taken and adjudging that a new trial be against the district Judge in the Court of granted. Immediately after the announcement by the court of this order, on plaintiff's motion for a new trial, the defendant, on June 2, 1917, filed a motion for a rehearing and to set aside said order, and the court directed counsel for the respective parties to submit in writing such briefs and arguments on defendant's motion as they might desire to present. In compliance with the court's direction, counsel on both sides submitted written briefs and arguments, the last being in behalf of plaintiff and being filed on September 15, 1917. The court took defendant's motion, and the briefs and arguments thereon, under advisement until October 5, 1917, when it granted the motion by the following order, to wit: Civil Appeals of the Fifth Supreme Judicial "This cause came on to be heard, the application of relator, H. L. Collier, for a writ of mandamus, to compel the respondent, Hon. E. B. Muse, judge of the Forty-Fourth judicial district, Dallas county, to proceed to trial and judgment in the case of H. L. Collier v. Gulf, Colorado & Santa Fé Railway Company, No. 22277B, now pending in said court, and the of this court that the trial of said cause was same being inspected, because it is the opinion concluded upon the granting of plaintiff's motion for a new trial by said court, that the extended term of that court thereupon ended, and all subsequent orders made in the case were without authority of law and void: It is therefore considered, adjudged, and ordered that the application be granted, and that the writ of mandamus issue, commanding the respondent to proceed to the trial of said cause No. 22277B.” On September 4, 1918, the Chief Justice of the Supreme Court, in vacation, granted a temporary writ of prohibition, directing the district judge to desist from a new trial of the cause, which he had ordered in compliance with the judgment of the Court of Civil Appeals, until this proceeding could be heard and determined by this court. "The court having had under advisement the motion of defendant filed herein June 2, 1917, asking for a reconsideration of, and a rehearing on, the order of this court made June 2, 1917, sustaining plaintiff's motions for a new trial and granting the plaintiff a new trial and of said motions, and said motion and the arguments of counsel for plaintiff and defendant thereon having been duly considered by the court, and the court being fully advised in the premises: Now on this date, in open court, it is ordered, adjudged, and decreed by the court that said defendant's motion for rehearing be granted and that the order at this extension of term heretofore made on June 2, 1917, granting plaintiff a new trial herein, be set aside, and held for naught, and plaintiff's original and amended motions for new trial being now fully considered, they and each of them are in all things overruled, to which ruling of the court the plaintiff H. L. Collier in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District sitting at Dallas. And on motion of plaintiff, 90 days is hereby granted to plaintiff from and after this date in which to prepare and file statement of facts and bills of exception. And now by this order the said above 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 court made March 31, 1917, for the completion of the trial of said cause and all orders and motions incident thereto as per the terms of said order, the said extension of said January term of this court is now here declared closed on this October 5, 1917." The court, on the same day, viz. October 5, 1917, caused to be entered on the minutes, "as of April 11, 1917," a final judgment, in conformity with the verdict, in favor of the plaintiff and against the defendant for $4,000, with interest from April 11, 1917, at the rate of 6 per cent. per annum and all costs, for which execution was ordered to issue. Prior to October 5, 1917, no judgment had been entered on the verdict. At the October term of the court, the plaintiff filed a motion to set said cause for trial, which was overruled, and thereupon plaintiff filed his original proceeding for mandamus [1-4] It will aid in the correct determination of the validity of the order of the trial court, setting aside its previous order for a new trial, to bear in mind the following thoroughly established principles: First, that ordinarily the jurisdiction of a court over both subject-matter and parties, once fully attached in a cause, continues until all issues both of fact and of law have been finally determined. Second, that article 1726, Rev. St., authorizes, not the calling by the district judge of a new, distinct, or independent term, but merely the continuance of the same term, the article the court necessarily possesses the same power as during the original term. 15 C. J. 886; Bank v. Withers, 6 Wheat. 106, 5 L. Ed. 217; Keith v. Ala., 91 Ala. 2, 8 South. 353, 10 L. R. A. 432. And, third, that it is within the power of the court, at the same term, to revise or vacate any of its judgments, decrees, or orders, including orders granting new trials. Blum v. Wettermark, 58 Tex. 125; Nowlin v. Hughes, 2 Willson, Civ. Cas. Ct. App. § 313; Hume v. John B. Hood Camp Confederate Veterans (Civ. App.) 69 S. W. 643; Watson v. Williamson, 33 Tex. Civ. App. 269, 76 S. W. 794; Ry. Co. v. Hugen, 45 Tex. Civ. App. 329, 100 S. W. 1000. It follows that, if the order vacating the award of the new trial was made before the end of the extended term, its validity is beyond question. The district judge extended the term "until the conclusion of said pending trial." The honorable Court of Civil Appeals GULF, C. & S. F. RY. CO. v. MUSE determined that the "trial of said cause was concluded upon the granting of plaintiff's motion for a new trial," and that was on June 2, 1917. 899 Legislature that, by an order entered during the term, the court may authorize a statement of the facts to be made up in vacation, within twenty days after the adjournment of the term.' The language of article 1726 has not here-Laws 28th Leg. 32. It is true that, without tofore been construed by this court; but we think that the words "conclusion of such pending trial," as used in said article, cannot be properly given such a restricted meaning as is required to support the decision of the Court of Civil Appeals. [5] Giving the word "trial" its ordinary and accepted meaning in law of "the judicial investigation and determination of the issues between parties" (Century Dictionary; 28 A. & E. Enc. of Law, 636), it would just as much include the action of the court on a motion, presented immediately after an order had been rendered granting a new trial, to set aside such order, as it would include the action of the court in granting a new trial. The court possessed the same control over the order as over the final judgment, and there is no essential difference in the limitations imposed in each case, by the expiration of the term, on the exercise of such control. The duty of the court to correct error or injustice in its previous action was the same, whether the error or injustice inhered in the final judgment, or in steps leading thereto, or in the award of the new trial. after an adjournment of the term of the court Hill v. The case of Hill v. State, 41 Tex. 255, decides that til all the issues of law as well as of fact have "The trial may well be held incomplete unbeen determined and the final judgment entered." The Court of Appeals had asked the question: "Does the trial embrace the final judgment?" ably. The trial has not terminated until the And had answered: "We think so, unquestionfinal judgment has been entered and the sentence pronounced." Mapes v. State, 13 Tex. App. 91. The Supreme Court of California likewise concluded that "Until the decision itself has been entered in the minutes, or reduced to writing by the judge and signed by him and filed with the clerk, the case has not been tried to a legal intent." Hast The decisions of this court furnish no warrant for holding that the trial of this case was concluded on June 2, 1917. Not only did the presiding judge consent to consider a motion for rehearing immediately after announcing the award of the new trial, and not only was the motion for rehearing forthwith and on the same day filed, but the recordings v. Hastings, 31 Cal. 98. shows that no final judgment on the verdict was entered until the 5th day of October, the benefit of the presumption always in[6] Giving the order on defendant's motion 1917. 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 nune pro tune of final judg-S. E. 353; Forrer v. Coffman, 64 Va. 878; ment, in order to determine whether a statement of facts had been filed within the prescribed time after the adjournment of the term at which the trial was had, it was answered in the negative. The opinion, by Chief Justice Brown, declares: Gammage v. Moore, 42 Tex. 170. "Plaintiff in error contends that the trial court had no authority, after the adjournment of the term at which the trial was had, to make up a statement of facts proved at the by this record, the extension of the January, [7] We conclude that, on the facts shown hearing. Article 1379, Revised Statutes, con- 1917, term had not expired when the court, tains this provision: 'After the trial of any cause, either party may make out a written on October 5, 1917, vacated the order for a 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 althe 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. Mcwrit 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 other legal operative remedy, but, where the other modes of redress are inadequate or tedious, the writ will be awarded." Not only would the remedy to defendant of appeal and writ of error, after another trial, be manifestly tedious, but such remedy would also be inadequate; for it is the very essence of defendant's right that it is entitled not to have to respond further to plaintiff's cause of action than by payment of his judgment. Justice Ramsey, in speaking for the court in Wright v. Swayne, 104 Tex. 444, 140 S. W. 222, Ann. Cas. 1914B, 288, said: It is therefore ordered that the clerk of this court issue the writ of mandamus, directed to the respondent, commanding him to enforce the final judgment heretofore entered on the minutes of the district court of Dallas county, Forty-Fourth judicial district, in cause No. 22277B, styled H. L. Collier v. Gulf, Colorado & Santa Fé Railway Company, and to proceed no further with a new trial of said cause so long as said judgment remains unreversed. DAUGHERTY et al. v. WILES. "If the court should willfully refuse to execute its own judgments according to their true 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." But it is insisted that since article 1595, Rev. St., confers on our Courts of Civil Appeals, or any judge thereof, in vacation, original jurisdiction to compel a district judge to proceed to trial in any cause, and since in the exercise of that jurisdiction a mandamus has been awarded by the Court of Civil Appeals of the Fifth District commanding the district judge to try this cause, we are bound by that award. 