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taken and adjudging that a new trial be / against the district Judge in the Court of granted.

Civil Appeals of the Fifth Supreme Judicial Immediately after the announcement by District of Texas, and in said proceeding, on the court of this order, on plaintiff's motion October 27, 1917, obtained the following judg. for a new trial, the defendant, on June 2, ment, to wit: 1917, filed a motion for a rehearing and to

“This cause came on to be heard, the applicaset aside said order, and the court directed tion of relator, H. L. Collier, for a writ of mancounsel for the respective parties to submit damus, to compel the respondent, Hon. E. B. in writing such briefs and arguments on Muse, judge of the Forty-Fourth judicial disdefendant's motion as they might desire to trict, Dallas county, to proceed to trial and present. In compliance with the court's di- judgment in the case of H. L. Collier v. Gulf, rection, counsel on both sides submitted writ. Colorado & Santa Fé Railway Company, No. ten briefs and arguments, the last being in 22277B, now pending in said court, and the behalf of plaintiff and being filed on Septem- of this court that the trial of said cause was

same being inspected, because it is the opinion ber 15, 1917.

concluded upon the granting of plaintiff's moThe court took defendant's motion, and the tion for a new trial by said court, that the exbriefs and arguments thereon, under advise- tended term of that court thereupon ended, and ment until October 5, 1917, when it granted all subsequent orders made in the case were the motion by the following order, to wit: without authority of law and void: It is there.

fore considered, adjudged, and ordered that the “The court having had under advisement the application be granted, and that the writ of motion of defendant filed herein June 2, 1917, mandamus issue, commanding the respondent to asking for a reconsideration of, and a rehearing proceed to the trial of said cause No. 22277B." on, the order of this court made June 2, 1917, sustaining plaintiff's motions for a new trial

On September 4, 1918, the Chief Justice of and granting the plaintiff a new trial and of the Supreme Court, in vacation, granted a said motions, and said motion and the argu: temporary writ of prohibition, directing the ments of counsel for plaintiff and defendant thereon having been duly considered by the district judge to desist from a new trial of court, and the court being fully advised in the the cause, which he had ordered in complipremises: Now on this date, in open court, it ance with the judgment of the Court of Civ. is ordered, adjudged, and decreed by the court il Appeals, until this proceeding could be that said defendant's motion for rehearing be heard and determined by this court. granted and that the order at this extension of

[1-4] It will aid in the correct determinaterm beretofore made on June 2, 1917, granting tion of the validity of the order of the trial plaintiff a new trial herein, be set aside, and held for naught, and plaintiff's original and court, setting aside its previous order for a amended motions for new trial being now fully new trial, to bear in mind the following thorconsidered, they and each of them are in all oughly established principles: First, that orthings overruled, to which ruling of the court dinarily the jurisdiction of a court over both the plaintiff H. L. Collier in open court ex- subject-matter and parties, once fully atcepted and gave notice of appeal to the Court of tached in a cause, continues until all issue Civil Appeals for the Fifth Supreme Judicial both of fact and of law have been finally de District sitting at Dallas. And on motion of termined. Second, that article 1726, Rev. St., plaintiff, 90 days is hereby granted to plaintiff authorizes, not the calling by the district from and after this date in which to prepare judge of a new, distinct, or independent term, and file statement of facts and bills of exception. And now by this order the said above but merely the continuance of the same term, cause being finally disposed of in this court so that during the period of extension under under the extension of the January term of this the article the court necessarily possesses court made March 31, 1917, for the completion the same power as during the original term. of the trial of said cause and all orders and 15 C. J. 886; Bank v. Withers, 6 Wheat. 106, motions incident thereto as per the terms of 5 L. Ed. 217; Keith v. Ala., 91 Ala. 2, 8 South. said order, the said extension of said January 353, 10 L. R. A. 432. And, third, that it is term of this court is now here declared closed within the power of the court, at the same on this October 5, 1917."

