And further: "A defendant cannot plead as a defense to a cause of action on promissory notes executed by said defendant certain money demands or claims which he has against the plaintiff, but, if he wishes to urge said demands or claims, he must set them up as offsets or counterclaims to plaintiff's cause of action." evidence tended to vary the terms of a writ-, and such facts, if true, constitute no defense to ten contract, although said answer was pre- plaintiff's cause of action." sented as a plea of want of consideration and duly verified as required by statute. The court also sustained exceptions to the answer upon the ground that all of the matters pleaded as defenses to the cause of action sued on were barred by limitation, and held that so much of the plaintiff's cause of action as sought to recover $3,136.59 upon the contract of sale alleged to have been entered into between plaintiff and defendant on October 1, 1917, was barred by limitation, and proceeded to render judgment in favor of the plaintiff and against the defendant on the two promissory notes sued on. The court having sustained the special exceptions, which in effect eliminated the defendant's defenses to the notes sued on, no evidence was offered in support of the defenses set forth in paragraph 4 of the defendant's answer. The defendant duly excepted to the judgment entered, and perfected his appeal to this court. The first, second, and third assignments of error are grouped and will be considered together, as follows: (a) "The court erred in sustaining the plaintiff's first special exception, contained in the second paragraph of plaintiff's first supplemental petition, to the fourth paragraph of the defendant's first amended original answer." (b) "The court erred in sustaining plaintiff's second special exception, contained in the third paragraph of plaintiff's first supplemental petition, to the fourth paragraph of the defendant's first amended original answer." Nowhere does the defendant allege that the property sold by plaintiff was not of the full value as agreed on at that time, nor does he allege that he failed to get possession of said property, nor does he allege that after getting possession thereof the title to said property or any part thereof failed. But appellant bases his plea of want of consideration wholly on the alleged fact that there was a parol agreement contemporaneous with the execution of said notes that the mutual debts between the parties were to be afterward adjusted and defendant was to be allowed as a credit on said notes any alleged sum found to be due defendant by plaintiff, and that afterward it was found that certain sums were due defendant from plaintiff which reduced the amount due on said notes to the sum of $368.33; and nowhere does defendant seek to set up the amount alleged to have become due him from plaintiff as an offset or counterclaim, but urges said matters strictly as a defense. [1] Without undue consumption of space in this opinion, it will only be necessary to say that in our opinion the action of the court was correct, and the assignment is in all things overruled. Newton v. Newton, 77 Tex. 512, 14 S. W. 157; Saunders v. Brock, 30 Tex. 421; Leavell v. Seale, 45 S. W. 171; (c) "The court erred in sustaining plaintiff's third special exception, contained in the fourth paragraph of the plaintiff's first supplemental petition. to the fourth paragraph of the defendant's first amended original answer." The proposition under the foregoing as- Ablowich v. Greenville National Bank, 22 signments is: "In a suit on a promissory note between the original parties to the note, where a sworn answer is filed alleging that the note was executed without consideration, and alleging all of the facts of the transaction out of which the note arose, the question of consideration is open and parol evidence is admissible to show all the facts, just as in the case of allegations of fraud, accident, or mistake in the execution of an instrument sued on, and the objection that such evidence tends to vary the terms of a written contract has no application." On the contrary, it is urged: "An answer alleging that defendant bought property of plaintiff, and executed the notes sued on by plaintiff as a consideration therefor, and alleging a contemporaneous parol agreement that defendant was to be allowed certain credits on the notes, is not in law a pleading of want or failure of consideration." And further: "An answer to a petition setting out a cause of action on promissory notes executed by the defendant, which answer alleges as a defense a parol agreement contemporaneous with the execution of said notes, to the effect that defendant in certain contingencies was not to pay the whole amount of said notes and was to be allowed certain credits thereon to be afterward determined, is an attempt to vary, change, and contradict a written contract by parol evidence, 203 S.W.