and when appellants came into court and offered to pay the note, less the interest that had been waived, the suit was changed to one of trespass to try title, and, although the uncontradicted evidence showed an ability and willingness to pay the note, a peremptory instruction was given to the jury to rescind the sale and give the land to appellee. There was no attempt to take advantage of the delay in collecting the note by pleas of limitation, or in any other way; but the same plea was interposed that would have been offered had the suit been brought in 1899, and that is that the payment of interest had been released by the payee of the note, and nothing was due but the principal, which appellants tendered in payment of the note. was done to impede or delay payment of the note, unless it was such to ask for a construction of the instrument that Mrs. Flores gave Cadena in regard to the interest. Appellants were not in default in payment of the note; it had never been presented or payment demanded. The negligence and default existed on the part of Mrs. Flores, the owner and holder of the note. Nothing Appellants had the right, under the facts, to have the equities adjusted between them and the representative of the vendor of the land. As said by the Supreme Court: "We understand every decision on the subject to recognize the right of the vendee to assert equities whenever the suit of the vendor is for a rescission of the contract. On the other hand, we do not understand that it was intended to decide, in the cases where the vendor brought suit simply to try title and for possession, that equities in favor of the vendee entitling him to relief would not be heard. * * We can see no good reason why the right of the vendee to equitable relief when he is sued for the purchase money, or for the land itself, should at all depend upon the character or the form of plaintiff's suit. Whether or not he is entitled to any equitable relief will be a proper subject of inquiry in every case." Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290. The long delay of the vendor in asking for rescission alone would open the way for the adjustment of any equities in favor of appellants. It is a rule, well established in the decisions herein before cited, that when the vendee is willing to perform the contract, and the vendor has received a part of the consideration, or has delayed for unreasonable time to ask for a rescission, or when for any reason it would be inequitable for the vendor to recover possession of the land, a court of equity will not permit him to do so. The rule as to delay was applied in Moore v. Brown, 46 Tex Civ. App. 523, 103 S. W. 242. In that case it was said: "These facts show that the appellant treated the contract. as subsisting up to the institution of this suit, seven years from the time of the maturity of the first note given in payment of the land. by appellant in reference to a rescission." In the case now in this court the contract was recognized as existing, and the suit instituted thereon nine years after the note became due, and it was by an amendment that the suit for the land was inaugurated. There was no plea or action on the part of appellants that could have justified a change in the nature of the suit. There was never at any time any desire evinced on the part of appellants to defeat recovery on the note, as construed by them in the light of the vendor's release of the interest. The tender made by appellants was sufficient, although no money was paid into court. They offered to do equity and that was sufficient. Spann v. Sterns, 18 Tex. 556; Gardner v. Randell, 70 Tex. 453, 7 S. W. 781. We do not understand that in order to obtain equities the vendee must agree to pay what is claimed by the vendor, regardless of the justice of the claim. For instance, if there had been a payment on the purchase-money note, which was the basis of the suit, we do not think, because the vendor desired to collect the amount of the payment again, that the vendee by insisting on being credited with the payment would lose the right to his equities. For the same reason, if appellants believed that there had been a release of the interest, they would not be denied their equities because of an unwillingness to pay the interest. They were not called upon to tender the attorney's fees because they were not prayed for by appellee. It is admitted by appellee in his amended petition that the instrument executed by Mrs. Flores to Antonio F. Cadena remitted the interest on the note up to the time it was due, on May 17, 1899. It has been held in this state that, where a note expressly provides that it shall carry no interest, it merely refers to the time intervening between its execution and the time it is due; and, unless there is express contract in plain terms that no interest shall be paid after maturity, interest will run from that date at the legal rate. If there is any doubt as to the construction of the