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* closure upon said land was obtained, or had notice of the filing Of Said Suit Or the proceedings had therein until after the levy of the Order of Sale upon their land. Upon the presentation of the appellees' petition Hon. Horton B. Porter, judge of the Sixty-Sixth judicial district of Texas, on March 31, 1917, granted the writ of injunction as prayed for, returnable to the district court of Hill county, Tex., and on the 30th day of May, 1917, the appellant Monnig Dry Goods Company filed a motion to dissolve Said Writ. The grounds of the motion are as followS. “(1) That this honorable court had no jurisdiction or venue to issue the writ of injunction aforesaid restraining the mandate of a sister district court for the reason that the statutes of the state of Texas, to wit, Revised Statutes, article 4653 (2996), of the state of Texas, provide: Writs of injunction granted to stay proceedings in a suit or execution on a judgment, shall be returnable to, and tried in the court where such suit is pending, or such judgment is rendered. * * * “(2) That such requirements of such statute mentioned in paragraph 1 above are imperative, and that this court has no authority, jurisdiction or venue to have issued said writ of injunction as aforesaid.” When the case was called for trial in the district court the motion to dissolve was presented and Overruled. The cause then proceeded to trial before the court without a jury and judgment rendered in favor of appellees perpetuating the injunction theretofore granted, and appellants perfected an appeal to this court. There is but one assignment of error presented in the brief. This assignment complains of the action of the trial court in OVerruling appellants' motion to dissolve the injunction, asserting as the basis of their complaint the statute which provides that Writs of injunction to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the Court where such suit is pending or such judgment was rendered. This statute has been repeatedly construed by the higher courts of this state, and we have experienced but little difficulty in determining what we regard as the correct

disposition to be made of this appeal. It is true, the general rule laid down by the Statute is that a writ of injunction to stay an execution on a judgment must be made returnable to the court of the county where the judgment was rendered; and this rule is especially applicable, it seems, when the injunction proceedings restrain the Sale of Specific property described in an order of Sale, the effect of which is to suspend the process, and questions the Validity and regularity of the process. Hendrick V. Cannon, 2 Tex. 259; Seligson & Co. v. Collins, 64 Tex. 314. But “where the property of a person, who is not a party to the judgment, has been levied upon, he may claim that his rightS Shall be tried in the court of his domicile.” Winnie v. Grayson, 3 Tex. 429; Cooper Groc. Co. v. Peter, 35 Tex. Civ. App. 49, 80 S. W. 108; Kruegel V. Rawlins, 121 S. W. 216. Nor are the Statute and the rule applicable to injunctions seeking to reStrain. On the ground of exemption the Sale of One's homestead. In such a case the district court of the county where the party seeking injunctive relief resides has jurisdiction to try the issue of homestead Or not, and is not without power to proceed to judgment in the case. Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250; Wan Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Seeligson v. Gifford, 46 Tex. Civ. App. 566, 103 S. W. 416. In the case at bar no attack was made on the validity of the judgment Or Order of Sale enjoined, and the statute invoked by appellant did not apply, and the district court was not without power to proceed to judgment, because the appellees were Strangers to the foreclosure judgment upon which the Order of Sale enjoined was issued, and because the land levied upon by virtue of Said order of sale was claimed by appellees to be a part of their homestead, and, according to the undisputed evidence, was a part of their homestead. This disposes of the Only question presented for decision, and as the district court correctly ruled upon that question, its judgment is in all things affirmed. Affirmed.

SMITH v. McBROOM. (No. 7959.)

(Court of Civil Appeals of Texas. Dallas.
May 18, 1918. Rehearing Denied
June 15, 1918.)