-59 Tex. Civ. App. 272, 54 S. W. 794; Bailey v. Rockwall County National Bank, 61 S. W. 531; Key v. Hickman, 149 S. W. 277; Norton v. Wochler, 31 Tex. Civ. App. 522, 72 S. W. 1025; Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S. W. 436. The fourth and fifth and sixth assignments will be considered together, as follows: (a) "The court erred in sustaining the plaintiff's fourth special exception, contained in the fifth paragraph of plaintiff's first supplemental petition, to the fourth paragraph of the defendant's amended original answer." tiff's fifth special exception, contained in the (b) "The court erred in sustaining the plainsixth paragraph of plaintiff's first supplemental petition, to the fourth paragraph of defendant's first amended original answer." (c) "The court erred in sustaining the plaintiff's sixth special exception, contained in the seventh paragraph of plaintiff's first supplemental petition, to the fourth paragraph of the defendant's first amended original answer." Under these assignments, the following propositions are urged: (a) "In a suit by one partner against another for the recovery of money, growing out of their partnership relation, such cause of action is not barred until the expiration of four years from the time the indebtedness or cause of ae tion sued on was ascertained by settlement of the affairs of the partnership." (b) "Offsets and counterclaims not barred at the time of the filing of the plaintiff's suit can be urged as a defense to the suit, or to reduce the amount of the plaintiff's demand, where no affirmative relief is sought, although such offsets and counterclaims may be barred at the time they are set up, as independent causes of action, and as such no affirmative relief could be granted upon them." (c) "The statutes of limitations operate upon causes of action only, and do not bar facts offered in evidence as a defense to a cause of action asserted, where no affirmative relief is prayed for by reason of such facts." On the contrary, it is contended that actions by one partner against his copartner for a settlement of the partnership accounts are barred after four years from the time the cause of action accrued, and the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together; and, further, that offsets and counterclaims can never be set up as a defense to a cause of action, but are separate causes of action in defendant's favor against the plaintiff, and defendant is barred by limitation from all relief as to such offsets and counterclaims where such offsets and counterclaims became due more than four years before the institution of plaintiff's suit. It seems from this record that defendant's answer shows that the that defendant's answer shows that the notes which he attempts to set up as a defense became due August, 1912, October, 1912, and December, 1912, respectively; that the account of $312.93 was due before the partnership was dissolved; and that the Bay Shore Iron Works property was sold to plaintiff November 27, 1912. guage used or how it was applied, the allegation Drunkenness alone is not a ground for divorce as cruelty. The following cases support the contention of appellee: Nelson v. San Antonio Trac-5. tion Co., 107 Tex. 180, 175 S. W. 436; Holliman v. Rogers, 6 Tex. 91; Walker v. Fearhake, 22 Tex. Civ. App. 61, 52 S. W. 629. In the case of Nelson v. San Antonio Traction Co., supra, the Supreme Court used this language: "The conclusion then is necessarily reached that if it was the subject of an independent action by the traction company against Nelson, and did not constitute payment to Nelson for any part of the contract made with the traction company, the statute of limitation would begin to run from the time each item of the claim against Nelson originated; and if due and payable more than four years before the institution of the action by Nelson against the traction company, such claims of the traction company were barred by the statute of limitation." RECEIVERS 35(1) - NOTICE TO DEFEND ANT. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 2128, subds. 1 and 4, as to appointment of receiver, that defendant was threatening to certain personalty would not warrant the apwithdraw certain money from the bank and sell pointment of a receiver, pending trial of divorce suit, without notice to defendant. Appeal from District Court, Henderson County; John S. Prince, Judge. Divorce suit by Bertha Claunch against W. L. Claunch. From orders appointing receiver and granting injunctive relief, defendant appeals. Reversed and remanded. Miller & Miller, of Athens, for appellant. Justice, Coker & Justice, of Athens, for appellee. [2] It is evident in the case at bar that RASBURY, J. Appellee sued appellant the claims of 'defendant against plaintiff, as in the court below for divorce and certain alleged, are the subjects of independent ac- equitable relief pending trial. Omitting fortion by defendant, and did not constitute pay-malities, the petition, in substance, alleges ment of plaintiff's claim, and under all the that parties were married November 27, 1900, authorities of this state are barred by the and lived together until April 8, 1918. To statute of limitation, and are not causes of them were born seven children, the eldest 15 action or defenses which the courts of this years of age, and the youngest 4 years. Durstate could recognize or upon which they caning marriage appellee demeaned herself with lee, and enjoined the First National Bank of Mabank from paying to appellant any money in said bank to his credit. From the foregoing orders appellant has appealed and filed briefs. Appellee