provision in a contract as to interest, the doubt will be resolved in favor of interest. Roberts v. Smith, 64 Tex. 94, 53 Am. Rep. 744. It is with some degree of reluctance that the writer of this opinion subscribes to the ruling in the decision cited that the words "without interest" in a note have reference merely to the time before it becomes due, and that from that time the note should bear interest at the legal rate. We have been able to find no authority supporting the decision. Randolph in his work on Commercial Paper, § 1713, states the same proposition, giving as authority the Texas case. Under that decision, "without interest" in a promissory note means the same as "interest from maturity." The court held that they had no effect whatever, and that the note was in the same condition as though must be concluded that, if the words "with- of Cadena and O'Farrell, nor to disclose her out interest" in a note mean nothing, or only that no interest shall be charged until after maturity, the instrument given by Mrs. Flores to Cadena as to interest referred only to interest for the two years before the note was due. There is nothing in the terms of that instrument stronger or more comprehensive than the words "without interest." In view of the decision in Roberts v. Smith, we hold that the interest was only remitted to the maturity of the note, and that appellants are liable for interest at 6 per cent. per annum from May 17, 1899. The construction that Mrs. Cadena and O'Farrell put upon the instrument executed by Mrs. Flores could not have any effect in indicating the intention of the parties to it. It was not shown that Mrs. Flores ever construed the instrument as a remission of all the interest. The judgment of the lower court will be reversed, and, there being no conflict in the testimony, judgment is here rendered that appellee, as administrator of the estate of Juana F. Montes de Flores, do have and recover of F. X. Ball and Mary Fest the sum of $3,000, with interest at 6 per cent. per annum from May 17, 1899, together with all costs of the lower court, and that the vendor's lien be foreclosed on the 579 acres of land described in the petition, and appellants recover of appellee all costs incurred by reason of this appeal. On Motions for Rehearing. The party bound to Mrs. Flores by the note was Cadena, the maker thereof, and to him alone she could look for payment of the note. Her contract was with him, and he alone could complain of her absence from the state and failure to demand the money due on the note. She may have demanded payment of the note from Cadena and his executrix many times, so far as the record discloses. She was not compelled to demand payment from any one but the maker, for he was primarily liable to her. Tiedeman, Comm. Paper, § 313. The vendor's lien having been expressly reserved by Mrs. Flores, the subsequent purchasers were not even necessary parties to a suit on the note and for fore whereabouts to them. Her dealings were with Cadena, and to him alone she had the right to look for payment of her note. There was no attempt made to show that Cadena, or any one representing him, had ever had the money ready to make payment of the note on the day and at the place designated therein. The relation of creditor and debtor did not exist between appellants and Mrs. Flores, and they cannot invoke any rule that may exist as to a forfeiture of interest by a creditor who absents himself from the country and leaves no representative to whom payment could be made. The person to whom appellants should have offered to pay was O'Farrell, and not Mrs. Flores. It must be assumed that, when the note of Cadena to Mrs. Flores was executed, they contemplated that the note should be paid at maturity, and with that in view they could not have contracted as to the nonpayment of interest except as to the time up to the maturity of the note. We cannot proceed on the hypothesis that the contract was made with a view that the contract as to time of payment would be breached by the maker of the note. It is the contention of appellee in his motion for rehearing that the transcript fails to show the contents of the original petition, and therefore there was no basis for the allusion to such contents in the opinion of this court. The contents of that petition are stated in the brief of appellants, and the statement was not disputed or denied in the brief of appellee. He merely states that they are immaterial, and there is a virtual admission that the contents of the original petition were properly stated. That statement was made upon the professional responsibility of attorneys for appellants; and, in the absence of any denial, this court will accept it as being correct. There is no merit in appellee's motion for rehearing. The motions for rehearing are overruled. SARRO v. BELLI (Court of Civil Appeals of Texas. Feb. 9, 1910. Rehearing Denied March 16, 1910.) 