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SWEARINGEN, J. Plaintiffs in error, Parlin & Orendorff Company, a corporation, filed this suit against Frank D. Glover and Cullen Crews, defendants in error, to recover a Carload of Bain wagons, alleged to have been obtained by McMeans from plaintiffs in error through fraud. Plaintiffs in error had the property sequestered while possession was claimed by defendants in error, Glover and Crews. A jury was impaneled to try the cause, and Special issues requested by plaintiffs in error to be submitted to the jury. Upon the conclusion of the testimony, the court instructed a verdict for the defendants in error, and rendered judgment thereupon that defendants in error recover against plaintiffs in error and the Sureties on the replevin bond, E. O. Tennison and Guy Simpson, the sum of $1,140. Parlin & Orendorff Company and the two Sureties prosecute this appeal.

The issues indicated by the following facts were sufficiently made by the pleadings: From the evidence it appears that F. D. Glover and Cullen Crews launched A. H. MCMeans in the mercantile business in San Marcos in February, 1897, by furnishing him with $7,500 in cash. Before the store was opened for business, McMeans Ordered the Wagons, here involved. Upon receipt of the Order, plaintiffs in error required a written statement by McMeans of his financial condition. In compliance with the demand, McMeans, in a writing signed by him, stated that he was the SOle OWner Of the buSineSS, and that his assets exceeded his liabilities as fol

lows: Assets: Stock of merchandise, $8,500; cash in bank, $2,000; home, $3,000.

Total assets, $13,500. Liabilities: Current accounts for merchandise, $3,000; surety on note Secured by mortgage, $150. Net asSets subject to execution, $7,350. Believing this statement to be true, and relying thereon, plaintiffs in error sold the wagons on credit. Had McMeans' statement not shown that the liabilities were only 40 per cent, or less, of the assets, plaintiffs in error Would not have sold the Wagons on credit. This financial statement made by McMeans Was false. There is no conflict in the testimony concerning any of the facts So far Stated. The conflict in the testimony renders it uncertain which particular fact in the financial Statement is falsely stated. There is testimony that McMeans did not owe Glover and Crews anything, but that they were partnerS in the business to be conducted in the name of H. A. McMeans. They contributed the cash capital of $7,500, and McMeans contributed his services. The profits were to be divided equally between the three. [1] If the jury determined from this testimony that there was a partnership of the three doing business under the name Of H. A. McMeans, then the financial statement, made by McMeans to procure the Wagons, was not false as to the liabilities and assets, but was false because it failed to truly state the partnership. If the statement did truly state the Ownership of the business, then it falsely stated the liabilities. In either event, the fact is, the statement was false, and plaintiffs in error Were deceived thereby, and title to the Wagons, because Of this false Statement, never passed into MCMeans. [2] Then again there is conflict in the testimony relative to the fact asserted by defendants in error that they were innocent purchasers, for Value, of the Wagons from McMeans; for there is testimony that defendants in error were partners of McMeans, and testimony that they were not. If they were partners, they were not innocent purchasers from McMeans. Further, upon the issue of innocent purchasers, there is this other material conflict in the evidence: There is evidence that the bill of Sale was executed to defendants in error by McMeans for the sole consideration of using all the assets to pay all the indebtedneSS incurred in the Said mercantile business. Parlin & Orendorff Company’s claim Was a part of the indebtedness, and was never paid. [3] The fourth and fifth assignments complain of the court's peremptory instruction to find for defendants in error and refusal to submit the issues made by the foregoing facts, based upon appropriate pleadings, to the jury for determination. In Our Opinion the evidence is COnflicting upon material issues pleaded, and it was the duty of the trial court to Submit Such issues to the consideration of the jury. The court’s direction of a verdict

under the circumstances of this case was error. Ater V. Rotan Grocery Co., 189 S. W. 1106; G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S.W. 329. The fourth and fifth assignmentS are Sustained.

The first three assignments contend that the trial court committed error in its Order overruling three special exceptions to allegations in the third amended answer of defendants in error.

