included the balance due on the principal of the note, interest due thereon at the time of the suit, $25 attorney's fees provided for in the note, and $10 costs of suit. This draft was paid by the Hallettsville firm, and the original note withdrawn from the court and sent to said last-named firm. After the Hallettsville firm had paid the Rosenberg Bank the amount of the judgment and costs of suit, it instructed either Stein or one Joerger, of Rosenberg, to try to get a settlement out of West and Dvorak, the makers of the note. Stein went to see these parties, and they agreed that, if Stein would deliver to them the note, they would deliver to him three of the mules. Stein notified the Hallettsville firm of this proposition, and in due time the note was sent to either Stein or Joerger, and Stein delivered the same to West and got the mules. The appellee, Greenebaum, contends that the mules were the property of the Hallettsville firm, and Stein, appellant, contends that they were the property of the Rosenberg firm, at the time they were taken back from West. The undisputed evidence shows that the note was sent to the Hallettsville firm under the agreement of the two firms, and that the Rosenberg firm received credit therefor; thus it became the property of the Hallettsville firm. The undisputed evidence also shows that this note was later sold to the Rosenberg Bank and beyond question became its property, and that neither it nor any part thereof was ever retransferred to or in any manner became the property of the Rosenberg firm. The undisputed evidence of the bookkeeper, Tippett, is that after the Hallettsville firm received the note from Stein he entered a credit, but that after the Hallettsville firm had paid the $298 to the bank no charge or credit of any kind was made against the Rosenberg firm. Without going into further details, we nave, from what has already been stated, shown by the undisputed facts, first, that the note in question was credited to the account of the Rosenberg firm, and as a consequence was charged to the Hallettsville firm, thus reducing the debt of the Rosenberg firm to the Hallettsville firm in the sum of $775; second, that neither the note, nor any part thereof, was ever charged back to said Rosenberg firm; third, that said note was sold to the Rosenberg Bank by Stein at the request of the Hallettsville firm, to whom it had been transferred, for the sum of $775, and of course became the property of the bank, fourth, that, after the bank had taken judgment on the note against the makers of the note and the indorser, the Rosenberg firm, and after the Rosenberg firm had taken judgment over against the makers for such sum as it might be compelled to pay the bank, the Hallettsville firm paid the bank its money for said judgment, and became that the Rosenberg firm was never charged with any portion of the sum paid by the Hallettsville firm to the Rosenberg Bank; sixth, that Stein took the mules involved in this controversy in payment of the judgment owned by the Hallettsville firm, and disposed of them without the consent and over the protest of their owners. If I am sustained by the undisputed evidence in the above conclusion, of course it follows that Max Stein was in possession of the mules as bailee for the Hallettsville firm when he took them from West, and not as owner or part owner thereof. The contention that he had an interest in them, because his firm had indorsed the note in question, is so plainly untenable that it will not admit of an extended discussion. Suppose A. owned a note given for mules by B., and A. was to indorse and sell the same to a bank, and the bank were to pay A. for the note or give him credit on its books for the value of the note, and thereafter, on failure of B. to pay said note, the bank sued B. and the indorser, A., thereon and took judgment thereon against both A. and B., and then A. took judgment over against the maker, B., and thereafter, by instructions from the bank, A. took the mules back in payment of the judgment, to whom would the mules belong? It seems to me that but one answer could be made, and that is that the mules were the property of the bank, and that A. was holding them as bailee for the bank. Certainly in such case A. would own no interest in the mules by reason of his indorsement of the note which he had sold to the bank. If A. was credited with the amount of the note on the books of the bank, such amount stood as a credit to A. and it would be absurd to say, as is said in the majority opinion, that such credit was "only a mere matter of bookkeeping." The bank, in such case, would have the option to call upon the indorsers for payment of the note when the maker failed to pay the same; but it was not bound to do so, and if it saw proper to take the mules, or have them taken, in payment and full satisfaction of its judgment, the mules would be its property, and the indorser, A., would own no interest whatever therein. The same principle is applicable in the present case. Technically Stein, in disposing of the mules taken from West, without the consent and over the protest of the Hallettsville firm, was guilty of the offense of theft by bailee. Greenebaum had been so told by Mr. Bagby and