term, to revise or vacate any of its judgments, The court, on the same day, viz. October 5, decrees, or orders, including orders granting 1917, caused to be entered on the minutes, new trials. Blum v. Wettermark, 58 Tex. "as of April 11, 1917," a final judgment, in 125; Nowlin v. Hughes, 2 Willson, Civ. Cas. conformity with the verdict, in favor of the Ct. App. $ 313; Hume v. John B. Hood Camp plaintiff and against the defendant for $4,000, Confederate Veterans (Civ. App.) 69 S. W. with interest from April 11, 1917, at the rate 643; Watson v. Williamson, 33 Tex. Civ. of 6 per cent. per annum and all costs, for App. 269, 76 S. W. 794; Ry, Co. v. Hugen, 45 which execution was ordered to issue. Prior Tex, Civ. App. 329, 100 S. W. 1000. to October 5, 1917, no judgment had been en. It follows that, if the order vacating the tered on the verdict.

award of the new trial was made before the At the October term of the court, the plain- end of the extended term, its validity is be tiff filed a motion to set said cause for trial, yond question. The district judge extended which was overruled, and thereupon plaintiff the term "until the conclusion of said pending filed his original proceeding for mandamus trial.” The honorable Court of Civil Appeals

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determined that the “trial of said cause was / Legislature that, by an order entered during concluded upon the granting of plaintiff's mo- the term, the court may authorize a statement tion for a new trial," and that was on June of the facts to be made up in vacation, within 2, 1917.

twenty days after the adjournment of the term.' The language of article 1726 has not bere such order, no statement of facts can be made

Laws 28th Leg. 32. It is true that, without tofore been construed by this court; but we after an adjournment of the term of the court think that the words “conclusion of such at which the trial is concluded; but the phrase, pending trial," as used in said article, can- 'after the trial,' denoting the time when the not be properly given such a restricted mean- statement may be made, is broad enough to eming as is required to support the decision of brace the entry of the judgment nunc pro tunc the Court of Civil Appeals.

as a part of the trial, justifying the court in [5] Giving the word "trial” its ordinary making and certifying to the statement of facts

Hill v. and accepted meaning in law of “the judicial after judgment was actually entered.

State, 41 Tex. 255; Sabine & E. T. Ry. Co. investigation and determination of the issues between parties" (Century Dictionary: 28 A. Ind. 1." Palmo y. Slayden & Co., 100 Tex.

v. Joachimi, 58 Tex. 454; Jenks v. State, 39 & E. Enc. of Law, 636), it would just as much 15, 92 S. W. 797. include the action of the court on a motion, presented immediately after an order had The case of Hill v. State, 41 Tex. 255, debeen rendered granting a new trial, to set cides that, aside such order, as it would include the ac- "The trial may well be held incomplete untion of the court in granting a new trial. til all the issues of law as well as of fact have The court possessed the same control over been determined and the final judgment enthe order as over the final judgment, and tered." there is no essential difference in the limita

The Court of Appeals had asked the questions imposed in each case, by the expiration

tion: of the term, on the exercise of such control. The duty of the court to correct error or in

"Does the trial embrace the final judgment ?". justice in its previous action was the same, And had answered: “We think so, unquestionwhether the error or injustice inhered in the final judgment has been entered and the sen

ably. The trial has not terminated until the final judgment, or in steps leading thereto, tence pronounced.” Mapes v. State, 13 Tex. or in the award of the new trial.