After consideration, we conclude that there is no merit in either of the first three assignments, all of which are overruled.

The judgment is reversed, and the cause is remanded.

FLY, C. J., entered his disqualification, and did not sit in this case.

GREEN et al. v. HALL et al. (No. 853.)

(Court of Civil Appeals of Texas. El Paso.
April 18, 1918. Rehearing Denied
June 6, 1918.)

1. APPEAL AND ERROR <>759—MATTERS REVIEWABLE—ASSIGNMENTS OF ERROR. Under Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), providing that the assignments of error in the motion for new trial shall constitute the assignments of error, the appellate court will not consider assignments which have been reconstructed or are incorrectly copied in the brief, and present the questions raised in a new light.

2. APPEAL AND ERROR <>294(1) - MATTERS REVIEWABLE-SAVING OBJECTION. The correctness of the court's action in rendering a judgment in accordance with the verdict cannot be questioned on the ground that a finding was unsupported by the evidence where no move was made to set aside the verdict.

3. APPEAL AND ERROR Q-1003—FINDINGS OF FACT-PREPONDERANCE OF EVIDENCE. The mere fact that a jury finding may seem to be against a preponderance of the evidence # not authorize the appellate court to set it aS1Cle.

Appeal from District Court, San Saba County; N. T. Stubbs, Judge.

Suit by C. W. Hall and another against C. R. Green and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Walker & Burleson, of San Saba, and F. G. Morris and Jno. L. Dyer, both of El Paso, for appellants. Flack & Flack and Walters & Baker, all of San Saba, for appellees.

HIGGINS, J. On November 28, 1914, W. J. Moore, by written instrument, leased to C. R. Green a tract Of land upon Which marble Was located. The lease provided that it should become null and Void if a quarry Was not established on the land Within two years from January 1, 1915, from which good, marketable marble was being taken in paying quantities. Thereafter Moore forfeited the

lease for alleged failure to establish 8 quarry upon the land within the time limited. from which good, marketable marble Was being taken in paying quantities. Moore then leased the land to C. W. Hall. This suit was brought to recover the land by Moore and Hall against Green and Sublessees of the latter. The case was tried before a jury upon special issues. The jury found that the defendants had not established a quarry upon the land within two years from January 1, 1915, from which good, marketable marble in paying quantities Was being taken. Findings were also made in response to other issues submitted, but they Were irreleVant, and it is not neCeSSary to State Same. Upon the findings made judgment was rendered in favor of Hall and Moore. Motion for new trial was filed and Overruled. SubSequent to the adjournment Of court assignments of error Were filed. Such assignments do not relate to any action or ruling of the trial court or judge, occurring subsequent to the rendition of the judgment, the filing of which is authorized by district court rule 101 (159 S.W. xi). [1] Appellants present in their brief five assignments, copies of assignments, filed as stated, subsequent to adjournment of the trial Court. The first four assignments So presented in the brief are neither true nor Substantial copies of any assignments in the motion for new trial. They are entirely reconstructed, and present the questions raised in a different light from that in which they were presented to the trial court in the motion for new trial. By chapter 136, Acts 33d Leg. p. 276 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), it is provided that the assignments in the motion shall cónstitute the assignments of error. We have no authority to disregard the plain meaning of this legislative provision, and it has been repeatedly held that the courts will not consider assignments which have been reconstructed, or are incorrectly copied in the brief. For the reasons indicated, the assignments cannot be considered. Edwards V. Youngblood, 160 S. W. 288; Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Coons v. Lain, 168 S. W. 981; Watson v. Patrick, 174 S. W. 632; Oil Co. v. Crawford, 184 S. W. 728; Irrigation Co. v. Buffington, 168 S. W. 21; Ruth V. Cobe, 165 S. W. 530. [2] The fifth assignment is so near a true Copy that We have decided to consider same upon its merits, though We Would be well warranted in refusing so to do. This assignment in Substance is that the court erred in rendering judgment for the plaintiffs, because the preponderance of the evidence shows that within two years from January 1, 1915, there was established on the land a quarry from which good, marketable marble was being removed in paying quantities. And in Support of this assignment the proposition is presented that, where the Verdict of the jury is clearly against the preponderance of the evidence, it will be reversed on appeal, though the trial court has refused to set it aside.

