CUDAHY PACKING COMPANY v. R. A. DORSEY ET AL.

Decided November 25, 1903.

1.-Joinder of Actions-Harmless Error.

It seems that there was no error in overruling exceptions to a joinder of causes of action in tort and upon contract, growing out of the same transac tion, but, if error, it was harmless where but one of such issues was submitted to the jury.

2. Shipper and Consignee-Charge-Harmless Error.

The charge held erroneous on the former appeal of this cause (26 Texas Civ. App., 484) was not ground for reversal on the present record, where there was no evidence of injury to the property in question by delay in transit before reaching the hands of the last carrier.

3.—Expert Evidence-Argument of Counsel.

Witnesses held qualified to testify as experts, and argument of counsel held not improper.

Appeal from the County Court of Hamilton. Tried below before Hon. J. H. Warren, County Judge.

This is a third appeal from a judgment in favor of the appellee for damages to a carload of meat.

J. Van Steenwyk, for appellant.

Dewey Langford, for appellee.

STREETMAN, ASSOCIATE JUSTICE.-This is the third appeal in this case. A statement of the nature of the suit will be found in the former opinions of this court. Cudahy Packing Co. v. Dorsey, 26 Texas Civ. App., 484; Texas Central Railway Co. v. Dorsey, 30 Texas Civ. App., 377.

The plaintiff R. A. Dorsey sought to recover of the packing company and the railroad company damages to a car load of meat, shipped from Omaha, Neb., to Hico, Texas. The ground of the recovery was certain alleged negligence of said defendants. By an amendment, the plaintiff sought to recover of the railroad company upon the further ground of a contract made after the arrival of the meat at Hico, by which plaintiff was to receive the meat and dispose of it to the best advantage, and the railroad company was to pay whatever loss was sustained.

Appellant excepted to the pleadings in this condition, because of a misjoinder of causes of action. We should probably hold, if necessary, that there was no misjoinder of causes of action (Ney v. Ladd, 68 S. W. Rep., 1014; Hooks v. Fitzenreiter, 76 Texas, 227), but the court did not submit to the jury the issue raised by the objectionable pleading, and no verdict was rendered against the railroad company. We are unable, therefore, to see how the error, if it was error to overrule the excep tion, could have injured apellant.

Upon the first appeal of this case it was reversed because the court

instructed the jury to find against the packing company, if they should find that the meat was damaged before it was delivered to the Texas Central Railroad Company. In that record, however, "the evidence indicated some delay before it was received by the Texas Central Railroad Company." 26 Texas Civ. App., 484. The same character of instrue tion is again assigned as error, but in the record now before us there is nothing to indicate any delay by a connecting carrier, but it is stated as a fact that the shipment reached Hico, where it was delivered to the Texas Central Railroad in the usual time. The instruction complained of was not reversible error under the circumstances.

Other assignments of error complain of the admission of certain expert testimony, and the remarks of counsel in argument. The witnesses, in our opinion, were qualified as experts, and the argument referred to was not improper.

The evidence was sufficient to support the verdict of the jury, and no reversible error being shown, the judgment is therefore affirmed.

Affirmed.

FRANK F. FINKS V. ALFRED ABEEL ET AL.

Decided November 25, 1903.

1.-Vendor's Lien-Limitation-Superior Title.

The assignee of a note secured by vendor's lien expressly retained in the deed and who holds also a transfer of the assigner's interest in the land, can recover the land itself, where limitation is successfully pleaded to a suit for recovery and foreclosure on the note.

2.-Payment-Evidence.

The evidence held to support a finding that a note sued on had not been paid.

Appeal from the District Court of McLennan. Tried below before Hon. Marshall Surratt.

Clark & Bolinger for appellant.

Sleeper & Kendall, for appellees.

KEY, ASSOCIATE JUSTICE.-Appellees brought this suit against John H. Finks, F. F. Finks, and W. K. Finks, upon a promissory note executed by W. C. Kellum, payable to the order of E. E. Dismuke, and secured by a vendor's lien expressly retained on certain real estate in the city of Waco.