1. APPEAL AND ERROR (§ 750*)—ASSIGNMENTS OF ERROR-QUESTIONS RAISED. giving of the peremptory charge, error in exUnder an assignment alleging error in the cluding testimony cannot be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3077; Dec. Dig. § 750.*] re of the lien. Ufford v. Wells, 52 Tex. 612; Foster v. Powers, 64 Tex. 247; Cattle Co. v. Boon, 73 Tex. 548, 11 S. W. 544; Bradford v. Knowles, 86 Tex. 505, 25 S. W. 1117; Thompson v. Robinson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Rep. 843; Gardener v. Griffith, 93 Tex. 355, 55 S. W. 314. Appellants should have tendered the amount of the purchase money to their vendor, and have demanded a release of the vendor's lien from him. He was accessible to them, and they cannot escape full payment of the note by a plea that the original vendor was in France. Mrs. Flores was under no obligation to demand payment of her note from subvendees 2. TRESPASS TO TRY TITLE (§ 53*)-DECREE FOR INTEREST IN LAND-RIGHT TO RENTS AND PROFITS AS INCIDENT Where defendant in trespass to try title did not complain of a decree determining title to half the lot with improvements to be in plaintiff, in so far as it awarded title to half the property, he could not complain of that part For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes awarding plaintiff a recovery for one-half the ourselves, if we gave effect to this proposirental value of the property. [Ed. Note. For other cases, see Trespass to Try Title, Cent. Dig. §§ 85, 86; Dec. Dig. § 53.*] tion. The second proposition is "that, defendant having testified that the real estate in controversy was bought and paid for by himself and all improvements erected thereon by his own skill, labor, and capital (which testimony was not controverted by plaintiff), the plaintiff was therefore not entitled to any part of the rents and profits of said property, and the trial court in instructing the jury to find for plaintiff one-half of the rental value of the said property and in receiving the verdict, finding for plaintiff $140 for rent and in rendering judgment thereon, committed affirmative error." The above proposition does not complain of the decree in so far as it adjudicates to plaintiff the title to an undivided half of the property. There is nothing in this brief, so presented as to enable us to consider it, which authorizes us to disturb the judgment concerning the title, and the property involved in the adjudication of the title necessarily includes the improvements. The proposition merely complains of the judgment awarding plaintiff a recovery of one-half the rental value of the property. If plaintiff acquired title to an undivided half of the lot and improvements by his deed, it follows he is entitled to half the rental value of same during the time defendant has appropriated the rents, to the exclusion of plaintiff, as all the evidenceshows he has done since plaintiff acquired Appeal from District Court, Bexar County; J. L. Camp, Judge. Action by Bascom Bell against Joseph Sarro. Judgment for plaintiff, and defendant appeals. Affirmed. J. D. Childs, for appellant. Clark & Bliss, his interest. The contention is based on the for appellee. testimony that the improvements were placed on the lot back about 1891 by defendant with his own means, and it may be stated that it was these improvements which gave the place its rental value. But we do not see how we can give defendant any relief based on his having erected the improvements, when we are confronted in the same connection with a judgment which we cannot revise, and which determines the title to half of the lot with improvements to be in plaintiff. Appellant's first assignment of error is that the court erred in peremptorily instructing the jury as was done. The first proposition under this assignment is that the court should not have excluded certain testimony of three witnesses. This proposition cannot be considered under the assignment of error. The assignment alleges error in the giving of the peremptory charge, which means that on the testimony introduced the charge was improper. If appellant desired to present errors committed by the court in excluding certain testimony, the only way to present such matter for revision was to complain of them by assignments. We would be going out of our way and committing error The second and third assignments of error complain of the court's permitting S. C. Eldridge to testify as to whether or not the appellant, Joseph Sarro, understood a deposition given by him ex parte; the objections being (1) that Mr. Eldridge, acting as Sarro's attorney at the time, could not testify to confidential communications; and (2) that his testimony consisted of conclusions. Appellant Sarro, after his ex parte deposition was read, testified in substance: That he did not understand it all, and that they (referring among others to Eldridge, his attorney, just said sign. That the facts in the deposition are not true. They made him sign. Mr. Eldridge told him to sign it, and he signed it. That he afterwards discharged Eldridge and got another lawyer, etc. There was nothing in the nature of a confidential com 3. WITNESSES (§ 198*)-PRIVILEGED COMMUNICATIONS-ATTORNEY AND CLIENT. Where defendant, after his ex parte deposition was read, testified that he did not understand it at all, and that he signed it at the instance of one E., his then attorney, whom he afterwards discharged, testimony of E. as to whether defendant understood the deposition was not inadmissible as involving a confidential communication. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. $ 753; Dec. Dig. § 198.*] 4. EVIDENCE (§ 471*)-CONCLUSIONS. Testimony of a witness as to whether a party signing a deposition understood the same was not objectionable as a conclusion. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2161; Dec. Dig. § 471.*] 5. TRESPASS TO TRY TITLE (§ 59*)—IMPROVEMENTS-PLEADING. If defendant in trespass to try title was equitably entitled to an allowance for improvements and the rents growing out of the same, he should have made claim therefor in his pleading, and, failing to do so, cannot receive such allowance. [Ed. Note.-For other cases, see Trespass to Try Title, Cent. Dig. § 90; Dec. Dig. § 59.*] JAMES, C. J. Appellee brought this action by a petition in trespass to try title for the title to an undivided half of a lot in the city of San Antonio, and prayed, upon appropriate allegations, for judgment for such interest in the premises, for partition, and for rents and damages, etc. Defendant's answer was not guilty. The court directed the jury to retain a verdict for plaintiff for an undivided half interest in the property and for one half of the reasonable rental value thereof from May, 14, 1906, to the time of trial. munication involved in the testimony of El- attempt made to procure a legal separation. RAY v. CURRY. (Court of Civil Appeals of Texas. Feb. 26, tachment lien. 1910.) In addition, if defendant was equitably entitled to an allowance for the improvements, and the rents growing out of the same, this is a matter that should have been claimed by his pleading. Affirmed. EXEMPTIONS (§ 16*)-HEAD OF A FAMILY. Within the exemption law, a married man is the head of a family, though he is living apart from his wife, and has attempted to secure a divorce; none having been obtained. [Ed. Note. For other cases, see Exemptions, Cent. Dig. § 18; Dec. Dig. § 16.*] Appeal from Johnson County Court; J. B. Haynes, Judge. Action by J. S. Curry against W. H. H. Ray. Judgment for plaintiff. Defendant appeals. Reversed and remanded. Phillips & Bledsoe, for appellant. Ryburn, for appellee. RAINEY, C. J. J. S. Curry sued W. H. H. Ray to recover the sum of $26, and caused a writ of attachment to be issued and levied on one cow and calf, the property of Ray. Ray pleaded that he was the head of a family, and that said cow and calf were exempt from forced sale, and of the value of $150, and reconvened for damages. A trial resulted in favor of plaintiff for the debt and foreclosure of the attachment lien, etc. From this judg The judgment is reversed and cause remanded. LONE STAR BREWING CO. v. SOLCHER et al. (Court of Civil Appeal of Texas. Feb. 2, 1910. On Motion for Rehearing, March 16, 1910.) 1. MASTER AND SERVANT (§ 125*)-INJURIES TO SERVANT DANGEROUS APPLIANCES Actual knowledge is not necessary to fix [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*] 2. MASTER AND SERVANT (§ 125*)-INJURIES If it is notorious that an appliance is de- by the master, he is charged with knowledge of it. ment, Ray appeals. The facts show that Ray was a married 3. MASTER AND SERVANT (§ 265*)-INJURIES Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 4. MASTER AND SERVANT (8 217*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. A servant who had for seven months been No controversy is made that Ray is not liable for the amount of the judgment for the debt claimed. But it is urged that he was the head of a family, and that the cow and calf were exempt from the levy of the attachment. This contention we think should be sustained. Having a wife from whom he had not been legally divorced, the law holds him liable for her contracts made for the necessaries of support and maintenance. All property acquired by eith during their separation is community property, and they occupy the relation of husband and wife under the law, as though they were living together and no using a passageway and was thoroughly ac- passageway. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*] [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. § 217.