G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

There are two answers to this assignment. In the first place, the jury has made an adverse finding upon this issue, and it was not error for the court to render judgment in aceordance with such finding. It could not properly render any other judgment. If the finding was unsupported by the evidence, it was appellant's duty to attack the verdict, and mOWe to Set it aside. They cannot question the correctness of the court's action in rendering a judgment in accordance With the verdict. Scótt v. Bank, 66 S.W. 485; Crawford v. Wellington, etc., 174 S. W. 1004; Hayes V. Fur. Co., 180 S. W. 149; Ins. Co. v. Jesse French P. & O. Co., 187 S. W. 691; Ins. Co. v. Burwick, 193 S. W. 165.

[3] Furthermore, the mere fact that the finding may seem to be against a preponderance of the evidence does not authorize this court to Set it aside. For the rule upon this Subject, See Insurance CO. V. Fulghum, 177 S. W. 1008; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282; Zapp V. Michaelis, 58 Tex. 275; Railway Co. v. Patterson, 173 S. W. 273. Under the evidence in this case, we do not think

this court Would be Warranted in Setting

aside the finding of the jury, and reversing on that ground.

We have COnSidered the first four aSSignments presented in the brief for the purpose of ascertaining whether they present fundamental error which would require reversal, though not properly assigned, and are of the opinion that they do not.

Affirmed.

2:

NATIONS v. WILLIAMS. (No. 6043.)

(Court of Civil Appeals of Texas. San Antonio.
May 8, 1918. Rehearing Denied
June 12, 1918.)

£, 1. CoNTRACTS @:211—CoMSTRUCTION-TIME AS ESSENCE OF CONTRACT. If it is desired to make time of the essence of the contract, the intention must be clearly manifested. 2. CONTRACTS @:305(3)—DELIVERY OF GOODS —TIME-WAIVER. Where under a contract to redeliver films and lobby display within 10 days, they were delivered later to one authorized by the contract to receive them, who accepted the films and money for the lobby display, which acceptance was not repudiated by the owner, time was waived. 3. CONTRACTS &=237(2)—VALIDITY—CONSIDERATION. Where a contract for the right to exhibit a inotion picture was rescinded by a contract to return the films and lobby display, the other

party to return a cow that had been given in part payment, for the right, the new contract WaS Supported by Valid consideration.

4. CoSTS @->231(3)—AWARD–ON APPEAL OR CERTIORARI. Where judgment was rendered for plaintiff in the justice court and upon certiorari plaintiff again obtained the same judgment, but defendant obtained a judgment on a counterclaim not given him below, there was no error in assessing costs of county court to plaintiff under Rev. St. 1911, art. 2046, providing for assessment of costs on appeal or certiorari.

Appeal from Bexar County Court; John H. Clark, Judge.

Suit by D. W. Williams against John Nations and another in, the justice court. DiSmissed as to the other defendant. Judgment for plaintiff. The cause was removed to the county court upon certiorari, where judgment Was rendered for plaintiff and for defendant on a counterclaim. Defendant appeals. Affirmed.

Ben H. Kelly, of San Antonio, for appellant. Harris & Newton and McCollum Burnett, all of San Antonio, for appellee.

FLY, C. J. This suit originated in the justice's court, where appellee sought to recover Of appellant and John Freeman a Jersey cow, or $75, her value. In that court appellee ob- . tained judgment for the cow as against appellant, Freeman having been dismissed from the suit, and appellant in a cross-action for the value of certain films and “lobby display” recovered $18 against appellee, which judgment was set, aside and afterwards judgment by default taken against appellant. By Writ of certiorari the cause was removed from the justice's to the county court. In the latter COurt a jury WaS Waived and judgment was rendered in favor of appellee for the cow, her value being fixed at $75 and in favor of appellant for $18, the Value of a certain display.

