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ants bid in the same for $8,500; that they tiffs presented demurrers to said answer, were induced to buy said goods at that price which were overruled, and a receiver was by the fraudulent representations and prom- appointed by the court, who took possession ises of the said Ehrenwerth that he would of said stock of goods and sold the same, pay them between $1,500 and $2,000 in cash and afterwards presented his report to the on Levy's indebtedness to them, and had a court, and paid into the registry thereof the person whom he would put in charge of said net proceeds of the sale of said goods. Said goods, and would arrange for replenishing report was approved, and the receiver was the stock; that defendants should keep the discharged. At the March term, 1893, of the goods in their possession as a pledge to se- district court of Colorado county, to which cure the payment of the balance of the in- the cause had been continued, H. M. Ehrendebtedness, both against him, the said Ehren- werth, who had been made a party at the werth, and the said Levy; that the person prayer of defendants R. E. Stafford & Co., 80 taking charge of the goods should be the presented a motion to change the venue, agent of defendants, and deposit the proceeds which was granted, and the cause was reof sales in the bank of R. E. Stafford & Co. moved to Fayette county. The plaintiffs, until all of their indebtedness was paid, and Leon & H. Blum, did not join in this motion. the remainder of goods unsold should be After the cause had been removed to Fayturned over to the said Ehren werth. De- ette county, the defendants R. E. Stafford fendants alleged that they did not understand & Co., on June 19, 1893, filed their second the mercantile business, and did not know the amended original answer, in which, as bevalue of the goods; that the said Ehrenwerth fore, they admitted the deposit with them by had been a merchant for many years, and Wells Thompson, as trustee of Harry S. was perfectly familiar with said goods, hav- Levy; pleaded more fully the facts of the ing owned a portion of them at one time; execution of the deed of trust, and reiterthat it was the intention of the defendants to ated their allegations with respect to the inbid no more than $6,000 for said stock of debtedness it was made to secure, and the goods,-a sum sufficient to cover their indebt- agreement of Ehrenwerth with respect to edness,-but they were induced to bid the the deed of trust and the purchase of the sum of $8,500, as afɔresaid, by the said stock of goods by defendants at the trustee's Ehrenwerth, who would otherwise have lost sale, and alleged that defendants were only his interest in the proceeds; that after the liable and accountable for the said goods to defendants bid said sum of $8,500 for said the extent of the amount realized from the goods, and made themselves responsible for sales thereof, and that the net proceeds, inthe payment thereof, the said Ehrenwerth en- cluding sales made before the appointment tirely repudiated his said agreement; that of the receiver and those made by him, did said goods were not worth one-half of the not amount to enough to pay off and disamount of their bid, which the said Ehren-charge the balance of said Levy's indebtedwerth well knew, but which was unknown to ness to them, as it existed at the date of the the defendants; that they were induced to trustee's sale, but left a large amount due make their said bid by the deceitful and defendants by Ehrenwerth on his said notes. fraudulent promises of said Ehrenwerth, who Defendants also pleaded more fully the was intending to get payment of his said in- amount claimed by them in set-off, and, in debtedness against Levy; that, by reason of addition thereto, another attorney's fee of the refusal of said Ehrenwerth to comply $500, which defendants alleged they had paid with his agreement, defendants were forced for said Ehrenwerth in a transaction in the to take charge of said goods, etc.; that said year 1889, in which said Ehrenwerth had Ehrenwerth would be entitled to the balance conveyed, in trust for defendants, his stock thereof after the payment of their said de of goods to secure certain of his indebtedmands against him and the said Levy, and ness to them. They alleged that the sum of that it would be to the interest of all parties | $7,840 pleaded in their former answer was that a receiver should be appointed to take the proceeds of certain refrigerator cars charge of said goods and sell the same, etc., which belonged to the Columbus, Texas, for whose appointment they prayed.