has filed no briefs. [1] Incidentally, it appears that appellant, after the action of the court in the respect stated, filed answer to the petition, but, since the answer was not before the district judge when his order was made, it cannot be considered here. City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Jelinek v. State, 52 Tex. Civ. App. 402, 115 S. W. 908; Houston Electric Co. v. Glen Park Co., 155 S. W. 965. The first contention presented by appellant is that the allegations of cruel treatment contained in the petition are insufficient to support a decree for divorce, and as a consequence present no cause of action. After a careful analysis of the allegations and a review of the cases we have reached the conclusion that the petition does fail to state a cause of action. propriety, managed their household affairs 672 acres of land, separate estate of appelwith prudence and economy, and at all times was kind and forbearing towards her husband. Soon after their marriage appellant, in disregard of his marriage vows, formed the drink habit, as a result of which he frequently squandered money, remained away from home at nights in a drunken condition, returning cross and irritable, often cursing and abusing appellee without provocation. Due to such conduct, appellee, after their marriage, left appellant and returned to the home of her father. Upon the promise of appellant that he would refrain from drinking and treat her with kindness she returned to him. Appellant observed his promise for a period of about four years, or until the year 1906, at which time he resumed drinking, and due thereto would frequently remain away in the city of Dallas two or three days at a time, without knowledge by appellee or her children of his whereabouts. During the latter part of the year 1917 appellant would frequently sell the farm products, and with the proceeds go to the said city of Dallas, remaining there three or four days, returning under the influence of drink, cross and ill, and would curse and abuse appellee unmercifully. About April 2, 1918, appellant, without advising appellee whither he was going, went to the city of Dallas, and remained there four days, returning home under the influence of drink, at which time he cursed and abused appellee severely. Appellant has taught their two older children the use of intoxicating drinks and has brought them home intoxicated. Appellee has pleaded with appellant to refrain from drink and abuse of her and to assist her in accumulating but he has refused so to do. Appellee owns in her separate right, by gift from her father, 672 acres of land. Appellee and appellant | own community property consisting of 42 acres of land, live stock, household furniture, vehicles, personalty, farm implements, and supplies of the value, excluding the realty, of $4,537.50 (against which there are incumbrances aggregating $750), and have as well on deposit in bank $165. The parties have 25 acres of land planted in corn, 10 acres in cotton, and 30 acres prepared for planting with cotton. Appellant has threatened to convert their personalty to his personal use by sale thereof, and for same purpose withdraw their money from the bank. Prayer was for custody of the children, for injunction, and receiver. On the day it was filed the petition was presented to the Honorable John S. Prince in chambers, who, upon the sworn allegations thereof, without notice to appellant, appointed T. M. Pippin, appellee's father, receiver of the community estate of appellant and appellee, with authority to take possession thereof, and to finish planting the crops on the land thereof, etc.; and enjoined appellant from interfering with the receiver or the [2] The proceeding is brought under subdivision 1 of article 4631, Vernon's Sayles' Civil Statutes, providing that either spouse may be granted divorce when the other "is guilty of excesses, cruel treatment or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable." There has been much discussion in the past concerning precisely what meaning should be given to the terms excesses, cruel treatment, and outrages, but the judicial meaning is at this time, in our opinion, reasonably clear. Omitting any discussion of the claim, urged in the past, that the terms in every case contemplate personal violence, it may be said that in this state the general rule is that, in the absence of physical violence or the fear of it, it must appear, when a separation is sought under the subdivision cited, that the conduct complained of is such as is reasonably calculated to produce that degree of mental distress as will impair the health of the complaining spouse, or is of such a character, considering the relation of the parties, their sex, refinement, respectability, and morality, as renders their living to, gether insupportable. In the early case of Sheffield v. Sheffield, 3 Tex. 79, it was held that the terms quoted included "a series of studied, vexatious and deliberate insults and provocations," unaccompanied by bodily harm or fear of it, which, if intolerable, would authorize divorce. In Jones v. Jones, 60 Tex. 451, it was held that words impeaching a wife's chastity, unaccompanied by personal violence, was within the meaning of the terms. In Eastman v. Eastman, 75 