App. 91. The decisions of this court furnish no warrant for holding that the trial of this case

The Supreme Court of California likewise was concluded on June 2, 1917. Not only did concluded that, the presiding judge consent to consider a "Until the decision itself has been entered in motion for rehearing immediately after an- the minutes, or reduced to writing by the judge nouncing the award of the new trial, and not and signed by him and filed with the clerk, the only was the motion for rehearing forthwith case has not been tried to a legal intent." Hastand on the same day filed, but the record ings v. Hastings, 31 Cal. 98. shows that no final judgment on the verdict

[6] Giving the order on defendant's motion was entered until the 5th day of October, the benefit of the presumption always in1917. Had it not been decided, it would seem dulged, in the absence of anything to the conclear that the district court could not intend trary, that it was regularly and lawfully to close an extension of a term ordered for made, we would be required to presume, if the express purpose of making “a full and necessary to uphold same, that, being dated complete conclusion" of a pending trial be the same day as the order for the entry of fore the entry of final judgment. However, the judgment, it was rendered prior thereto. when the question was presented to this court winder v. Winder, 86 Neb. 496, 497, 125 N. as to whether a trial had been concluded pri- / w. 1095; Skinner v. Roberts, 92 Ga. 366, 17 or to the entry nunc pro tunc of final judg. S. E. 353; Forrer v. Coffman, 64 Va. 878; ment, in order to determine whether a state Gammage v. Moore, 42 Tex. 170. And we ment of facts had been filed within the pre could not say that, being rendered prior to scribed time after th> adjournment of the the entry of final judgment, it failed to anteterm at which the trial was had, it was an- date the full and complete conclusion of the swered in the negative. The opinion, by

trial. Until the trial was fully and completeChief Justice Brown, declares:

ly concluded, the extension of the term had “Plaintiff in error contends that the trial not expired by the unequivocal terms of the court had no authority, after the adjournment order. of the term at which the trial was had, to [7] We conclude that, on the facts shown make up a statement of facts proved at the by this record, the extension of the January, hearing. Article 1379, Revised Statutes, con 1917, term had not expired when the court, tains this provision: ‘After the trial of any

on October 5, 1917, vacated the order for a cause, either party may make out a written statement of the facts given in evidence on the new trial, and hence the final judgment on trial, and submit the same to the opposite par- the verdict of the jury is in full force and efty, or his attorney, for inspection,' etc.

It is fect. also provided by an act of the Twenty-Eighth [8] And we have no doubt that the defend

ant is entitled to enforce by mandamus his , writ, by reason of a contrary opinion of the clear legal right to have the reinstated judg- Court of Civil Appeals. While the acts of ment respected and enforced. It is no sound those courts, under the authority conferred objection to the award of the mandamus that by article 1595 are entitled to, and will al. the defendant might finally secure a review ways receive, our utmost consideration, they of an adverse judgment following a retrial. cannot control the exercise of this court's by means of appeal to the Court of Civil Ap original jurisdiction; and, of course, when a peals and writ of error to the Supreme Court. judgment is pronounced in the exercise of For it has been the law of Texas since that jurisdiction, all writs necessary for its Bradley v. McCrabb, Dallam, 507, that the enforcement may be issued. Pickle v. Mowrit of mandamus “will not only issue, in Call, 86 Tex. 212, 24 S. W. 265; Hovey v. cases where the party having a specific legal Shepherd, 105 Tex. 237, 147 S. W. 224. right has no otuer legal operative remedy, It is therefore ordered that the clerk of this but, where the other modes of redress are court issue the writ of mandamus, directed inadequate or tedious, the writ will be to the respondent, commanding him to enawarded.” Not only would the remedy to force the final judgment heretofore entered defendant of appeal and writ of error, after on the minutes of the district court of Dallas another trial, be manifestly tedious, but such county, Forty-Fourth judicial district, in remedy would also be inadequate; for it is cause No. 22277B, styled H. L Collier v. the very essence of defendant's right that it is Gulf, Colorado & Santa Fé Railway Company, entitled not to have to respond further to and to proceed no further with a new trial plaintiff's cause of action than by payment of said cause so long as said judgment reof his judgment. Justice Ramsey, in speak- mains unreversed. ing for the court in Wright v. Swayne, 104 Tex. 444, 140 S. W. 222, Ann. Cas. 1914B, 288, said: "If the court should willfully refuse to ex

DAUGHERTY et al. v. WILES. ecute its own judgments according to their true

(No. 14-2590.) intent and effect, we would have the authority and it would be our duty to direct it to proceed to execute the judgment and sentence of the Commission of Appeals of Texas, Section A. law."

