As above indicated, we do not think that the proceeds of the sale of the cars were money belonging to the Columbus, Texas, Meat & Ice Company, so that Ehrenwerth might appropriate it to the debt of that company to him by retaining and charging himself therewith on the books of the company. Whatever right he had to appropriate the money for the debt due him for services as secretary and general manager must grow out of his right to look to Stafford & Co. for payment. We do not think that the testimony is sufficient to show that Stafford & Co. became liable to Ehrenwerth for his salary, as found by the court below. Appellants had the legal right, under the statute (Rev. St. art. 645), to set off their notes upon H. M. Ehrenwerth against the demand of the plaintiffs, notwithstanding the fact that such notes were secured by a deed of trust upon property. there were any equitable reasons why the property should be sold first, and the proceeds applied to the debt of Ehrenwerth in favor of defendants, they were on account of the insolvency of Ehrenwerth, and related only to himself and the plaintiffs; and, if Ehrenwerth were a party to the suit, such relief might have been had on proper pleading

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and showing on behalf of plaintiffs. But without this we think the plaintiff would have been amply protected by a subrogation to the security of the defendants, as they would not be allowed to avail themselves of the set-off, and to hold on to the security. Defendants did not show themselves to be entitled to have the two attorneys' fees of $500 each, paid by them to Foard, Thompson & Townsend on account of the Levy deed of trust and the Ehrenwerth deed of trust, set off against the plaintiffs, because it did not appear that Ehrenwerth was liable for the fee in the matter of the deed of trust exe cuted by him to Sandmeyer; and in the matter of the Levy deed of trust he would not be liable for more than a proportionate part of a reasonable fee.

In view of another trial, we will state that the trustee, Wells Thompson, discharged the duties imposed upon him by the deed of trust when he sold the goods, and deposited the proceeds thereof with R. E. Stafford & Co., and there should be no judgment against him. Although the proceeds of the goods may stand credited to his name on the bank books of R. E. Stafford & Co., still a judgment in the case in favor of or against the plaintiffs would adjudicate the disposition of the fund, and be binding on Thompson. We do not think it necessary to notice any of the remaining assignments of error. For the errors above indicated, the judgment of the court below will be reversed and the cause remanded. Reversed and remanded.

KINGSBURY et al. v. CAROTHERS et al. (Court of Civil Appeals of Texas. May 23, 1894.)

-DENOTE PAYABLE ON CONTINGENCY - ACTION — FENSE-FACTS SHOWING FAILURE OF ConsiderATION-INSTRUCTION.

1. In an action on a note of C. and another, which recited that it was given in part payment for stock in the W. Cattle Co., on the condition that "the United States government does not take action before May 1, 1890, which will prevent C. or his assigns from using the pasture leased by the W. Cattle Co. from the Cherokee Live-Stock Association until October

1, 1890," defendant could allege and prove that in February, 1890, the government took such action as to prevent C. from using such pasture; that when the note was made it was known that the pasture was to be used as a summer pasture, for fattening cattle for the market in the fall of 1890; and that the cattle were to be put in it before May 1, 1890, and could not be placed in it until early in the spring of 1890.

2. It was shown, in such case, that C. was using the pasture for fattening cattle to be sold in the fall; that, in pursuance of his plan, he sold all the cattle he had in the pasture in 1889, on the market, in November of such year; and that, before he could again restock the pasture, the government, in February, 1890, took action to prevent the use of the pasture by C. Held, that it was not error to refuse to charge that if defendant had cattle in the pasture when the note was made, and afterwards sold them, such acts would be a voluntary abandonment of the pasture, and plaintiff might recover.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by W. J. Kingsbury and others against William S. Carothers and others on a promissory note. From a judgment for defendants, plaintiffs appeal. Affirmed, and rehearing denied.

McLeary & Fleming, for appellants. John A. & N. O. Green, for appellees.