Mr. Ragsdale, two highly honorable men and lawyers of known ability in their profession. He had also been so told by Hon. W. L. Davidson, county attorney of Ft. Bend county, after said county attorney had been fully advised of all the matters directly material and relative to the question of the guilt or innocence of Stein, and certainly under these circumstances making the affidavit charging Stein with theft as bailee, and therefore I do not think the trial court erred in instructing a verdict for appellee Greenebaum in this case. It was not a necessary justification of Greenebaum that legal probable cause should, in fact, have existed. The question on this issue was, not whether Stein was actually guilty as charged, but whether Greenebaum had reasonable grounds, from the facts known to him and advice given him, to believe, and did actually believe, that Stein was thus guilty. McManus v. Wallis, 52 Tex. 546, 547. Where the undisputed evidence shows, as in this case, that the defendant had probable cause for instituting the prosecution against the plaintiff, the question as to whether at the time of the institution of the prosecution defendant was mad at the plaintiff becomes immaterial. I shall therefore not discuss the question of malice. For the reasons given, as well as others apparent of record, I am unable to concur with the majority of the court in holding that the judgment of the trial court should be reversed, and the cause remanded. delivered to appellant. The original petition complained of the Chicago, Rock Island & Pacific Railway Company, Cecil A. Lyon, and J. A. Baker, as receivers of the International & Great Northern Railway Company, and Duval West and A. R. Ponder, as receivers of the San Antonio, Uvalde & Gulf Railroad Company. No service was had upon the Chicago, Rock Island & Pacific Railway Company, which was dismissed. The death of Cecil A. Lyon, coreceiver of the International & Great Northern Railway Company, was suggested and the cause discontinued as to him; it being shown that J. A. Baker became sole receiver. It was made to appear that Duval West terminated his authority as coreceiver of the San Antonio, Uvalde & Gulf Railroad Company, and that A. R. Ponder became the sole receiver of the San Antonio, Uvalde & Gulf Railroad Company. The suit was discontinued as to Duval West. There was no jury. Judgment was rendered against the appellant and in favor of A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railroad Company, and Jas. A. Baker, receiver of the International & Great Northern Railway Company. The original petition alleged the delivery to OWOSSO MFG. CO. v. CHICAGO, R. I. & the common carriers sued, upon a contract P. R. CO. et al. (No. 6037.) (Court of Civil Appeals of Texas. San Antonio. 1. APPEAL AND ERROR 671(5) RECORD EVIDENCE. A letter in evidence, construed as one of agency, not being in the record, the finding of agency, with a circumstance tending to support it, cannot be disturbed, though there is evidence tending to show prior different and incon evidenced by a bill of lading by the terms of which the goods were to be delivered to appellant, the shipper, at Viola, Tex., and that the goods were neither delivered to the shipper by the defendant common carriers nor paid for by them, though delivery or payment was demanded. The receivers for the International & Great Northern Railway Company and the San Antonio, Uvalde & Gulf Railroad Company generally and specially excepted to the petition and filed general denials. It was specially answered that the bill of lading contained a provision absolving the defendant The shipper suing for conversion, by de-carriers from liability for goods after unloadlivery other than to shipper's order, contrary to the bill of lading, has the burden not only of showing this, but also that he was injured thereby. sistent relation. 2. CARRIERS mm132 3. APPEAL AND ERROR 704(2) - RECORDEVIDENCE. The finding against the plaintiff on a fact which he had the burden of establishing cannot be disturbed on appeal; the record not containing affirmative evidence of the fact. Appeal from Bexar County Court. Action by the Owosso Manufacturing Company against the Chicago, Rock Island & Pacific Railroad Company and others. From an adverse judgment, plaintiff appeals. Affirmed. · H. M. Aubrey, of San Antonio, for appellant. Mason Williams, of San Antonio, for appellees. SWEARINGEN, J. The appellant, Owosso Manufacturing Company, brought this suit to recover $650 damages for conversion of wooden crates shipped by the appellant, but never ing at a nonagency station, which Viola, Tex. the destination, was. It was further answered that the crates were delivered to an agent or representative of appellant at a destination directed by the representative of appellant. Upon request for findings of fact the trial court found that the freight was delivered to the common carriers as alleged; that the bill of lading was issued to shipper's order and described the merchandise; that the goods were transported and delivered to an agent of the appellant at a destination ordered by said agent; and further found that appellant suffered no damage by reason of the delivery. Three assignments are presented, all of which complain that the