It appears from the statement of facts that On October 6, 1914, a Written contract was entered into between appellant and appellee whereby in consideration of $1,110.65, of Which Sum $125 Was Cash and a note for $985.65, appellant sold to appellee the right to exhibit, show, or illuminate a certain motion picture known as the “Dimmit County Smugglers,” in the State Of Louisiana. Appellee exhibited the picture in that state, but the people thereof did not respond with their cash with sufficient constancy and enthusiasm, and appellee, On November 30, 1914, signed an agreement, appended to the Original contract, that the contract was forfeited, and he agreed to return “the films and lobby display” within 10 days to appellant or Freeman “at the Grand Rooms in San Antonio, TeX.” The films Were returned to Freeman in February, 1915, and he accepted them, and also accepted $12 for the “lobby display,” which was not returned. Appellant bound

himself to return the Jersey cow which had been delivered to him as $75 on the cash payment of $125. It was in evidence that the films were ready for delivery early in January and were held awaiting the return of the cow. The cow was to be delivered by appellant in San Antonio. It was about 30 days after the contract was signed that appellant was informed that the films were ready for him in San Antonio.

[1] There was no evidence tending to Show that appellant desired to have the films at once, and there is nothing to show that time Was Of the eSSence Of the COntract. There was no provision in the contract that it should be void if the films were not returned in 10 days. If it is desired to make time of the essence of the contract, the intention must be clearly manifested. Kirchoff V. Voss, 67 Tex. 320, 3 S. W. 548; Telephone Co. v. Huntington, 104 Tex. 350, 136 S.W. 1053, 138 S. W. 381.

[2] Not only was there no manifestation of the desire to make time Of the eSSence of the contract, but the films were delivered to Freeman, who was authorized by the contract to receive them, and he did receive them and accepted $12 in payment of the value of the “lobby display” that had been lost. Appellant Was informed of the act of Freeman and did not repudiate it, and did not return the money to appellee. There was a waiver of the 10 days’ time, even if it had been Of the essence of the contract, and he is estopped to set up the 10-day clause in the contract.

[3] The return of the cow for the return of the films was a sufficient consideration for the new contract. Appellee Saw that he could not realize any profit from the films, and upon representing this fact to appellant it was agreed to abrogate the Original Contract, and their mutual agreement was Supported by a valid consideration. Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S. W. 442; Craig v. Barreda, 200 S. W. 868. [4] The case of Grimm v. Williams, 200 S. W. 1119, decided by this court, does not militate against the ruling in this case as to the time of performance of the contract. In the cited case there was an agreement to pay a certain sum not later than a certain date, and when not paid on that date the person to whom it was to be paid declared the contract rescinded. In this case the condition Was waived and the execution of the contract allowed to proceed. The cross-assignment complains of the action of the court in assessing the costs of the county court against appellee because the appeal was from a judgment by default. The fact remains, however, that appellant obtained a judgment against appellee in the county court which was not given him in the justice's court, and under the terms of article 2046, Revised Statutes, there was no error in assessing the costs of the county Court against appellee. The cross-assignment is OVerruled. None of the assignments of error is Well taken, and the judgment will be affirmed.

Powel L v. CHARco INDEPENDENT
SCHOOL DIST. et al. (No. 6035.)

(Court of Civil Appeals of Texas. San Antonio. May 15, 1918. Rehearing Denied June 12, 1918.)