1. EVIDENCE (3:317(6)–HEARSAY. In an action for a balance on the purchase price of cotton, sold under a contract to pay such price if cotton advanced to that point, evidence that plaintiff had been offered, on the day he sold the cotton to defendant, more than defendant offered him, was not hearsay. 2. SALEs 6=358(4)—REMEDIES OF SELLEP— | EVIDENCE—MATERIALITY. In an action to recover a balance on the purchase price of cotton sold, evidence that witness, who graded the cotton, had graded it three points above middling, was material; middling cotton being the basis upon which cotton is bought and sold. 3. SALES @:358(4) — REMEDIES OF SELLER EVIDENCE—MATERIALITY. In an action for the balance of the purchase price of cotton, sold under a contract whereby the buyer was to pay the price sued for if the market advanced to that point, evidence that the cotton graded three points above middling was admissible to support plaintiff’s allegation that such cotton as his had sold at the market at the price contemplated by the contract. 4. SALEs (3:358(4)—REMEDIES OF SELLER— EVIDENCE—MATERIALITY. In an action for the balance of the purchase price of cotton sold at 11% cents, to be increased to 12 cents if the market advanced to that point within a certain time, evidence that plaintiff’s cotton was better than the cotton of the Witness who had sold his cotton for 12.65 cents was material, as tending to show that cotton of the grade and character of plaintiff’s cotton had sold on the market at an advanced price. 5. TRIAL (3:145 – JURY QUESTIONS - WITHDRAWAL OF ISSUES. In an action for the balance of the purchase price of cotton, sold at 11% cents under agreement to pay 12 cents if the market price advanced to that point within a certain time, it was not error to submit the case on the issue as to whether the contract was to be governed by the Hillsboro or New York market, where that was the only material issue in dispute. 6. TRIAL (3~141—QUESTION OF FACT-ESTABLISHED ISSUES. Issues of fact disclosed by the pleadings should not be submitted to the jury for decision, when such issues are established by the evidence beyond controversy.

Appeal from Hill County Court; R. T. Burns, Judge. Action by Isaac McBroom against A. L. Smith, commenced before a justice of the peace. From a judgment for plaintiff, on appeal to the county Court, defendant ap

peals. Affirmed.

J. J. AVeritte and Wear & Frazier, all Of Hillsboro, for appellant. Clarke & Clarke, of Hillsboro, for appellee.

TALBOT, J. Appellee sued appellant in the justice court to recover the sum of $115.66. He recovered judgment for that amount and appellant appealed to the County court. In the county court judgment was again rendered in favor of the appellee for

the amount sued for, and appellant perfected an appeal to this court. The citation issued in the justice court shows the cause of action upon which the appellee sought to recover, , and upon which he did recover, to be in Substance as follows: On or about the 11th day of March, 1916, appellee sold and delivered to appellant 40 bales of cotton, Weighing 23,130 pounds. In making the Sale, appellee demanded 12 cents per pound for his cotton, and refused to sell for less. In order to buy the cotton, appellant agreed that, if appellee Would sell it to him on said day, he (appellant) would pay appellee cash on delivery of the cotton 111% cents per pound therefor, and would pay appellee in addition one-half cent per pound if cotton of the grade of appellee's cotton Should bring 12 centS per pound in the cotton market at Hillsboro, Hill county, Tex., by the 1st day of May, 1916. Upon said condition and agreement appellee sold and delivered to appellant, on the 11th day of March, 1916, the cotton, and received 11.1% cents per pound for the same. Between said date, and before May 1, 1916, or April 25, 1916, Cotton of the character and grade Of the cotton bought by appellant from appellee Sold for and brought on the market in Said Hillsboro 12 cents per pound or more, and thereupon appellee demanded of appellant the additional one-half cent per pound for his. Cotton, Which amounted to $115.66, the amount sued for and recovered in this action, but appellant refused to pay the same. The appellant pleaded, in substance, among other things not necessary to State, a general denial, and that the contract entered into betWeen him and appellee Was that appellant would pay to appellee one-half cent per pound for the cotton, in addition to the cash payment, if the price of cotton advanced that much between the date of sale and the 25th day of April, 1916, or if it did not adVance that much he would pay him “the difference to the advance,” and that the contract was to be governed, not by the Hillsboro market, but by the New York market; that, according to and governed by the New York market, cotton of the grade of appellee's Cotton did not advance in price, between the dates agreed On, as much as Onehalf cent per pound, but only advanced about “30 points,” which left appellant due appellee $30.07. This amount appellant tendered, and asked for judgment. The case Was Submitted to a jury upon One special issue, namely: “Was the contract entered into by and between plaintiff and defendant to be governed by the HillSboro or New York market?” The jury anSWered that the contract Was to be governed by the Hillsboro market, and thereupon the court rendered judgment in favor of the appellee as hereinbefore stated. There are a number of assignments of error, but they