Jan. 15, 1919.) But it is insisted that since article 1595, 1. TRIAL Om 139(1)-DIRECTION OF VERDICT Rev. St., confers on our Courts of Civil Ap

-SUFFICIENCY OF EVIDENCE. peals, or any judge thereof, in vacation, origi- To authorize the court to take a question of nal jurisdiction to compel a district judge fact from the jury, the evidence must be of to proceed to trial in any cause, and since in such character that there is no room for ordithe exercise of that jurisdiction a mandamus nary minds to differ as to the conclusions to be

drawn from it. has been awarded by the Court of Civil Appeals of the Fifth District commanding 2. PRINCIPAL AND AGENT w 23(2)—ESTABthe district judge to try this cause, we are

LISHMENT OF RELATION-CIRCUMSTANTIAL bound by that award.

EVIDENCE. [9] Section 3 of article 5 of the Constitu- such as the relation of the parties and their

Agency may be established by circumstances tion authorized the Legislature to "confer conduct with reference to the subject-matter of original jurisdiction on the Supreme Court, the alleged contract. to issue writs of quo warranto and mandamus in such cases as may be specified, except 3. PRINCIPAL AND AGENT Om 22(3) EVIas against the Governor of the state.” Un- DENCE-ACTS OF AGENT. der that authority the Legislature has con- Agency cannot be established by proof of ferred on this court original jurisdiction to the acts of the agent, unless it appears that the issue writs of mandamus, “agreeable to the principal knew of, or assented to them, but principles of Jaw, regulating such writs that the principal had such knowledge and

where the acts justified a reasonable inference against any district judge or Court of Civil would not have permitted them if unauthorized, Appeals or judge of the Court of Civil Ap- the acts are competent. peals, or officer of the state government, except the Governor of the state." Vernon's

ESTAB

4. PRINCIPAL AND AGENT 24 Ann. Civ. St. Supp. 1918, art. 1526, Rev. St.

LISHMENT OF RELATION-QUESTIONS OF LAW It is inconceivable, in view of the express

AND FACT. language of this article and the respective termine whether under an ascertained state of

It is within the province of the court to dejurisdictions of the Supreme Court and of facts an agency exists, but it is for the jury the Courts of Civil Appeals, that it was ever

to determine the existence of facts sufficient to intended by the Legislature that this court constitute agency. should be precluded from granting full relief to one whom it found entitled to the writ of Error to Court of Civil Appeals, Fourth mandamus, under the law governing that | Supreme Judicial District.

.

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

Consolidated actions by J. H. Wiles | cial issues, including the issue of agency as against L. H. Bradford and another and made by the pleadings. The jury being unagainst B. M. Daugherty and another, re able to agree upon this issue, the court perspectively. Judgment for plaintiff was af- emptorily instructed them to find that nei. firmed by the Court of Civil Appeals (156 S. ther Bradford nor Henry was the agent of W. 1089), and defendants Daugherty and an Wiles in the sale to Daugherty, and withother bring error. Reversed and remanded, drew from their consideration all questions as recommended by Commission of Appeals. bearing upon the issue of fraud, misrepre0, M. Fitzhugh and P. H. Swearingen, both

sentations, and failure of consideration. Up

on the answers of the jury to the other isof San Antonio, for plaintiffs in error. W. L. Schlesinger and F. H. Booth, both

sues submitted the court rendered judgment

against plaintiffs in error, which was afof San Antonio, for defendants in error.

firmed by the Court of Civil Appeals. 156 S.