The defendant F. F. Finks denied liability on his part, asserted that the note had been paid, and if not, that it was barred by limitation.

In reply to the answer of F. F. Finks the plaintiff alleged that he had acquired the superior title to the land by purchase from Dismuke, and prayed in the alternative for a recovery of the land. The trial court rendered judgment for the plaintiff for the land, and F. F. Finks has appealed.

The trial judge did not file separate findings of fact and conclusions of law, but incorporated in the judgment the following conclusions: "That the plaintiff is the owner of the note sued on; that same has never been paid; that to secure payment of said note, the vendor's lien was expressly retained in deed from E. E. Dismuke to W. C. Kellum; that the defendants assumed and agreed to pay off said note, as recited in the deed from Kellum to the defendants, as set out in plaintiff's petition, and the plaintiff holds the superior title to said land by conveyance from E. E. Dismuke, as set out in his first supplemental petition, and that the right of plaintiff to recover on the note sued on is barred by the statute of limitation."

There is testimony in the record which sustains all of these findings, and we therefore adopt them as correct. Such being the facts the trial court rendered the proper judgment. The defendant having pleaded limitation against the note, and the plaintiff having acquired from Dis

muke the superior title he was entitled to recover the land. Wright v. Cole, 9 Texas Civ. App., 277, and the cases there cited.

It is strenuously contended on behalf of appellant that the note had been paid, and the lien thereby extinguished, before the note came into the possession of the appellee, but we think the testimony supports the trial judge's finding that the note had not been paid.

All the assignments of error have been considered, and no grounds for reversal being shown, the judgment is allirmed.

Writ of error refused.

Affirmed.

R. J. POOLE ET AL. v. BURNET COUNTY.

Decided November 25, 1903.

County Treasurer-School Fund-Bond.

This case is affirmed in accordance with the rulings of the Supreme Court upon certified questions herein (Poole v. Burnet County, 97 Texas, 77.)

Appeal from the District Court of Burnet. Tried below before Hon. M. D. Slator.

Matthews & Browning, for appellants.

Ike D. White, T. E. IIammond, and Dayton Moses, for appellee.

ALLEN, SPECIAL CHIEF JUSTICE.-This was a suit brought by the county of Burnet against R. J. Poole and the other appellants for breach of a bond as treasurer of the school fund of Burnet County, the said Poole being the principal and the other appellants sureties thereon. From a judgment in favor of the county, the case is appealed to this court. The facts, so far as they are necessary to a decision of the case, are as follows:

At the general election in 1900, the appellant R. J. Poole was elected county treasurer of Burnet County, Texas. On November 27, 1900, he executed his bond to the county judge of said county in the sum of $25,000, conditioned that he would safely keep and faithfully disburse the school fund of Burnet County, according to law. The bond so given was in words and figures as follows:

"The State of Texas, County of Burnet. Know all men by these presents: That we, Robert J. Poole, as principal, and W. H. Boggess, J. P. Barton, B. H. Stewart, W. J. Powell, Wm. Russell, J. G. Brydson, M. L. Ater, J. W. Wilkerson, and T. D. Vaughan, as sureties, are held and bound unto Ike D. White, county judge of Burnet County, Texas, and his successors in office in the sum of twenty-five thousand dollars, for the payment of which we hereby bind ourselves and our heirs, executors and administrators, jointly and severally by these presents.

"Signed with our hands, and dated this 27th day of November, 1900. "The condition of the above obligation is such, that, whereas, the above bounden R. J. Poole was, on the 6th day of November, 1900, duly elected to the office of treasurer in and for Burnet County, in the State of Texas.

"Now, therefore, if the said R. J. Poole shall faithfully perform and discharge all the duties required of him by law as treasurer aforesaid, and shall safely keep and faithfully disburse the school fund of Burnet County, according to law, and render a just and true account thereof to the Commissioners Court at each regular term, then this obligation to be void, otherwise to remain in full force and effect.

"In testimony whereof, witness our hands."