1. TRIAL Jan. 15, 1919.) 139(1)-DIRECTION OF Verdict -SUFFICIENCY OF EVIDENCE. To authorize the court to take a question of fact from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusions to be drawn from it. 2. PRINCIPAL AND AGENT 23(2)—Estab- RELATION-CIRCUMSTANTIAL such as the relation of the parties and their Agency may be established by circumstances conduct with reference to the subject-matter of the alleged contract. DENCE-ACTS OF AGENT. [9] Section 3 of article 5 of the Constitution authorized the Legislature to "confer original jurisdiction on the Supreme Court, to issue writs of quo warranto and mandamus in such cases as may be specified, except 3. PRINCIPAL AND AGENT 22(3) as against the Governor of the state." Under that authority the Legislature has conferred on this court original jurisdiction to issue writs of mandamus, "agreeable to the principles of law, regulating such writs against any district judge or Court of Civil Appeals or judge of the Court of Civil Appeals, or officer of the state government, except the Governor of the state." Vernon's Ann. Civ. St. Supp. 1918, art. 1526, Rev. St. It is inconceivable, in view of the express language of this article and the respective jurisdictions of the Supreme Court and of the Courts of Civil Appeals, that it was ever intended by the Legislature that this court should be precluded from granting full relief to one whom it found entitled to the writ of mandamus, under the law governing that Agency cannot be established by proof of the acts of the agent, unless it appears that the principal knew of, or assented to them, but where the acts justified a reasonable inference that the principal had such knowledge and would not have permitted them if unauthorized, the acts are competent. ESTAB 4. PRINCIPAL AND AGENT 24 Error to Court of Civil Appeals, Fourth 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 neifirmed 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, misrepreO. M. Fitzhugh and P. H. Swearingen, both sentations, and failure of consideration. Upon the answers of the jury to the other isof San Antonio, for plaintiffs in error. sues submitted the court rendered judgment against plaintiffs in error, which was affirmed by the Court of Civil Appeals. 156 S. W. 1089. W. L. Schlesinger and F. H. Booth, both of San Antonio, for defendants in error. STRONG, J. The plaintiff, Wiles, instituted two suits, one being against L. H. Bradford and Patrick Henry on two notes payable to Wiles, aggregating the sum of $1,275, and the other being against plaintiffs in error, Daugherty and Hancock, on two notes executed by them, payable to L. H. Bradford and Patrick Henry, and being otherwise conditioned as the notes involved in the other suit, it being alleged by Wiles that they were delivered to him by Bradford and Henry as collateral to secure the payment of their notes. The suits were consolidated. Bradford and Henry answered by general demurrer and general denial, and Henry added by way of special answer that all four of the notes sued upon were executed at the same time and for the same consideration; that the notes he signed were in reality the collateral notes to secure the Daugherty and Hancock notes; that the consideration for all the notes passed direct from Wiles to Daugherty, who bought an interest which Wiles owned in the San Antonio Furniture Company. Plaintiffs in error, Daugherty and Hancock, in addition to the general denial, answered in substance that the notes executed by them were given as a part of the consideration for the purchase by Daugherty from Wiles of a one-half interest in what was known as the San Antonio Furniture Company; that the Wiles interest in the business had been offered for sale to Daugherty by Bradford, all the negotiations for said sale being conducted through Bradford, or Bradford and Henry as the agents of Wiles. It was further alleged that in the negotiations leading up to the sale Bradford and Henry made certain misrepresentations concerning said business, which induced Daugherty to purchase the Wiles interest in said business, and that the representations so made were untrue, false, and fraudulent; thereby the consideration of the notes had failed. Hancock further answered that he was only a surety on the notes, which fact appeared on the face of the notes and was known to all parties, and that Wiles had granted an extension on the principal notes without the knowledge or consent of Hancock, whose notes were only collateral, and that he was thereby relieved from further liability. The case was submitted to the jury on spe The main question for determination is whether or not the trial court erred in withdrawing the issue of agency from the jury. [1, 2] In order to authorize the court to take a question of fact from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Insurance Co. v. Kemendo, 94 Texas, 367, 61 s. W. 1102. Measured by this rule, we are of opinion, after a careful examination of the record, that there is evidence supporting the theory