judgment is contrary to the evidence for the reason that the delivery was made, without authority, to A. A. Whitney, who was not the agent of appellant, and that such unauthorized delivery was a conversion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2, 3] Then again the trial court found as a fact that appellant suffered no loss by this delivery to Whitney. There is no evidence that appellant never received the crates; nor is there any evidence that appellant never received payment from some one for the crates. Appellant alleged that the carrier never paid for nor delivered the crates to it. The court found that the delivery was to appellant's agent. If true, appellees are absolved. There is no positive testimony that this finding is not correct as above shown. But if this finding of the trial court were incorrect, and we were authorized by the record to so hold, a reversal of this case would be restrained by the entire absence from the statement of facts of any evidence to prove that appellant was not paid for its goods by Whitney or some other purchaser. The burden was upon appellant to establish this fact. No such evidence appears in the record. On the contrary, the trial court found that appellant suffered no loss by the delivery to Whitney. We are bound by this finding of fact in the absence of affirmative evidence to the contrary. [1] As has been stated, the trial court found | represent appellant as its agent to receive the as a fact that Whitney was an agent of ap- freight at destination. pellant with authority to receive the freight, and that said agent did receive the freight at its authorized destination. This finding seems to have been excepted to. The statement of facts before us is so obviously incomplete that we are not able to declare that the finding complained of has no evidence to support it, though the statement discloses a conflict upon the issue of agency; for instance, the evidence would sustain a finding that appellant sold the goods to Whitney, the sale to become effective when the goods were paid for, until the payment the goods to remain the property of the owner of the bill of lading, the testimony to that effect being the bill of lading which bound the carriers to deliver the goods to the order of appellant at destination, and the further fact that a draft for the amount of the purchase price was drawn on Whitney with the bill of lading attached. This evidence proves that the relation between appellant and Whitney was that of seller and buyer, which relation is repugnant to and inconsistent with the relation of principal and agent. Closner & Sprague v. Acker, 200 S. W. 421, and authorities therein cited. Had Whitney paid the draft and obtained the bill of lading, he would have acquired the right to receive the freight as owner, but not as agent. On the other hand, the trial court had before it a letter from appellant to Whitney, which was construed by the appellees as written authority from appellant for Whitney to receive the goods without presenting the bill of lading. This letter is not shown in the statement of facts. The construction placed upon the letter just mentioned by the carriers is corroborated by the fact found by the trial court, and supported by ample testimony, that appellant was notified of the delivery to Whitney promptly, but made no objection to said delivery for nearly a year, jection to said delivery for nearly a year, though there was continuous correspondence in reference to demurrage claimed by the delivering carrier. It appears probable that when the bill of lading was issued, appellant considered that the relation between it and Whitney was that of vendor and purchaser; but that the relation was changed prior to the arrival of the shipment, and that the letter mentioned, but not copied in the statement of facts, evidenced that changed relationship. At any rate, in order to reverse the trial court's finding of the fact of agency, it is necessary for the record to show affirmatively that the said letter did not authorize the trial court's finding as a fact that the letter authorized Whitney to A carrier is bound by a bill of lading to shipper's order to deliver the goods to the shipper's order only, and a delivery not to shipper's order is a conversion; if this conversion causes loss to the shipper, the carrier becomes liable for the damages proximately caused by such conversion. G., C. & S. F. Ry. Co. v. Ada Clark, 2 Willson, Civ. Cas. Ct. App. § 512; Trice v. Miller, 3 Willson, Civ. Cas. Ct. App. § 440; H. & T. C. R. R. Co. v. Adams, 49 Tex. 757, 758, 759, 30 Am. Rep. 116; Southern Pacific v. Maddox, 75 Tex. 309, 12 S. W. 815; Railroad Co. v. Seley, 31 Tex. Civ. App. 158, 72 S. W. 89; Railroad Co. v. Belton Oil 158, 72 S. W. 89; Railroad Co. v. Belton Oil Co., 45 Tex. Civ. App. 44, 99 S. W. 430; Express Co. v. Hertzberg, 17 Tex. Civ. App. 100, 42 S. W. 795; Express Co. v. Critzer, 42 S. W. 1017; Williamson v. Railroad Co., 138 S. W. 807; Railroad Co. v. Hall & Brown, 23 Tex. Civ. App. 211, 56 S. W. 140, 142; Railroad Co. v. Bank, 77 Ark. 482, 92 S. W. 522, 113 Am. St. Rep. 160; G., C. & S. F. Ry. Co. v. Freeman, 4 Willson, Civ. Cas. Ct. App. & 246, 16 S. W. 109; Missouri, I. & M. Co. v. T. P. Ry. Co., 198 S. W. 1067. But the trial court has found that there was no conversion, and has also found that there was no loss. The evidence in the statement of facts before us does not authorize us to reverse those findings. We overrule the three assignments, and affirm the judgment. (274 Mo. 543) JANUARY v. MARLER et al. (Supreme Court of Missouri. (No. 18879.) 