FLY, J. Suit was instituted by appellants, on a promissory note for $2,250, against appellees. It is alleged that the contingency upon which the note was not to be paid had not arisen, and that the United States had not taken any action which would prevent appellees from using the pasture. The consideration for the note was 25 shares in the Winfield Cattle Company, and the note was to be paid unless action was taken by the United States government before May 1, 1890, which would prevent W. S. Carothers or his assigns from using the pasture leased by the Winfield Cattle Company until October 1, 1890. In the answer of appellees, among other things, it was alleged that the United States government had on the 17th day of February, 1890, taken such action as to prevent Carothers from using the pasture, and the note was null and void; that, at the time of the execution of the note, it was known and understood that the pasture was to be used as a summer pasture, for fattening Texas cattle for northern markets in the fall of 1890; that the cattle were to be introduced into the pasture before May 1, 1890, and could not be placed therein until the early spring of 1890, and that it was thought that if the cattle were placed in the pasture by May 1, 1890, they would be permitted by the government to remain therein until they were fattened for the fall market; that the cattle that were in the pasture at time of execution of the note were being fattened for the fall market of 1889, and were not intended to be kept through 1890. The answers were excepted to by appellants because the suit was based upon a written contract, and the answers set a new and altogether different contract, resting on parol, and there was no allegation of fraud or mistake. The exceptions were overruled, and the trial resulted in a verdict and judgment for appellees.

or his assigns, from using the pasture leased by the Winfield Cattle Co. from the Cherokee Live-Stock Association until October 1st, 1890. The above note is given as part payment for twenty-five shares of certificates of stock in the Winfield Cattle Company, and not negotiable until May 1st, 1890, and only then on conditions above named. W. S. Carothers. Ike T. Pryor."

Indorsements thereon:

"Tempa, Arizona, Mch. 31st, 1889. For value received, I hereby assign the within note to A. M. Franklin and W. J. Kingsbury without recourse. F. M. Stewart."

"Arkansas City, Kan. Aug. 31/89. We, Hume Bros., agree to assume payment of this note according to the stipulation expressed therein. Hume Bros."

This note was duly protested for nonpay

ment.

(2) On February 17, 1890, Benjamin Harrison, president of the United States, issued a proclamation, wherein, after the preamble setting forth the necessity for his action, it was proclaimed "that no cattle or live stock shall hereafter be brought upon said lands for herding or grazing thereon," and that all the cattle on the lands should be removed not later than October 1, 1890. The land referred to was the Cherokee strip or outlet, being the land in which the pasture mentioned in the note is situated.

(3) The only use to which Carothers desired to put the land was as a summer pasture, in which he could put Texas cattle, and fatten them for the northern markets.

(4) When the note sued upon was executed, it was known how uncertain a tenure was the lease upon the land, and, in anticipation that the federal government might prevent the use of the grass for another summer, the condition was inserted in the note.

(5) It was known to F. M. Stewart, at time of execution of the note, that it was given for the pasturage of cattle to be brought into the strip or outlet in the following spring, and he knew that the cattle in the pasture in August, 1889, would all be sold in the fall, in northern markets; and the object in making arrangements for the pasture was to have a place to fatten other cattle the following year for the northern market.

(6) The United States government prevented the use of the pasture intended by the We find the following facts established by parties, and the consideration for the note the record:

(1) The note sued on is as follows: "Ark. City, Kas., Aug. 12th, 1889. On May 1st, 1890, for value received, I promise to pay to the order of F. M. Stewart the sum of twenty-two hundred and fifty dollars ($2,250.00), at the First National Bank of Arkansas City, Kansas, with interest at the rate of 12% per annum after maturity until paid. The above note is given on the following conditions, to wit, that the United States government does not take action before May 1st, 1890, which will prevent W. S. Carothers,

had failed.

(7) The land could not be used as a winter pasture, and was only used as a pasture from April to October, and for years had been used for no purpose except to fatten Texas cattle brought there in April for the northern market in the fall. No cattle were in the pasture after November, 1889.