*] 5. MASTER AND SERVANT (§ 265*)-INJURIES or 8 inches in height. TO SERVANT-Burden OF PROOF. In an action for injuries to a servant through stumbling over a box in a passageway and having his hand caught in the machinery, plaintiff had the burden of proving when the box was placed in the passageway, and by whom it was put there. It was a cloudy day. The passageway was lighted by windows with yellow glass. The injured party swore that it was "pretty dark" on that day. It was not shown when the box was put where it was, or who put it there. The hat was in the place where young Solcher was in the habit of placing it. The passageway was about 3 feet wide, and one in going from where Solcher worked to where he kept his hat had to stoop to get under the belt. He had already placed his hat on his head when In an action for injuries to a servant through stumbling over a box in a passageway he fell over the box. He stated that boxes and having his hand caught in the machinery, of that character were kept to put bottles evidence held insufficient to show negligence on and caps and broken glass in, and "they had defendant's part. them piled around there." It was shown that only two employés had charge of mov [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 877-908; Dec. Dig. § 265.*] 6. MASTER AND SERVANT (§ 278*)-INJURIES TO SERVANT-Negligence—SUFFICIENCY OF EVIDENCE. ing the kind of boxes described by the injured party. There was no evidence tending to show how long the box had been in the position occupied by it when young Solcher stumbled over it, nor was it shown that appellant or any of its vice principals knew that the box had been left there. The testimony of young Solcher as to it being a cloudy day when he was hurt, and that the passageway was insufficiently lighted, was [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 954-972; Dec. Dig. 8 278.*] On Rehearing. 7. MASTER AND SERVANT (§ 265*)-INJURIES ΤΟ SERVANT DANGEROUS PREMISES KNOWLEDGE OF MASTER-Burden of PROOF. In an action for injuries to a servant through stumbling over a box in a passageway and having his hand caught in the machinery, plaintiff had the burden of showing defendant's knowledge, actual or constructive, of the dangerous conditions causing the injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 877-908; Dec. Dig. § sharply contradicted by all of the witnesses. 265.*] They swore that the building was well lighted by 28 windows and a skylight, and from the records of the United States Weather Bureau it appeared that the day was practically clear, a few cumulus clouds in the forenoon and cirrus clouds in the afternoon floating over the sky. The day was recorded clear. Appeal from District Court, Bexar County; J. L. Camp, Judge. Action by Henry Solcher, Sr., and others, against the Lone Star Brewing Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. The evidence of appellees showed that on July 16, 1907, Henry Solcher, Jr., then about 16 years old, was working in the bottling department of appellant's brewery, and had been working there for six or seven months. He was a bottle filler. On the day in question, at noon, he went behind the steam tank to get his hat, and, in order to get it, be passed along a passage between the steam tank and the wall. When he reached the place where he had left the hat, he hung up a sack he had, and as he turned around stumbled over a box, and as he stumbled his left hand and arm were caught in a moving belt and badly injured. The box was of tin, about 22 feet long, 2 feet wide, and 6 The basis of all negligence is knowledge, because it is the failure to exercise ordinary care, and a want of care can only be manifested by a failure to act carefully and prujudg-dently with a full knowledge of the surrounding circumstances, or to act prudently when by proper inquiry a full understanding of the surroundings could have been obtained. As applied to the master, the law demands that he compensate an injured servant who is injured through the dangerous condition of instrumentalities used by him when he knows or should know their dangerous condition. Actual knowledge is not necessary to fix the liability of the master, but he will be liable if he has failed to exercise due care in ascertaining the condition of affairs that brings about the injury to the servant. As said by Judge Cooley in the case of Davis v. Railway, 20 Mich. 124 (4 Am. Rep. 364): "Ignorance itself is negligence in a case in which any proper inquiry would have obtained the necessary information, and where the duty to inquire was plainly imperative." If the dangers are such as ordinarily accompany the peculiar business, knowledge will be imputed to him of the perils arising therefrom. If it is notorious that an appliance is defective or unfit for use, knowledge of its condition will be imputed, and, where a danger Wm. Aubrey and Onion & Henry, for appellant. T. J. Newton and Will A. Morriss, for appellees. FLY, J. This is an appeal from a ment for $6,000, rendered in a suit instituted by Henry Solcher, Sr., for himself and as next friend of his minor son, Henry Solcher, Jr., for damages arising from personal injuries inflicted on the latter through the negligence of appellant. The cause was tried by jury, the verdict apportioning $1,000 to the elder and $5,000 to the younger Solcher. |