W. 1089. STRONG, J. The plaintiff, Wiles, institut

The main question for determination is ed two suits, one being against L. H. Brad- whether or not the trial court erred in withford and Patrick Henry on two notes pay

drawing the issue of agency from the jury. able to Wiles, aggregating the sum of $1,275,

[1, 2] In order to authorize the court to and the other being against plaintiffs in er- take a question of fact from the jury, the ror, Daugherty and Hancock, on two notes

evidence must be of such character that there executed by them, payable to L. H. Bradford

is no room for ordinary minds to differ as and Patrick Henry, and being otherwise con

to the conclusion to be drawn from it. Inditioned as the notes involved in the other

surance Co. v. Kemendo, 94 Texas, 367, 61 suit, it being alleged by Wiles that they were

S. W. 1102. Measured by this rule, we are delivered to him by Bradford and Henry

of opinion, after a careful examination of as collateral to secure the payment of their

the record, that there is evidence supporting notes. The suits were consolidated.

the theory of plaintiffs in error that BradBradford and Henry answered by general

ford was the agent of Wiles in the sale of his demurrer and general denial, and Henry add

interest in the furniture business to Daughed by way of special answer that all four of

erty. It is well settled that agency may be the notes sued upon were executed at the

established by circumstances, such as the resame time and for the same consideration;

lation of the parties and their conduct with that the notes he signed were in reality the

reference to the subject-matter of the alleged collateral notes to secure the Daugherty and

contract. Without undertaking to set out in Hancock notes; that the consideration for

detail the evidence touching this issue, it is all the notes passed direct from Wiles to

disclosed by the record that at the time of the Daugherty, who bought an interest which

negotiations Wiles, Bradford, and Henry Wiles owned in the San Antonio Furniture

were partners. Bradford and Henry lived in Company. Plaintiffs in error, Daugherty and Hancock, in addition to the general denial,

San Antonio, Tex., and had complete control answered in substance that the notes executed

of the partnership business. Bradford was by them were given as a part of the consid

general manager, and was recognized by eration for the purchase by Daugherty from

Wiles as his agent in all things connected Wiles of a one-half interest in what was

with the business. Neither Daugherty nor known as the San Antonio Furniture Com

Hancock personally knew Wiles. Prior to pany; that the Wiles interest in the business

the beginning of the negotiations of the purhad been offered for sale to Daugherty by

chase of the Wiles' interest of Daugherty Bradford, all the negotiations for said sale Bradford requested and received permission being conducted through Bradford, or Brad

from Wiles to sell Wiles' interest in the busiford and Henry as the agents of Wiles. It ness to some person satisfactory to him, was further alleged that in the negotiations

Bradford. After receiving this permission, leading up to the sale Bradford and Henry

Bradford offered to sell the Wiles' interest to made certain misrepresentations concerning

Daugherty, and communicated to Wiles the said business, which induced Daugherty to

information that he had found a prospective purchase the Wiles interest in said business, purchaser in the person of Daugherty, who and that the representations so made were would pay $1,000 cash and execute notes due untrue, false, and fraudulent; thereby the in one and two years for $1,275, with Hanconsideration of the notes had failed. Han- cock as surety. Wiles answered this comcock further answered that he was only a munication, agreeing to the sale, provided surety on the notes, which fact appeared on Bradford and Henry would indorse the notes. the face of the notes and was known to all Thereafter a deal was closed by which parties, and that Wiles had granted an ex- | Daugherty acquired the Wiles' interest on tension on the principal notes without the knowledge or consent of Hancock, whose [3, 4] True, both Wiles and Bradford deny notes were only collateral, and that he was Bradford's agency in the transaction, but thereby relieved from further liability. this is not conclusive. In many cases, agen

The case was submitted to the jury on specy arises, not from the use of express lan

s stated

guage, nor from the existence of a well-defin- / ages for its negligent burning, but if there was ed relation, but from the general conduct of no market value, then recovery should be for the parties. If relations exist which consti- the reasonable value of the grass for the purtute an agency, the agency exists, whether pose for which it was being used or for which

intended. the parties so understand it or not.