of plaintiffs in error that Bradford was the agent of Wiles in the sale of his interest in the furniture business to Daugherty. It is well settled that agency may be established by circumstances, such as the relation of the parties and their conduct with reference to the subject-matter of the alleged contract. Without undertaking to set out in detail the evidence touching this issue, it is disclosed by the record that at the time of the negotiations Wiles, Bradford, and Henry were partners. Bradford and Henry lived in San Antonio, Tex., and had complete control of the partnership business. Bradford was general manager, and was recognized by Wiles as his agent in all things connected with the business. Neither Daugherty nor Hancock personally knew Wiles. the beginning of the negotiations of the purchase of the Wiles' interest of Daugherty Bradford requested and received permission from Wiles to sell Wiles' interest in the business to some person satisfactory to him, Bradford. After receiving this permission, Bradford offered to sell the Wiles' interest to Daugherty, and communicated to Wiles the information that he had found a prospective purchaser in the person of Daugherty, who would pay $1,000 cash and execute notes due in one and two years for $1,275, with Hancock as surety. Wiles answered this communication, agreeing to the sale, provided Bradford and Henry would indorse the notes. Thereafter a deal was closed by which Daugherty acquired the Wiles' interest on the terms stated. Prior to [3, 4] True, both Wiles and Bradford deny Bradford's agency in the transaction, but this is not conclusive. In many cases, agency arises, not from the use of express lan intended. 3. EVIDENCE 113(11)—MARKET VALUE OF GRASS-RENTAL FOR PASTURE. The rent paid by plaintiff for pasture could not determine the market value of grass destroyed by fire, but, if there was no market value, the rent might be a circumstance to be considered in arriving at the value of the grass for the purpose for which it was intended. 4. APPEAL AND ERROR 1064(1) ERRONEOUS INSTRUCTION-REVERSIBLE ERROR. 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 the parties so understand it or not. As a general rule, agency cannot be established by proof of the acts of the alleged agent, in the absence of evidence to show the principal's knowledge of such acts or his assent to them, but where the acts are of such character as to justify a reasonable inference that the principal had knowledge of them, and would not have permitted them, if unauthorized, the acts themselves are competent to show agency. It is within the province of the court to determine whether under an ascertained state of facts an agency exists, but it is for the jury to determine the existence of facts sufficient to constitute agency. Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. There is evidence in the record that Bradford made fraudulent representations to Daugherty in the sale, which were relied upon by Daugherty; and we think this issue, together with the issue of Bradford's agency, should have been submitted to the jury. 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 remanded for another trial. PHILLIPS, C. J. The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. The case is correctly remanded upon the ground stated by the Commission in its opinion. In an action for negligent burning of grass in a pasture, erroneously instructing that plaintiff was entitled to recover the cost of feed for his cattle and the expense necessary in feeding them was reversible error. Error to Court of Civil Appeals of Seventh Supreme Judicial District. Action by C. T. Word against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff was affirmed by Court of Civil Appeals (158 S. W. 561), and defendant brings error. Reversed and remanded for new trial. N. H. Lassiter, of Ft. Worth, and Gustavus & Jackson, of Amarillo, for plaintiff in error. W. Boyce, of Amarillo, for defendant in error. SADLER, J. The plaintiffs in error call in question the correctness of the holding of the honorable Court of Civil Appeals in approving the measure of damages as submitted in the charge of the court. Word obtained judgment in the district court against the Chicago, Rock Island & Gulf Railway Company for the sum of $918, as damages resulting 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 pasturage, and that 500 head of cattle were 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.) CHICAGO, R. I. & G. RY. CO. v. WORD. (No. 22-2640.) 1. DAMAGES OF GRASS. out feed, and that on account of its destruc112--MEASURE-DESTRUCTION tion it became necessary to purchase cotton seed cake and to incur expenses in feeding and caring for the cattle. In action for the negligent burning of grass in a pasture, a charge, permitting recovery for the cost of feed and expenses of caring for cattle, does not furnish a certain rule of damages, but the correct rule is to permit recovery for the value of the grass at the date of its destruction. 2. DAMAGES OF GRASS. On the measure of damages, the court charged the jury as follows: "If, under the foregoing instructions, you find for the plaintiff, and you further find that as a proximate result of the burning of the grass in plaintiff's pasture, it became and was rea112-MEASURE-DESTRUCTION sonably necessary for him to furnish feed, and 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 |