need not be stated and discussed in detail. The questions raised, and which are discussed, Will sufficiently appear from what We shall Say in disposing of them. [1] The testimony of the appellee, to the effect that he had been offered for his cotton, On the day he sold it to the appellant, more than appellant offered mim for it, was not hearsay, and, if immaterial, it is not probable that any injury resulted to appellant from it. The statement, however, was probably pertinent and admissible as a part of the ConVersation and negotiations leading up to the Sale of the Cotton, and as ShOWing a reason why appellee declined selling at the price of 11.3% cents offered by appellant. Appellee Was asking 12 cents per pound for his cotton, and appellant offered him 111% cents per pound. When this offer Was made, appellee Said to appellant that he COuld not take it, for he had been offered 11.65 cents per pound. [2, 3] Nor Was the testimony of the Witness W. H. Wood, to the effect that he graded appellee's cotton, and that it graded about three points above middling, immaterial. The testimony of appellant was that middling cotton is the basis upon which cotton is bought and Sold, and that he bought appellee's cotton as middling cotton; that he knew about what the grade was, and bought it without grading it himself. The record does not Sustain the COntention “that the agreement was that Mr. Smith [appellant] was to take Mr. White's grade.” The testimony of appellee in this connection Was, in substance, simply that he told appellant, when appellant wanted to know if the cotton had been graded, that Mr. Jim White had graded the cotton, and that appellant replied, “All right; I will buy it on Jim White's grade.” Appellant testified that he did not agree to take the cotton upon the grade fixed by Mr. White; that he did not

always grade cotton when he bought it, and

did not grade appellee's cotton, but that he had an idea that it was about middling cotton. Again, the testimony objected to Was admissible in support of appellee's allegation

“that such cotton as his was had sold in the Hillsboro market for 12 cents per pound between March 11, 1916, and May 1, 1916.” [4] There was no error in permitting the witness Hawkins to testify to the effect that from his observation and knowledge of appellee's cotton he would say appellee's cotton was better than his. The Witness testified that he sold his cotton to appellant On April 12, 1916, for 12.65 cents, and sufficiently qualified as an expert in the grading of cotton to render his testimony upon the subject admissible. The testimony was not immaterial, as it was essential to appellee's right of recovery that he show that cotton of the grade and character of his cotton had Sold On the market of Hillsboro, between March 11, 1916, and May 1, 1916, or April 25, 1916, the latter being the limit of time for the advance in the price of cotton according to the contention of appellant, for as much as 12 cents per pound. For practically the same reasons, the fifth, sixth, seventh, and eighth assignments of error are OVerruled. [5, 6] The contention that the court erred in submitting “the case to the jury simply On the iSSue aS to Whether the contract was to be governed by the Hillsboro or New York market” will also be overruled. This issue Was practically the only material issue about Which there Was any dispute in the evidence. The other alleged facts upon which appellee's right to recover depended were very clearly and Conclusively established, and the submission of the single issue named was correct. Issues of fact disclosed by the pleadings should not be submitted to the jury for decision, When such issues are established by the evidence beyond controversy. The Verdict and judgment rendered are clearly supported by the evidence, and the Special charge requested by appellant, directing the jury to return a Verdict in his favor, was correctly refused. There is no reversible error pointed out by any assignment of error, and the judgment of the county court is affirmed.


(Court of Civil Appeals of Texas. May 22, 1918.)

1. VENDOR AND PURCHASER G->39–VENDOR'S IDIEN NOTES—LEGALITY OF OBJECT-PARTICIPATION IN LOTTERY. Although the vendor at the time of the contract had no notice nor information of the vendee's intention to dispose of the land by lottery, if, prior to the execution of vendor's lien notes and deed, he learned of such scheme and participated in it, he could not recover on the notes. 2. VENDOR AND PURCHASER Q->39–VENDOR'S LIEN NOTES—LEGALITY OF OBJECT-PARTICIPATION IN LOTTERY-SUFFICIENCY OF PARTICIPATION. In such case, the question of the vendor's participation in the profits of the lottery was not determinative of his participation in the illegal scheme, and the mere fact that he was not to receive any of the profitS did not negative his participation.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

(No. 1263.)


Action by J. B. Stone against Jim Robin

SOn, Jr., and OtherS. Judgment for defendants and plaintiff appeals. Affirmed.