Meat & Ice Company, and upon which, with Defendants pleaded, also, in set-off to the other property of said corporation, R. E. demand of plaintiffs, (1) an attorney's fee of Stafford & Co. had a deed of trust dated $500 paid Messrs. Foard, Thompson & Town- October 1, 1887, to secure an indebtedness in send in the matter of the Levy deed of trust; their favor of $132,000; that in March, 1891, (2) the sum of $7,843 in cash which they al- after said indebtedness had been long due, leged the said Ehrenwerth had received as and the defendants, with the consent of the said the agent of defendants, and had refused to meat and ice company, which had become pay over. They also averred that the plain- | insolvent, had taken possession of said cars, tiffs acquired their rights long after said with the consent of the defendants, and of R. transactions; that said Ehrenwerth was in- L. Foard, the trustee in said deed of trust, solvent, and prayed that he be made a party the said H. M. Ehrenwerth, as general mandefendant in order that the equities between ager of said Columbus, Texas, Meat & Ice them might be settled.

Company, and as one of the directors thereAt said September term, 1891, the plain- of, by and with consent and approval of the

was

other directors, sold the said cars with the court below after it had sustained the exunderstanding and agreement that the pro- ceptions of plaintiffs, and dismissed thereceeds of said sale should be paid to the de- from H. M. Ehrenwerth, who had been made fendants, to be credited on the indebted- a party by them, because the venue had ness of said corporation secured by said been changed from Colorado to Fayette coundeed of trust; that said Ehrenwerth, in mak- ty on the application of Ehrenwerth alone. ing said sale, was also acting as the trusted Having once acquired jurisdiction by proper agent of the defendants, etc. The plaintiffs proceedings for change of venue, to which renewed their demurrers to the answer be- | no exception was taken, and which are not fore the district court of Fayette county, now sought to be reviewed, the district court which had been presented to their first of Fayette county was not ousted thereof amended original answer before the district | by the dismissal of Ehrenwerth from the court of Colorado county and overruled, and suit. they were sustained as to all allegations set- We are of the opinion, however, that Ehrenting up an agreement between Ehrenwerth' werth was improperly dismissed. It is true and defendants in relation to the purchase of that the interest of H. M. Ehrenwerth in the the goods at the trustee's sale, and for the deposit with R. E. Stafford & Co. made by appointment of a receiver, which were struck the trustee, Wells Thompson, of the proceeds out; also to those seeking to make Ehren- of the Levy stock of goods and the notes bewerth a party, and he was dismissed. The longing to him, and secured by the deed of court adjudged that there had never been trust from Levy to Thompson, having been any legal cause for the appointment of a re- assigned after the maturity of the notes, the ceiver, and ordered that the acts, doings, and plaintiffs took the same subject to all dereport of the receiver should be no further fenses in favor of R. E. Stafford & Co. considered, and adjudged the costs of the against Ehrenwerth. But the answer of K. receivership, and of making Ehrenwerth a E. Stafford & Co. set up matters of defense to party, against the defendants Stafford & Co. which Ehrenwerth was a proper party. To The cause

then submitted to the this defense, exceptions made by plaintiffs court without a jury, and judgment was ren- were sustained, and upon the action of the dered against Stafford & Co. and Wells court, both in dismissing Ehrenwerth and in Thompson, in favor of the plaintiffs, for the striking out the defense set up, the appelproportionate share of the claims of Ehren- lants have assigned error. As will appear werth in the net proceeds of the goods in from the pleading, the defendants did not atthe hands of Stafford & Co. R. E. Stafford tempt, as contended by appellees, to set off & Co. alone have excepted to the judgment unliquidated damages for a breach of the and given notice of appeal, and brought the agreement of Ehrenwerth with them against case up. Wells Thompson has assigned er- the plaintiffs, but, as defense to the entire rors, and seeks a reversal of the judgment as cause of action, that, according to an agreeto himself.