Tex. 473, 12 S. W. 1107, the cases cited are reviewed and approved, and it is said, "We believe that no decision of this court can be found in which a judgment for divorce on the ground of cruelty has been was that, or mere rudeness, or charged her with a want of purity or infidelity to her conof behavior, or that which, aggravated by his jugal relations, whether it was only grossness brutal intoxication, would amount to the cruel treatment which under the statute, would be ground of divorce, we cannot judge, as we have only the opinion of the witness that it was abusive and insulting." permitted to stand, in the absence of some degree of * * violence," save in the instances cited. But the court in substance declared that it did not follow from such holding that other acts, sufficient under the statute, might not arise. In fact in case cited the court holds that the defendant's conduct towards his wife, a woman tenderly reared and of fine sensibilities, which con[5] The contention is also made that the sisted of habitual drunkenness, a failure to appointment of a receiver without notice to support her, addressing her with oaths and appellant was unwarranted by the allegain an unfeeling and insulting manner, neg- tions of the petition. In this contention we lecting to administer medicine prescribed by also agree. The appointment of the receiver physicians, resulting in serious injury to her was warranted, if at all, under subdivision 1 of article 2128, Vernon's Sayles' Civil Stathealth, discharging her physician during a critical illness, requiring her while pregnant utes, which provides, among other things, for to milk cows in inclement weather, and re- the appointment of a receiver in actions "beto milk cows in inclement weather, and refusing to secure her a physician, resulting in tween partners or others jointly owning or miscarriage, were the excesses, cruel treat-where it is shown that the property or fund interested in any property or fund * * ment, and outrages contemplated by the statute, even in the absence of personal violence. [3, 4] There are many other cases, but those cited are typical and suggest the meaning which ought to attach to the terms in ing which ought to attach to the terms in the absence of personal violence or reasonable fear of it. What, then, is the application of the rule to the facts alleged in appellee's petition? Those facts, aside from drunkenness, which alone is not grounds for divorce, are generally that the appellant would frequently without appellee's knowledge, after selling the farm products, go to the city of Dallas and remain three or four days, returning intoxicated, cross, and ill, and would curse and abuse her unmercifully, and specifically that on April 2, 1918, without her knowledge, went to and remained in Dallas four days, and when he returned intoxicated abused her unmercifully. To say that one cursed and abused another unmercifully or abused him severely is but a conclusion. In divorce proceedings much depends upon the character and manner of the curse invoked or the abuse administered. The words used and how applied might or might not be sufficient. Blasphemy, resulting from irritability caused by illness produced by drink would, however, hardly justify such relief. No studied, vexatious or deliberate insults and provocations are alleged. No moral aspersions are shown. No conduct such as is detailed from the Eastman Case, supra, is claimed. The case, it occurs to us, comes directly within the ruling in Camp v. Camp, 18 Tex. 528, where the evidence is stated in full, and which presents a condition much more aggravated than is presented in the present proceeding, and where the court say that the defendant "was drunk during the period, mentioned, about two-thirds of the time, and at times would use very abusive and insulting language to his wife. But this language is not stated. and neither the jury nor the court could judge of the extent or character of the insult. Whether the language is in danger of being lost, removed or materially injured"; or under subdivision 4 of said article, which declares that receivers may be appointed "in all other cases where may be appointed "in all other cases where receivers have heretofore been appointd by the usages of the court of equity." The substance of the allegations of the petition on which the receiver was sought was that appellant was threatening to withdraw certain money from the bank, and to sell certain personalty, and convert all to his personal use. Such facts, in our opinion, will not warrant the appointment of a receiver without notice to the defendant in the proceeding in any event, particularly over the property which the defendant could not sell and convert to his use. We have reference to the community land and crops thereon of the parties. The injunction issued by the court would have afforded ample remedy as to the personalty. Haywood v. Scarborough, 41 Tex. Civ. App. 443, 92 S. W. 815; Security Land Co. v. South Texas Development Co., 142 S. W. 1190; Williams v. Watt, 171 S. W. 266. The cases cited furnish the reason of the rule in such cases, and for that reason we omit any discussion thereof. There is in the petition for divorce the general allegation that appellant taught the two older children