Bean & Klett, of Lubbock, for appellant. W. D. Benson and Percy Spencer, both of Lubbock, for appellees.

BOYCE, J. This case was before this court once before, Stone v. Robinson, 180 S. W. 135. On this appeal the parties acquiesce in the construction of the power of attorney as adopted by this court on the former appeal, and entirely different questions are now presented.

The suit was brought by appellant, Stone, on certain vendor's lien notes, executed by appellee, Robinson, and to foreclose the vendor's lien retained to secure the payment of Said notes On certain lots and blockS platted as an addition to the town of Lubbock, TeX. The defense on which the judgment of the court below is based WaS that the COntract by which said property was sold by Stone to Robinson was unenforceable because it was the purpose and intention of the said Robinson to Subdivide the property Which Was SOld and conveyed as acreage property into lots and blocks and resell the Same by lottery, in Violation of law; that Stone knowingly aided and abetted the carrying out of said plan, and is therefore not entitled to recover On the notes executed and delivered as a part of said illegal purpose.

The evidence shows that some time, from one to three months, before the execution of the deed to said property and the Vendor's lien notes sued upon, Stone and Robinson entered into a Written contract by which Stone agreed to sell said property to Robinson for a consideration of $9,500, $1,000 paid in cash at the time of execution Of Contract and $1,500 additional in cash before delivery of

deed, the balance of the consideration to be evidenced by two notes, each for $3,500. There is some dispute as to the amount of the cash consideration, but we do not think this material to a decision of the case. The Contract Was closed in accordance with the provisions of this contract by the execution and delivery of the deed by Stone, and the execution and delivery by Robinson of the notes sued upon, the deed retaining a vendOr's lien to Secure the payment Of Said notes. The contract and deed executed in pursuance thereof described the land as acreage property, as it had not been platted as town property at the date of the original contract. Prior to the execution of the deed the property Was Subdivided and platted as toWn property, and Robinson entered upon the execution of his purpose to sell the same by a lottery plan, Which WaS to Sell the unimproved lots at $30 per lot, giving to the purchaser of each lot a ticket and then have a drawing, the holder of the lucky number to receive, without further charge, the lots having the improvements thereon, consisting of a nice dwelling house With Other appurtenant improvements. Stone did not knoW Of Robinson’s purpose at the time he executed the Original COntract, but learned of it prior to the execution of the notes and deed, and during this time he assisted the Said Robinson in Said Scheme to Some extent by “boosting Robinson's sales,” using appellant's own statement. At the time of the execution of the deed said Stone also executed an agreement and power of attorney, copied in the former opinion in this case, by the terms of which he agreed to release any lot sold except the lots on which the improvements were situated, upon payment of the sum of $30. The evidence Was Such as to Warrant the finding that this Was done for the purpose of accommodating the contract to the lottery Scheme. Special issues were submitted and answered by the jury as follows: “Special Issue No. 1: At the time of the original contract of sale, did J. B. Stone know