ment with Ehren werth, they were not to be Motions have been filed by the appellees, charged with the amount of their bid for the Leon & H. Blum, to strike out the assign-goods, and that their claims were to be paid ment of errors made by the trustee, Wells off and discharged, and the remaining goods Thompson, and to dismiss the appeal. The were to be delivered over to Ehrenwerth, so ground urged for the dismissal of the appeal it will not be necessary to inquire whether is that this court has never acquired juris- unliquidated damages might be set off as diction thereof, because the appeal bond is growing out of the transaction. It was cominsufficient, since it is made payable, not petent for defendants to make such an agreeonly to Leon & H. Blum, the only appellees ment with Ehrenwerth as they set up in the in the case, but also to H. M. Ehrenwerth, pleading stricken out, and, if true, it would be who was dismissed from the suit as an im- a complete defense to the suit; and, while it proper party, and to Wells Thompson, was not necessary that Ehrenwerth should against whom judgment was aiso rendered, be a party in order to enable the defendants and who has not appealed. The judgment to avail themselves of the defense, he was at of the court dismissing Ehrenwerth was least a proper party. But if the allegations clearly such a one as the appellants have the of the pleadings showed a proper case for the right to have reviewed; and, as the judg- appointment of a receiver (which is not dement is of such a nature that a reversal as cided, because Ehren werth had been disto the appellants would cause a reversal as missed when the case was tried on the merto Thompson, and he was abiding by the its), and the goods were placed in the cusjudgment, it was correct practice for R. E. tody of an officer of the court upon the alleStafford & Co., who alone desired to appeal, gations of the defendants that they were the to make their bond payable to all of the property of H. M. Ehrenwerth, pledged to other parties to the judgment. As Wells them for the payment of the debts of himThompson did not give notice of appeal, self and H. S. Levy, and it was sought to and had not filed an appeal bond, his assign- have them sold for that purpose, then Ehren. ment of error will be disregarded.

werth would have become a necessary party Appellants have assigned as error the re- to the suit. taining of jurisdiction of this suit by the Under the pleadings, the defendants had a clear right to have the proceeds of the cars ! and showing on behalf of plaintiffs. But sold by Ehrenwerth set off against the de- without this we think the plaintiff would mand asserted by plaintiffs. The evidence have been amply protected by a subrogation shows clearly that there was no release of the to the security of the defendants, as they mortgage upon the cars by R. E. Stafford & would not be allowed to avail themselves of Co. ercept for the purpose of effecting the the set-off, and to hold on to the security. sale thereof, and that there was no intention Defendants did not show themselves to be ento release the proceeds, and that Ehrenwerth titled to have the two attorneys' fees of $500 received the proceeds of the sale for the bene- each, paid by them to Foard, Thompson & fit of the mortgagees. He does not testify Townsend on account of the Levy deed of that there was a release of the proceeds, and trust and the Ehrenwerth deed of trust, set the court found that he went to St. Louis and off against the plaintiffs, because it did not sold the cars by the authority of the repre- appear that Ehrenwerth was liable for the sentatives and survivors of R. E. Stafford & fee in the matter of the deed of trust exeCo. as the firm was constituted when the cuted by him to Sandmeyer; and in the matmortgage upon the cars was made. The Co- ter of the Levy deed of trust he would not be lumbus, Texas, Meat & Ice Company was no liable for more than a proportionate part of doubt indebted to Ehrenwerth in a large a reasonable fee. amount for his salary as its secretary and In view of another trial, we will state that general manager, but the money received by the trustee, Wells Thompson, discharged the him was for the benefit of the defendants as duties imposed upon him by the deed of much as if it had been the proceeds of a sale trust when he sold the goods, and deposited of the property under foreclosure. The debts the proceeds thereof with R. E. Stafford & of the corporation for the salaries of its offi- Co., and there should be no judgment against cers are not entitled to priority of payment him. Although the proceeds of the goods out of the proceeds of mortgaged property may stand credited to his name on the bank over the lien of the mortgagees. Plaintiffs books of R. E. Stafford & Co., still a judg. seek to defeat the set-off in favor of defend- ment in the case in favor of or against the ants R. E. Stafford & Co., showing that | plaintiffs would adjudicate the disposition of the Columbus, Texas, Meat & Ice Company the fund, and be binding on Thompson. We bad been insolvent almost from the time of do not think it necessary to notice any of the its organization; that it had been kept in remaining assignments of error. For the eroperation for the benefit of R. E. Stafford & rors above indicated, the judgment of the Co., who were large creditors; and that R. E. court below will be reversed and the cause reStafford & Co. were equitably bound for the manded. Reversed and remanded. 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