17, 1918.) HOMESTEAD [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Family; Head of a Family; Housekeeper.] Bond and Faris, JJ., dissenting. Appeal from Circuit Court, County; E. M. Dearing, Judge. Suit by R. I. January against Levi Marler and another. From judgment for defendants, plaintiff appeals. Affirmed. before the trial. At the time of her death, Levi was 41 years old and Mary Ann Rebecca 45. She worked out of doors on the place, as well as in the house, and some of the little stock which they accumulated was owned by her. There was nothing in the evidence to indicate that she had or earned any money for her own support, otherwise than by her labor on the place. Her position there is described by one of appellant's witnesses as follows: "I know Levi Marler had control of the place; that he managed the place and supported her. He is an unmarried man; he never married." The evidence on both sides tends strongly to support this statement. The only evidence relied on by appellant to show any other relation is that she worked hard and accumulated Reynolds a little stock of her own while doing so. It is admitted by the parties in their briefs that the only question in this case is whether, at the time of the execution of the note which is the foundation of the judgment under which the appellant claims, Levi Marler was "a housekeeper or head of a family," within the meaning of that expression as used in section 6704 of the Revised Statutes of Missouri of 1909. He owned the place, and it was his home in the sense that it was his only domicile. His occupation of the premises must, in the absence of all explanation, be attributed to such ownership. and occupant he was, prima facie at least, in control of all the activities of his own household. It was his home, and, in the sense in which the term is used in the section Brewster & Brewster, of Ironton, O. L. Munger, of Piedmont, and R. I. January, of Centerville, for appellant. John H. Raney, of Patterson, and J. B. Daniel, of Piedmont, for respondents. BROWN, C. This is a suit in equity to set aside a deed from defendant Levi Marler to his sister, the defendant Mary Ann Rebecca Marler, dated May 8, 1912, and conveying 40 acres of land in Reynolds county, for fraud against plaintiff, a creditor. The facts are that on May 31, 1912, one Smith recovered, in the Reynolds circuit court, judgment against Marler for $208 upon a promissory note. He assigned this judgment to plaintiff on June 3, 1912. Plaintiff caused execution to be issued on the judgment and levied on this land, which was sold by the sheriff, and he became the purchaser, receiving a sheriff's deed therefor. On September 13, 1913, Mary Ann Rebecca Marler conveyed the land to the defendant Coleman, who knew the facts concerning the indebt edness. we have already cited, he was the housekeeper. The homestead statute seems to have been framed upon the principle that the home is a thing to be encouraged, and it requires no argument to demonstrate its public utility, and that the community in which the people live in their own homes is a fortunate one. This statute applies alike to "the homestead of every housekeeper or head of a family," and this description is repeated, carefully preserving its disjunctive form, in section The only question made by the parties is after section of the act, so that we are not whether or not the 40 acres of land involved at liberty to assume that the form was carein the controversy was the homestead of the lessly or awkwardly used. We must assume defendant Levi Marler at the time of the that the legislative intention corresponded conveyance to his sister. The land was of with the legislative words. The word "homelittle value, only 15 acres of it having been stead," as used in the foregoing quotation cultivated up to the time of the trial. It from the statute, had its ordinary meaning had sufficed as a home for the Marler family in such a connection, and that there should for 40 years. The father died 22 years before be no mistake in that respect the Legislature the trial, leaving a widow and five living defined it. as the "dwelling house and apchildren, and two children of a deceased purtenances, and the land used in connection daughter. The defendant Levi bought out therewith," to the extent specified. By the all the other heirs, and he and his defendant passage of the act this became the legal defsister continued to live on the land as their inition of the word "homestead" as used in home until the execution of the deed to de- it. We mention these particulars to infendant Coleman; the mother living with dicate that in case of this particular act them until her death, which occurred 6 years it is unnecessary to enter upon any discusFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-52 sion of the meaning of the words "head JJ., concur. BOND, J., dissents in separate of a family." The "family" is the person- opinion. FARIS, J., dissents. nel of the home, and it is unnecessary in this case to discuss the degrees of consanguinity, if any, to which the term may refer. In this particular case the owner's sister, an elderly maiden lady, resided with him, kept his house in order, and devoted her spare time to manual labor upon the 15 acres of ground which seems to have constituted the cultivated land of the homestead. These two were the family. She was supported from the land, and seems, during the many years she resided on it, to have accumulated a couple of horses, a cow, and two calves. The argument of the appellant was largely devoted to showing that she was independent of her brother in the matter of sustenance, and should have made her own home. The circumstances in evidence do not so impress us. They were sufficient to entitle the owner to the benefit of the homestead as to the land in question, and, for that purpose, his sister was a member of his family. "It is not necessary that he shall be a father or a husband." Grocery Co. v. Monroe, 142 Mo. loc. cit. 170, 43 S. W. 663; Broyles v. Cox, 153 Mo. 242, 248, 54 S. W. 488, 77 Am. St. Rep. 714; Bank v. Guthrey, 127 Mo. 189, 29 S. W. 1004, 48 Am. St. Rep. 621; Brown v. Brown, 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415; Forbes v. Groves, 134 Mo. App. 729, 115 S. W. 451. In the case last cited the question seemed to be whether the son or his aged father was at the head of the family. In deciding in favor of the former the Kansas City Court of Appeais remarked: "It is one thing to be honored as the patriarch of the family, and quite another to possess real and final authority in its affairs." The appellant cites Elliot v. Thomas, 161 Mo. App. 441, 143 S. W. 563, as an authority for the proposition that: "In order that an unmarried man may be entitled to a homestead in lands, exempt from execution on debt, there must be a person living with him on said premises, who is legally or morally depending on him for support, and one whom he does support. It is not enough that he may support the person, but the person must be wholly dependent on him for support." If there is anything in the elaborate and learned opinion in that case inconsistent with the doctrine we have stated and cases we have cited we are compelled upon principle and authority to disregard it. BOND, J. I dissent from the views expressed by the learned Commissioner in the opinion adopted in the above case in division No. 1. The learned Commissioner holds in that case that the sale, under execution, of land subject to a homestead, is wholly That it was void. To this I cannot agree. void as to the homestead, nobody doubts; but that it was void as to the remainder interest in the lands, beginning after the cessation of the homestead, cannot, in my opinion, be sustained in reason under the terms of the applicatory statute. I think the ruling should have been that, as to the homestead itself and the entire interests arising therefrom, the sale was a nullity, but as to the remainder estate, after the lapse of all homestead rights, the sale carried the title and subjected it to the payment of the debt upon which the execution and sale was had. My reasons are set forth in extenso in my dissenting opinion in the case of Armor v. Lewis, 252 Mo. loc. cit. 584, 161 S. W. 251 et seq. I think the contrary view was incorrectly ruled in banc in the principal opinion in that case. Subsequently two members of division No. 1 have held the argument in the dissenting opinion to be sound (Fields V. Jacobi, 181 S. W. loc. cit. 69), where, upon and Bond, JJ., concurred, for the reasons the presentation of a similar point, Blair stated in the dissenting opinion in Armor v. Lewis. In view of that action, I dissented from the ruling recommended by the Commissioner in the present case, in order that the matter might be re-examined by the court in banc. GRAVES, C. J. I fully concur in the opinion of the Commissioner. The only question in the case, as said by the Commissioner, is whether or not this 40 acres of land was, in fact, the homestead of Levi Marler, when he made the deed to his sister. If it was his homestead, he could convey it without committing a fraud against his creditors, even though they be judgment creditors. That the owner of a homestead can convey the same without being subject to the charge of a fraudulent conveyance is too well settled in Missouri to require further comment. In this case there was but 40 acres of land, and it was of but little value. It was fully within the quantity and value fixed by the homestead law. Such being the case, an ac The judgment of the circuit court is af- tion in equity to set aside the homesteader's firmed. RAILEY, C., concurs. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court en banc. GRAVES, C. J., concurs in separate opinion, in which WOODSON, J., deed to this 40 acres, on the ground of fraud as against his creditors (which is the present action), cannot be sustained. There is no question about a surplus over and above the statutory homestead involved in this action, for the good reason that the land conveyed (all the land the grantor owned) was less, both in quantity and value, than the allow |