that the property was being purchased with the intention of disposing of the same by lottery? Answer: No. “Special Issue No. 2: Did the plaintiff, J. B. Stone, at the time of the execution of the deed to Jim Robinson, Jr., know that the property purchased was to be used as and disposed of by lottery? Answer: Yes: “Special Issue No. 3: Did the plaintiff, J. B. Stone, knowingly receive any of the proceeds derived from said lottery, in payment for said property? Answer: Yes. “Special Issue No. 4: Did the plaintiff, J. B. Stone, know, at the time he executed the deed to Jim Robinson, Jr., that the house on said tract of land was to be given away as a premium in drawing? Answer: Yes. “Special Issue No. 5: Did the plaintiff, J. B. Stone, at the time of the execution of the deed to Jim Robinson, Jr., know that the vendor's lien notes received by him were to be paid, in whole or in part, out of the proceeds realized from the sale of lots in connection with a lottery? Answer: Yes. - - “Special Issue No. 6: Did the plaintiff, J. B. Stone, tell any purchasers, or prospective purchasers. of said lots that the house was to be given away as a premium? Answer: Yes: “Special Issue No. 7: Did the plaintiff, J. B. Stone, by word or act, encourage the purchase, or prospective purchase, of any lot with a chance at the house? Answer: Yes.” In addition to the foregoing issues the court, at Stone's request, submitted the following special issue: “Did the plaintiff and the defendant, Jim Robinson, Jr., enter into an agreement whereby it was agreed. that the said J. B. Stone should participate in the profits of the sale of said lots by lottery?” To which the jury answered, “No.” Two assignments are presented: They both assert that the judgment is contrary to the findings of the jury, the first being general and the second specifically affirming that this is true because— “the jury having found in answer to special issue No. 1 that the plaintiff did not know, at the time of the original contract of sale, that the property was being purchased with the intention of disposing of it by lottery, and having further found, in answer to the first special charge requested by the plaintiff, that there was no agreement between plaintiff and Jim Robinson, Jr., that plaintiff should participate in the profits of the sale of said lots by lottery, and there being no other finding of the jury showing that plaintiff profited by the alleged lottery, judgment should have been in favor of plaintiff for the amount of the notes sued on, with foreclosure of vendor's lien.” [1] For the purpose of the decision We Will assume that it is the law in this State that when the contract sued upon is not itSelf illegal, but it was the purpose of One of the parties to put the subject-matter of the contract to an illegal use, the other party may not be denied recovery unless the facts are sufficient to show a participation on his part in the unlawful purpose. Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808; Houck v. Anheuser-Busch Brewing Association, 88 Tex. 184, 30 S. W. 870; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418. See, also, comment On last-named case in Wiggins v. Bisso, 92 Tex. 219, 47 S. W. 639, 71 Am. St: Rep. 837. Appellant does not, by these or other assignments, question the Sufficiency of the evidence to Show that Stone aided in various ways the carrying forward Of the unlawful plan, but contends that aid therein so given should not have the same effect as if the participation was the result of knowledge, and intent to participate therein, of the unlawful design at the time of the execution of the contract. The effect of the argument is that the rights Of the parties were fixed at the time of the execution of the original written contract, the deed and notes were in consummation thereof, and, since the original contract was pure, it cannot be contaminated by appellant's subsequent participation in the illegal design of appellee Robin Son. Contracts of a character We are considering do not themselves provide for the

doing of anything illegal. They impose Obligations that are themselves perfectly legitimate, and which may be imposed and asSumed in the transaction of a proper and legal business; but, on the ground of public policy and as a means of discouraging the perpetration of crime and Wrong, not for the purpose of protecting either one of the guilty participants in the Wrong, the law refused to lend its aid to the enforcement of rights in favor of any of the parties who are shown to have been engaged with the other in the transaction out of which the appeal to the courts arises which involved the commission of Some crime or wrong condemned by law. We have been referred to no authority Which holds that in the case of the unexecuted contract the participation, in order to place the party Seeking the relief of the court outside its protection, must be the result of an intent formed at the time of the execution Of the COntract. When the theretofore innocent party to an executory contract learns of the unlawful purpose of the other, it seems that he may refuse to proceed with it, and Will be justified by the law in his refusal. Mechem on Sales, § 1010; C. J., vol. 13, p. 517, $475; 9 Cyc. 571. The original ignorance of one party to a contract that any unlawful purpose was contemplated by the Other party might be a material circumstance in arriving at the real purpose and intent of Such party, and as determining the character of acts which do not unequivocally indicate the intention to aid the Other in Such matter, but we think it would be an unsafe proposition, and one not founded on the reason for the general rule, to say that a party, innocent of wrongful purpose at the time of the execution of an executory contract, might thereafter actively aid and participate in the commission of the wrong intended by the other party in the use of the subject-matter of the contract, and yet invoke the assistance Of the court in the enforcement Of rights under the contract consummated after his entry into the unlawful plan of the other contracting party. For instance, the authorities all hold that the crime intended to be consummated by one of the parties might be SO heinous that the Sale Of the means Of the commission of the crime by One with knowledge of the other's purpose would itself be a participation in the crime and preclude a recovery on the contract of sale. One with knowledge of the purchaser's purpose, selling a pistol with which to commit murder, or arsenic with which to poison another, or goods to aid the public enemy, So participates in the crime committed by the use of such articles by the Other that he stands condemned by law and good morals, and certainly could not successfully Sue and recover the price agreed to be paid by the purchaser. Hanauer v. Doane, 12 Wall. 342, 20 L. Ed. 440; Mechem. On Sales, §§ 1015, 1016. Now, suppose that such a seller had a

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