As a general rule, agency cannot be established by 3. EVIDENCE Cw113(11)-MARKET VALUE OF proof of the acts of the alleged agent, in the

GRASS-RENTAL FOR PASTURE. absence of evidence to show the principal's The rent paid by plaintiff for pasture could knowledge of such acts or his assent to them, not determine the market value of grass de. but where the acts are of such character as stroyed by fire, but, if there was no market to justify a reasonable inference that the value, the rent might be a circumstance to be principal had knowledge of them, and would considered in arriving at the value of the grass

for the purpose for which it was intended. not have permitted them, if unauthorized, the acts themselves are competent to show 4. APPEAL AND ERROR @w1064(1)—ERBONEOUS agency. It is within the province of the

INSTRUCTION-REVERSIBLE ERBOR, court to determine whether under an ascer.

In an action for negligent burning of grass tained state of facts an agency exists, but it in a pasture, erroneously instructing that plainis for the jury to determine the existence of tiff was entitled to recover the cost of feed facts sufficient to constitute agency.

for his cattle and the expense necessary in feed. Brad

ing them was reversible error. street v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. There is evi

Error to Court of Civil Appeals of Seventh dence in the record that Bradford made

Supreme Judicial District. fraudulent representations to Daugherty in the sale, which were relied upon by Daugh- Action by C. T. Word against the Chicago, erty; and we think this issue, together with Rock Island & Gulf Railway Company. the issue of Bradford's agency, should have Judgment for plaintiff wis affirmed by Court been submitted to the jury.

of Civil Appeals (158 S. W. 561), and defendIt is unnecessary to determine whether or ant brings error. Reversed and remanded not Hancock was released, by the extension for new trial. of the time of payment of the Bradford and Henry notes, without his consent, as this is

N. H. Lassiter, of Ft. Worth, and Gustavus sue will probably be more fully developed up & Jackson, of Amarillo, for plaintiff in error. on another trial.

W. Boyce, of Amarillo, for defendant in

error. We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause re

SADLER, J. The plaintiffs in error call manded for another trial.

in question the correctness of the holding of

the honorable Court of Civil Appeals in apPHILLIPS, C. J. The judgment recom- proving the measure of damages as submitted mended by the Commission of Appeals is in the charge of the court. Word obtained adopted, and will be entered as the judgment judgment in the district court against the Chiof the Supreme Court. The case is correctly cago, Rock Island & Gulf Railway Company remanded upon the ground stated by the for the sum of $918, as damages resulting Commission in its opinion.

from the burning of grass on the 22d day of February, 1909, in the pasture leased by him. In addition to the other allegations in the petition, it was alleged that this particular

pasture had been held in reserve for winter CHICAGO, R. I. & G. RY. CO. v. WORD. pasturage, and that 500 head of cattle were (No. 22–2640.)

placed there a short time prior to the fire.

It was charged that the grass was sufficient (Commission of Appeals of Texas, Section B. to carry the cattle through the winter withJan. 15, 1919.)

out feed, and that on account of its destruc1. DAMAGES m112--MEASUREDESTRUCTION tion it became necessary to purchase cotton OF GRASS.

seed cake and to incur expenses in feeding In action for the negligent burning of grass and caring for the cattle. in a pasture, a charge, permitting recovery for On the measure of damages, the court the cost of feed and expenses of caring for cat- charged the jury as follows: tle, does not furnish a certain rule of damages, but the correct rule is to permit recovery for the

"If, under the foregoing instructions, you find value of the grass at the date of its destruc- for the plaintiff, and you further find that as tion.

a proximate result of the burning of the grass

in plaintiff's pasture, it became and was rea2. DAMAGES 112–MEASURE-DESTRUCTION sonably necessary for him to furnish feed, and OF GRASS.

that he did furnish feed to the cattle owned The market value of grass for the purpose by him in said pasture in order to avoid greater for which it was used is the measure of dam- / loss and damage thereto, and in order to winter

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

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