It becomes necessary, as a condition pre cedent to recovery, that appellants should show that the United States government had not taken action before May 1, 1890, which prevented W. S. Carothers or his assigns

from using the pasture; and appellees would be entitled to plead and prove any facts that would go to show that they were prevented by the government from using the pasture as was contemplated by the parties at time of making contract. The evidence introduced by appellants showed that the president of the United States had issued a proclamation preventing any one from bringing cattle into the country, in which the pasture was situated, after February 17, 1890, and this of itself showed an interference with the use of the pasture before May 1, 1890, for any purpose except the pasturage of cattle that might be in it at the date of the proclamation. We are of the opinion that it then became proper and legitimate for appellees to prove that the pasture was to be used for fattening cattle to be brought from Texas and other points. This class of proof did not set up a new contract, nor vary the one upon which the suit is founded, but simply explained it. The question in the case was, did the United States government take such action as to prevent the use of the pasture? And, to arrive at a conclusion on this point, it became necessary to inquire as to the use to which the pasture was to be put. How can it be said to be a new contract that is pleaded, when the allegations of the answer merely show that the use intended was known to the parties to the contract, and that the contingency upon which payment was not to be made had arisen? The terms of a written contract cannot generally be varied by parol evidence, but evidence to explain an ambiguity in a written instrument, or an ambiguity that may arise in applying the instrument to the facts, is admissible. In this case the use to which the pasture was to be put is left uncertain, and parol testimony would be proper to explain it. Parol evidence is admissible to show the circumstances under which the contract was made, and the relation of the parties to each other in respect to it. 2 Whart. Ev. § 927, and note; 1 Greenl. Ev. 283 et seq.; Bish. Cont. $372. There was no error in overruling the exception to the answers. It follows from what we have said that it was not error to refuse the special charges, in which the jury are instructed that if appellees had cattle in the pasture when the promissory note was executed, and afterwards sold them, this would be a voluntary abandonment of the pasture, and appellants should recover. It was shown that Carothers was using the pasture for fattening cattle to be sold in the fall, and that in pursuance of his plan, hav ing fattened all the cattle he had in the pasture, in November he placed them upon the market, and sold them; and, before he could again restock the pasture with lean cattle, the contingency which was expected, and guarded against in the contract, arose. was never contemplated by the parties that the cattle in the pasture in August, 1889, should remain in there until October, 1890. v.27s.w.no.1-2

It

All of the other assignments go to the admission of the testimony showing the use to be made of the pasture, and are disposed of by what has been said in regard to the points herein before discussed. It was not error to overrule the motion for a new trial. There is no objection made to the charge. The judgment is affirmed.

On Motion for Rehearing.

There is no evidence whatever to show that appellees abandoned the pasture, but held the same, and expected and desired to use it for the purposes for which it was rented, until prevented by the proclamation of the president of the United States. Such being the state of facts, there could have been no grounds for giving the requested charges numbered 1 and 4. The testimony to which objection was made does not vary the terms of the written contract in any manner or form, but simply explains. It was permissible for that purpose. The motion for rehearing is overruled.

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ATTACHMENT AGAINST NONRESIDENT - AFFIDAVI -PERSONAL JUDGMENT.

1. The fact that the affidavit for an attachment against a nonresident fails to state, as required by the statute, that the attachment was "not sued out for the purpose of injuring the defendant," does not render void the subsequent judgment and sale thereunder of the land attached.

2. The fact that the court rendered a personal, and therefore void, judgment against a nonresident defendant, not served, did not vitiate so much of the judgment as adjudged the amount due plaintiff, and directed a sale of attached property to satisfy the same.

Appeal from district court, Victoria county; H. Clay Pleasants, Judge.

Trespass to try title by Laura E. T. Barelli and others against Frank Wagner. From a judgment for defendant, plaintiffs appeal. Affirmed.

Fly & Hill, for appellants. S. B. Dabney and W. H. Wilson, for appellee.

GARRETT, C. J. This is an action of trespass to try title for the recovery of an undivided one-half interest in and to lot No. 1, block No. 91, situated in the city of Victoria, instituted by Laura E. T. Barelli and others against Frank Wagner. Plaintiffs showed title in themselves to the land in controversy, as the heirs of John C. Barelli, deceased, and should recover in this suit, unless the defendant acquired title thereto by virtue of a judicial sale of the land made in the case of Samuel M. Todd v. John C. Barelli brought in the district court of Victoria county by attachment against the said John C. Barelli, as a nonresident of the state. The suit of Todd v. Barelli was brought in Jan

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