KINGSBURY et al. v. CAROTHERS et al. all such evidence should have been sustained. As above indicated, we do not think that the

(Court of Civil Appeals of Texas. May 23,

1894.) proceeds of the sale of the cars were money belonging to the Columbus, Texas, Meat & Note PAYABLE ON COSTINGENCY ACTION- De

FENSE-FACTS SHOWING FAILURE OF CONSIDERIce Company, so that Ehrenwerth might ap

ATION-INSTRUCTION. propriate it to the debt of that company to

1. In an action on a note of C. and anhim by retaining and charging himself there

other, which recited that it was given in part with on the books of the company. What- payment for stock in the W. Cattle Co., on the ever right he had to appropriate the money condition that “the United States government for the debt due him for services as secretary

does not take action before May 1, 1890, which

will prevent C. or his assigns from using the and general manager must grow out of his pasture leased by the W. Cattle Co. from the right to look to Stafford & Co. for payment. Cherokee Live-Stoc Association until October We do not think that the testimony is suffi

1, 1890," defendant could allege and prove that

in February, 1890, the government took such cient to show that Stafford & Co. became

action as to prevent C. from using such pasture; liable to Ehrenwerth for his salary, as found į that when the note was made it was known by the court below. Appellants had the le- that the pasture was to be used as a summer gal right, under the statute (Rev. St. art. 645),

pasture. for fattening cattle for the market in

the fall of 1890; and that the cattle were to to set off their notes upon H. M. Ehrenwerth

be put in it before May 1, 1890, and could not against the demand of the plaintiffs, notwith- be placed in it until early in the spring of 1890. standing the fact that such notes were se

2. It was shown, in such case, that C. was cured by a deed of trust upon property.

using the pasture for fattening cattle to be sold If

in the fall; that, in pursuance of his plan, he there were any equitable reasons why the sold all the cattle he had in the pasture in 1889, property should be sold first, aud the pro that, before he could again restock the pasture,

on the market, in November of such year; and ceeds applied to the debt of Ehrenwerth in

the government, in February, 1890, took action favor of defendants, they were on account of

to prevent the use of the pasture by C. Held, the insolvency of Ehrenwerth, and related that it was not error to refuse to charge that only to himself and the plaintiffs; and, if

if defendant had cattle in the pasture when the

note was made, and afterwards sold them, such Ehrenwerth were a party to the suit, such re

acts would be a voluntary abandonment of the lief might have been had on proper pleading pasture, and plaintiff might recover.

Appeal from district court, Bexar county; or his assigns, from using the pasture leased W. W. King, Judge.

by the Winfield Cattle Co. from the Cherokee Action by W. J. Kingsbury and others Live-Stock Association until October 1st, against William S. Carothers and others on 1890. The above note is given as part paya promissory note. From a judgment for de- ment for twenty-five shares of certificates of fendants, plaintiffs appeal. Affirmed, and stock in the Winfield Cattle Company, and rehearing denied.

not negotiable until May 1st, 1890, and only McLeary & Fleming, for appellants. John

then on conditions above named. W. S. A. & N. 0. Green, for appellees.

Carothers. Ike T. Pryor.”

Indorsements thereon: FLY, J. Suit was instituted by appellants, “Tempa, Arizona, Mch. 31st, 1889. For on a promissory note for $2,250, against ap- value received, I hereby assign the within pellees. It is alleged that the contingency note to A. M. Franklin and W. J. Kingsbury upon which the note was not to be paid had without recourse. F. M. Stewart." not arisen, and that the United States had "Arkansas City, Kan. Aug. 31/89. We, not taken any action which would prevent Hume Bros., agree to assume payment of this appellees from using the pasture. The con- note according to the stipulation expressed sideration for the note was 25 shares in the therein. Hume Bros." Winfield Cattle Company, and the note was This note was duly protested for nonpayto be paid unless action was taken by the ment. United States government before May 1, (2) On February 17, 1890, Benjamin Har1890, which would prevent W. S. Carothers rison, president of the United States, issued or his assigns from using the pasture leased a proclamation, wherein, after the preamble by the Winfield Cattle Company until Oc-setting forth the necessity for his action, it tober 1, 1890. In the answer of appellees, was proclaimed “that no cattle or live stock among other things, it was alleged that the shall hereafter be brought upon said lands United States government bad on the 17th day for herding or grazing thereon,” and that all of February, 1890, taken such action as to the cattle on the lands should be removed not prevent Carothers from using the pasture, later than October 1, 1890. The land reand the note was null and void; that, at the ferred to was the Cherokee strip or outlet, time of the execution of the note, it was being the land in which the pasture menknown and understood that the pasture was tioned in the note is situated. to be used as a summer pasture, for fatten- (3) The only use to which Carothers de ing Texas cattle for northern markets in the sired to put the land was as a summer pasfall of 1890; that the cattle were to be in- ture, in which he could put Texas cattle, and troduced into the pasture before May 1, 1890, fatten them for the northern markets. and could not be placed therein until the (4)When the note sued upon was executed, early spring of 1890, and that it was thought it was known how uncertain a tenure was that if the cattle were placed in the pasture the lease upon the land, and, in anticipation by May 1, 1890, they would be permitted by that the federal government might prevent the government to remain therein until they the use of the grass for another summer, the were fattened for the fall market; that the condition was inserted in the note. cattle that were in the pasture at time of (5) It was known to F. M. Stewart, at time execution of the note were being fattened of execution of the note, that it was given for the fall market of 1889, and were not in- for the pasturage of cattle to be brought into tended to be kept through 1890. The an- the strip or outlet in the following spring, swers were excepted to by appellants be- and he knew that the cattle in the pasture in cause the suit was based upon a written con- August, 1889, would all be sold in the fall, tract, and the answers set a new and alto- in northern markets; and the object in makgether different contract, resting on parol, ing arrangements for the pasture was to have and there was no allegation of fraud or mis- a place to fatten other cattle the following take. The exceptions were overruled, and year for the northern market. the trial resulted in a verdict and judgment (6) The United States government preventfor appellees.

ed the use of the pasture intended by the We find the following facts established by parties, and the consideration for the note the record:

had failed. (1) The note sued on is as follows:

(7) The land could not be used as a winter "Ark. City, Kas., Aug. 12th, 1889. On May pasture, and was only used as a pasture from 1st, 1890, for value received, I promise to pay April to October, and for years had been to the order of F. M. Stewart the sum of used for no purpose except to fatten Texas twenty-two hundred and fifty dollars ($2,- | cattle brought there in April for the northern 250.00), at the First National Bank of Arkan- market in the fall. No cattle were in the sas City, Kansas, with interest at the rate of pasture after November, 1889. 12% per annum after maturity until paid. It becomes necessary, as a condition pre The above note is given on the following cedent to recovery, that appellants should conditions, to wit, that the United States show that the United States government had government does not take action before May not taken action before May 1, 1890, which 1st, 1890, which will prevent W. S. Carothers, prevented W. S. Carothers or his assigns from using the pasture; and appellees would All of the other assignments go to the adbe entitled to plead and prove any facts that mission of the testimony showing the use to would go to show that they were prevented be made of the pasture, and are disposed of by the government from using the pasture as by what has been said in regard to the was contemplated by the parties at time of points hereinbefore discussed. It was not making contract. The evidence introduced error to overrule the motion for a new trial. by appellants showed that the president of There is no objection made to the charge. the United States had issued a proclamation The judgment is affirmeå. preventing any one from bringing cattle into the country, in which the pasture was sit

On Motion for Rehearing. uated, after February 17, 1890, and this of There is no evidence whatever to show that itself showed an interference with the use appellees 'abandoned the pasture, but held of the pasture before May 1, 1890, for any the same, and expected and desired to use it purpose except the pasturage of cattle that for the purposes for which it was rented, might be in it at the date of the proclama- until prevented by the proclamation of the tion. We are of the opinion that it then be- president of the United States. Such being came proper and legitimate for appellees to the state of facts, there could have been no prove that the pasture was to be used for grounds for giving the requested charges fattening cattle to be brought from Texas numbered 1 and 4. The testimony to which and other points. This class of proof did objection was made does not vary the terms not set up a new contract, nor vary the one of the written contract in any manner or upon which the suit is founded, but simply form, but simply explains. It was permisexplained it. The question in the case was, sible for that purpose. The motion for redid the United States government take such hearing is overruled. 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

BARELLI et al. v. WAGNER. can it be said to be a new contract that is (Court of Civil Appeals of Texas. Oct. 12, pleaded, when the allegations of the answer

1893.) merely show that the use intended was ATTACHMENT AGAINST NONRESIDENT · AFFIDAVIT known to the parties to the contract, and

--PERSONAL JUDGMENT. that the contingency upon which payment

1. The fact that the affidavit for an attachwas not to be made had arisen? The terms

ment against a nonresident fails to state, as reof a written contract cannot generally be

quired by the statute, that the attachment was

"not sued out for the purpose of injuring the varied by parol evidence, but evidence to ex- defendant," does not render void the subsequent plain an ambiguity in a written instrument, judgment and sale thereunder of the land at

tached. or an ambiguity that may arise in applying

2. The fact that the court rendered a perthe instrument to the facts, is admissible. sonal, and therefore void, judgment against a In this case the use to which the pasture was nonresident defendant, not served, did not vito be put is left uncertain, and parol testi

tiate so much of the judgment as adjudged the

amount due plaintiff, and directed a sale of atmony would be proper to explain it. Parol

tached property to satisfy the same. evidence is admissible to show the circumstances under which the contract was made, H. Clay Pleasants, Judge.

Appeal from district court, Victoria county; and the relation of the parties to each other

Trespass to try title by Laura E. T. Barelli in respect to it. 2 Whart. Ev. $ 927, and note; 1 Greenl. Ev. 283 et seq.; Bish. Cont.

and others against Frank Wagner. From a $ 372. There was no error in overruling the

judgment for defendant, plaintiffs appeal.

Affirmed. exception to the apswers. It follows from what we have said that it was not error to Fly & Hill, for appellants. S. B. Dabney refuse the special charges, in which the jury and W. H. Wilson, for appellee. are instructed that if appellees had cattle in the pasture when the promissory note was GARRETT, C. J. This is an action of tresexecuted, and afterwards sold them, this pass to try title for the recovery of an undiwould be a voluntary abandonment of the vided one-half interest in and to lot No. 1, pasture, and appellants should recover. It block No. 91, situated in the city of Victoria, was shown that Carothers was using the instituted by Laura E. T. Barelli and others pasture for fattening cattle to be sold in the against Frank Wagner. Plaintiffs showed fall, and that in pursuance of his plan, hav. title in themselves to the land in controing fattened all the cattle he had in the pas- versy, as the heirs of John C. Barelli, deture, in November he placed them upon the ceased, and should recover in this suit, un. market, and sold them; and, before he could less the defendant acquired title thereto by again restock the pasture with lean cattle, virtue of a judicial sale of the land made in the contingency which was expected, and the case of Samuel M. Todd v. John C. Baguarded against in the contract, arose. It relli brought in the district court of Victoria was never contemplated by the parties that county by attachment against the said John the cattle in the pasture in August, 1889, C. Barelli, as a nonresident of the state. The should remain in there until October, 1890. suit of Todd v. Barelli was brought in Jan

v.27s.w.10.1-2

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