1. APPEAL AND ERROR Q->759–BRIEFS-FORM. The rule in regard to briefs on appeal, requiring that each ground of error relied on shall be separately presented under an assignment of error, is not complied with where the assignments are treated as being part of the statement of facts, and not as the basis of the propositions of law, and are mixed up with the statement following a proposition which in turn follows an aSSignment. 2. STATUTES @:8% (1)–SPECIAL LAWs—NoTICE. Irrespective of Const. art. 3, § 56, providing that the Legislature shall not, “except as otherwise provided in this Constitution,” pass local or special laws regulating the affairs of school districts, Const. art. 7, § 3, authorizing formation of school districts by general or special law, without the local notice required in other cases of special legislation, and authorizing the Legislature to pass laws for the assessment and collection, of taxes in such districts, authorized the Legislature to pass, without notice, the special act creating the Charco independent school district (Special Acts 34th Leg. c. 51), which provided for election to determine necessity of borrowing money and the rate of taxation. 3. STATUTES @:96(5)—SCHOOL DISTRICTS. By Const. art. 7, § 3, as amended in 1909, the Legislature is authorized by general or special law not only to create school districts, but to provide for the assessment, and collection of taxes therein and for the management and control of their schools, and to authorize the levy and collection of additional ad valorem taxes, not only in such districts as then existed, but those thereafter formed. 4. STATUTES @->96(1)—SCHOOL DISTRICTs. Under Const. art. 7, § 3, as to school districts, the Legislature can exercise the same authority over a school district through a special law, without notice, as through a general law. 5. STATUTES @:76(1) — APPLICABILITY OF GENERAL LAW. The special act creating the Charco independent school district (Special Acts 34th Leg. c. 51), is not invalid as prescribing a notice of election for bonds different from that prescribed in Rev. St. arts. 2857, 2859. 6. SCHOOLS AND SCHOOL DISTRICTS (3:297(3)BOND ISSUES-AMOUNT. That an independent school district, which has voted a bond issue, does not have a property valuation sufficient to sustain such issue, does not make the election invalid, but the proportion of the voted bonds that can be protected by a legal tax on the present valuation of property within the School (£ may be legally issued.

Appeal from District Court, Goliad County; John M. Green, Judge.

Suit by N. R. Powell against the Charco Independent School District and Others. From a decree for defendants, plaintiff appeals. Affirmed.

Dougherty & Dougherty and G. C. Robinson, all of Beeville, and G. E. Pope, of Goliad, for appellant. Sam C. Lackey and H. W. Wallace, both of Cuero, for appellees.

FLY, C. J. Appellant instituted this suit against the Charco independent school dis

trict and J. C. Calhoun, Norman Calhoun, G. T. Powell, T. J. Reagan, and R. E. Roberts, trustees of said district, seeking to restrain appellees from issuing certain honds of Said district which had been authorized by an election of the Voters of the district. The Court, after a full hearing, denied the injunction. It was agreed between the parties that the School district was created by a special act of the Thirty-Fourth Legislature (Special Laws 1915, p. 161); that on November 27, 1916, an election for the issuance of bonds was ordered by the trustees of the school district, and an election held and the bonds voted. Bonds in the amount of $8,000 were executed and made ready to issue by the trusteeS. That election Was declared inValid by the trustees, and another election was held on May 5, 1917, resulting in the approval Of an iSSuance of bonds in the Sum of $10,000. The last Order for an election was issued on April 21, 1916, 14 days before the election was held, and 10 days notice Of the election Was given. The Order declaring the result of the election was made on May 7, 1916, and on the same date an order Was made for the issuance of the bonds, and the law complied with as to provisions for interest and sinking fund. The total property values in the district were $371,986. It seems that a tax of 25 cents On the $100 Which is provided for by law and the order Of the trustees would not be sufficient to meet the interest and provide a sinking fund for the Whole $10,000 voted, but it was also shown only so many of the bonds Would be issued and sold for which the taxes would provide interest and a sinking fund. [1] After a statement of the nature of the case and result of the trial appellant has placed in his brief his first proposition which he says is “under his first assignment of error.” However, the first assignment is not copied until after a statement, covering about 11 printed pages, is made, when it is copied just above the authorities cited. The first propositions, said to be under the secOnd and third assignments of error, are followed by the third and second assignments of error. NO Statement is found under either of the assignments. The only other assignments of error, the seventh and eighth, are placed after the propositions, the seventh being placed at the beginning of the statement following the proposition, and the eighth at the end of the Statement. In fact, all of the assignments of error are treated as being a part of the statement of the facts, and not as the basis of the propositions of law. rules which require that each ground of error relied on in a brief Shall be Separately presented under an assignment of error. It was never contemplated that assignments

This is not in compliance With the

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