the use of intoxicating drink and "has brought them home to her in a state of intoxication." While we think the allegation too general to warrant the relief granted upon ex parte hearing on sworn petition, we are not prepared to say that, upon allegation and proof of the circumstances and facts surrounding the charge, they would not be sufficient to sustain an action for separation by divorce. For that reason the cause will be reversed and remanded, and the receiver dismissed, but the interlocutory injunction will remain in force pending the filing of amended petition by appellee and further hearing by the district court upon notice to appellant. court of Chambers county, Tex., the Massil MASSILLON ENGINE & THRESHER CO. lon Engine & Thresher Company recovered v. BARROW et al. (No. 367.) judgment against J. M. Barrow, Lee Barrow, (Court of Civil Appeals of Texas. Beaumont. and Clarence Barrow for the amount of the May 13, 1918. Rehearing Denied notes above described and for foreclosure of June 5, 1918.) their deed of trust lien on the land described. 84-EXTENT TENANTS IN An order of sale was issued on said judgment, 1. HOMESTEAD COMMON. Where tenants in common live upon a large tract of land, each occupying different parts as their respective homesteads, the homestead interest of each extends through the entire tract, and upon partition each of the cotenants is entitled to a homestead containing not exceeding 84-COTENANCIES-PARTI 200 acres. 2. HOMESTEAD 5. JUDGMENT 693-HUSBAND AND WIFERES JUDICATA. In a suit for an injunction against a foreclosure action, wherein the wives of petitioners did not set up their homestead rights in the lands sought to be sold, the decree in the foreclosure action did not conclude them from claiming such rights; the wives of petitioners not being joined in the foreclosure action. Appeal from District Court, Chambers County; J. Llewellyn, Judge. Action by Clarence Barrow and others against the Massillon Engine & Thresher Company for an injunction. From a judgment for plaintiffs, defendant appeals. Affirmed. H. E. Marshall, of Liberty, and A. W. Marshall, of Anahuac, for appellant. Stevens & Stevens, of Houston, for appellees. and on April 27, 1905, the appellees in this court, plaintiffs in the district court, Clarence Barrow and wife, Lee Barrow and wife, and J. M. Barrow and wife, secured a writ of injunction from the district judge of Chambers county, Tex., prohibiting the sale of said property under the order of sale issued in the forclosure case, upon the ground that the property involved was at the time of the execution of said deed of trust the homestead of the plaintiffs. Plaintiffs allege that J. M. Barrow and wife, Clarence Barrow and wife, and Lee Barrow and wife are, respectively, the owners of 62 acres undivided interest in and to the 700 acres of land described in said deed of trust, and claiming said 62 acres undivided interest as their homestead. A temporary writ of injunction was granted by the court, and upon trial of the case on the 4th day of June, 1917, the court entered judgment for the plaintiffs, appellees in this court, perpetuating the injunction granted theretofore. Some of the original plaintiffs had died before the case was tried, but it is agreed by the parties that all necessary and proper parties, plaintiffs and defendants, were before the court on trial. It might be well, however, to state that during the pendency of the suit the land was partitioned among several tenants in common, including the original plaintiffs. The contention of appellees was that they were entitled to acquire homesteads upon the undivided tract of land. J. M. Barrow and Lee Barrow having died since the suit was instituted on the 6th day of June, 1917, their heirs were made parties plaintiff by an amended pleading. The undisputed evidence shows that all three of the original plaintiffs were married men, and were either living upon the land covered by the mortgage at the time of its execution as their respective homes or were using parts of same as homestead property, and that each of said original plaintiffs so owned and used less than 200 acres of land. Appellant's first assignment of error challenges the action of the lower court in rendering judgment for the plaintiffs, in that the great weight of credible testimony in this cause discloses that the land described in the mortgage executed by J. M., Lee, and Clar BROOKE, J. On the 7th day of October, 1903, J. M. Barrow and wife, Jane Barrow, Lee Barrow and wife, Josephine Barrow, and Clarence Barrow and wife, Rosa Barrow, executed to B. R. Garland, trustee, in favor of the Massillon Engine & Thresher Company, a deed of trust on 540 acres in the F. Banda survey and 160 acres in J. S. Barrow pre-ence Barrow and their wives to the Massillon emption survey, to secure the payment of cer- Engine & Thresher Company was not the tain notes given by J. M. Barrow, Lee Bar- homestead of said Barrows at the time of the row, and Clarence Barrow to the Massillon execution of said mortgage, in that it had Engine & Thresher Company. Afterwards, on not been appropriated, designated, and named the 13th day of March, 1905, in the district as a homestead, or used in such a manner as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |