that the said Kempner now retains in his pos- plus proceeds from the sale of the land to session the said sum of $410.30, which was placed with him for the protection of said note No. 7 and the interest on said notes Nos. 8, 9, and 10, which matured December 31, 1911."

such person as the sheriff might conclude was the equitable owner of the land and entitled to such excess. Who was entitled to such excess was a question of law which should have been determined and decreed by the trial court; and, being a judicial question, that court committed fundamental error when it undertook to delegate to the sheriff the decision of that question. Such decision involves the exercise of a judicial function, which the court could not delegate to the sheriff.

We agree with counsel for appellee that the facts stated in the plea do not constitute what is termed in law a payment, and appellant did not allege and prove that Mrs. Kempner was insolvent, and therefore in equity he was entitled to have the special deposit referred to in the plea treated as a payment upon the notes. In fact, the record Therefore that portion of the judgment of indicates that it will be to appellant's bene- the trial court relating to the disposition of fit for the judgment in this case to be af- whatever surplus may remain after paying firmed and be paid through the foreclosure the judgment, interest, and costs will be set sale of the land, appellant's interest in which, aside, and the judgment so reformed as to it seems, has been sold in the bankruptcy require the sheriff to pay such surplus to proceeding and purchased by B. E. Norvell, appellant; and, as thus reformed, the judgwho sought to intervene. Now, if this course ment will be affirmed. is pursued, then Mrs. Kempner will be owing Reformed and affirmed. appellant $410.30, the amount of his special deposit, and there is nothing in the record to indicate that he cannot compel payment of the same. And it is undoubtedly true that, if he collects that money from Mrs. Kempner, the affirmance of this judgment will result in no loss to him, if the judgment is satisfied with property in which he now has no interest; but, on the contrary, it would seem quite to his advantage. If he has been divested of all of his interest in the land involved, we can readily see why the purchaser of his interest would be interested in having the special deposit referred to treated as a payment upon the plaintiff's debt, because such payment would inure to his benefit, whereas, if the deposit is not so treated, then it belongs to appellant, and he is that much better off than he would be if it was credited on his indebtedness to the plaintiff.

[4, 5] 3. Conceding that counsel for appellant are correct in the contention that the trial court committed error when it admitted in evidence proof of the bankruptcy proceedings against G. R. Brown, including the sale of his interest in the land here involved, the only harm that resulted therefrom to appellant is the failure of the decree to award to him the remainder of the proceeds of the foreclosure sale after paying the judgment and costs, and that error will be corrected in this court. For some reason, not apparent to this court, the trial court struck out Norvell's plea of intervention; and, after doing so, there was no pleading before the court that authorized proof of what had been done in the bankruptcy court. After that plea was stricken out, the litigation was between the plaintiff bank and the defendant G. R. Brown, and the rights of no one else should have been considered. But, even if it had been proper to consider such rights, it was wholly improper for the trial court to incorporate in its decree a provision directing the sheriff, upon any contingency, to pay the sur

BURTON & BEARD v. NACOGDOCHES
CRATE & LUMBER CO.

(Court of Civil Appeals of Texas. Texarkana.
Nov. 20, 1913.)

1. SALES (§ 161*) - CONTRACTS

TION.

CONSTRUC

Where defendants ordered a car of crates to be shipped to third persons, the sellers, by delivering the shipment to the carrier in the time stipulated. comply with the contract and are entitled to recover the purchase price, even though the shipment is so delayed that the consignees refuse to receive it.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 377-380; Dec. Dig. § 161.*] 2. SALES (§ 82*)-CONTRACTS-CONSTRUCTION. third person and charged to defendant, the purWhere goods are ordered to be delivered to a chase price cannot be collected until delivery.

[Ed. Note.-For other cases, see Sales, Cent.
Dig. $$ 229-233; Dec. Dig. § 82.*]
3. SALES (§ 79*)-CONTRACTS-“F. O. B.”
Where a defendant ordered one
car of
sion merely indicated that the price was to be
crates complete 634 f. o. b. Magnolia, the expres-
64 cents, including freight to Magnolia, and
not that the goods were to be delivered at that
place.

Dig. 88 214-216; Dec. Dig. § 79.*
[Ed. Note. For other cases, see Sales, Cent.

For other definitions, see Words and Phrases, vol. 3, p. 2636; vol. 8, p. 7659.]

Appeal from Nacogdoches County Court; June C. Harris, Special Judge.

ber Company against Burton & Beard. From Action by the Nacogdoches Crate & Luma judgment for plaintiff, defendant appeals.

Affirmed.

King & King, of Nacogdoches, for appellant. V. E. Middlebrook and Ingraham & Hodges, all of Nacogdoches, for appellee.

HODGES, J. In 1905 the appellee was engaged in the business of manufacturing and selling crates and fruit baskets at Nacogdoches, Tex. In July of that year it re

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ceived the following order from the appel- son & Williams at Magnolia, Ark., and lants, Burton & Beard:

"Mt. Selman, Texas, July 6, 1905. Nacogdoches Crate & Lumber Company, Nacogdoches, Texas-Gentlemen: Inasmuch as the phone service was so poor this afternoon when we were trying to talk to you, we thought we had better write you also. The order was as follows: Ship to Gibson & Williams at Magnolia, Arkansas, one car 8,000 pine head crates complete at 64¢ f. o. b. Magnolia. Ship at once and follow with tracer. Send us B/L here, also invoice. We will want about forty days on this car in order to allow parties time to sell their fruit. Your prompt attention will oblige Burton & Beard.

"P. S. If you can allow us a brokerage on this car same will be appreciated."

that, this contract not having been complied with, the appellants incurred no liability; that the proper remedy of the appellee was against the railway company for damages for conversion. The trial court did not put that construction on the contract but held that the appellee had complied with its agreement when it delivered the goods to the carrier within the time stipulated by the parties. In this we think the court was correct. Grief & Bro. v. Seligman, 82 S. W. 533; Orthwein's Sons v. Wichita Mill & Elevator Co., 32 Tex. Civ. App. 600, 75 S. W. 364. It is true, as contended by counsel for the appellants, that, when the parties to a contract of this kind stipulate that the seller shall deliver the goods to the consignee at some particular destination, the purchase price cannot be collected till the goods are delivered in accordance with the contract. According to the terms of the letter relied on as showing the contract between these parties, the goods were to be consigned to Gibson & Williams at Magnolia, Ark., and time was given to the appellants for the payment of the purchase price.

As indicated in the above letter, there had been some previous negotiations between the parties over a long distance telephone, but it is not contended that the letter quoted above does not contain substantially all the terms and conditions of the contract between the parties. The evidence shows that the goods were delivered by the appellee to the carrier at the point of shipment within the time contemplated by the parties, consigned to Gibson & Williams as directed. The following is introduced in evidence as the substance of the way bill: "Houston East & West Texas Railway Company. Date: 7/11/1905. Series: S. W. No. 6. 1st via Shreveport, via Texas, via Arkansas, Cotton Belt. Weight at Nacog-firmed. doches: 61,800. Tare: 37,000. Net: 24,800. Car initials: S. W. No. 5132. Shipper: N. C. & L. Co. Consignee and destination: Gibson & Williams, Magnolia, Ark. Car crate weight: 30,000. Date and authority: 22. Freight charges: $66.00.”

For some reason, due probably to the fault of the railway company, the goods did not reach their destination as soon as Gibson & Williams thought they should, and upon their arrival the consignees declined to receive them. Payment being demanded and refused, the appellees brought this suit in the county court against the appellants, Burton & Beard, and the Houston East & West Texas Railway Company for the purchase price of the goods. A trial before the county judge without a jury resulted in a judgment for the appellees against the appellants, Burton & Beard, for the amount sued for. It appears that, upon exceptions interposed by the railway company in the trial court, it was dismissed from the suit.

[3] The expression "at 64¢ f. o. b. Magnolia" does not necessarily imply that the goods were to be delivered f. o. b. at Magnolia. It merely, indicated that the price was to be 64 cents with the freight allowed.

The judgment of the county court is af

WILLETT v. HERRIN et al.
(Court of Civil Appeals of Texas.
Oct. 17, 1913.)

Galveston.

1. JUSTICES OF THE PEACE (§ 141*)—APPEAL— JURISDICTION.

The county court acquires no jurisdiction upon appeal in an action originating in the justice court but over which that tribunal was with. out jurisdiction.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. § 141.*]

2. JUSTICES OF THE PEACE (§ 44*)-ACTIONSPLEADING.

In an action in justice court, the jurisdictional amount is determined by the amount shown in the statement of the cause of action; hence, where the petition stated a cause of action for the recovery of $200 delivered to defendant under an agreement that he should repay on demand, the jurisdiction of the justice court is not ousted by the general averment of $500 damages for the defendant's refusal to pay.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.*]

3. JUSTICES OF THE PEACE (§ 91*)-ACTIONSJURISDICTION-PETITION.

[1, 2] There are several assignments of error, but all of them in substance complain of the action of the court in rendering a judgment against the appellants in view of the evidence presented. It is contended that A petition in an action in justice court, alunder the undisputed facts the contract be- leging that plaintiff delivered $200 to defendant, receiving his obligation in writing to repay the tween the parties was one by which the sell-money on demand, with interest, but that deer bound itself to deliver the goods to Gib-fendant failed to repay the same, states a cause *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexce

of action upon contract, and the claim of inter- PLEASANTS, C. J. This suit was brought est, being for interest eo nomine and not as dam- by appellees against the appellant in a jusages, does not oust the justice of jurisdiction. tice court of Newton county. Plaintiffs' orig[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 307-323; Dec. Dig. §inal petition filed in the justice court on 91.*] August 29, 1911, contains the following allegations and prayer: "That heretofore, to

4. JUSTICES OF THE PEACE (§ 159*)-APPEAL DEFECTIVE BOND-EFFECT-REVIEW-HARM- wit, on the 30th day of August, 1907, deLESS ERROR.

Where plaintiffs' cause of action was dismissed by the justice and the only judgment against them was for costs, no bond is required to perfect an appeal to the county court; and hence the defendant cannot move to dismiss the appeal because the bond given was defective. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. 88 544, 550-578; Dec. Dig. § 159.*]

5. JUSTICES of the Peace (§ 45*)—ACTIONS— JURISDICTION-PLEADING.

In an action in justice court, where defendant set up a counterclaim alleging several amounts, the total of which exceeded $200, the counterclaim was beyond the jurisdiction of the justice, even though defendant prayed for a recovery of only $200.

[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 173-175; Dec. Dig. § 45.*]

6. JUSTICES OF THE PEACE (§ 174*)-REVIEWHARMLESS ERROR.

was be

Where defendant's counterclaim yond the jurisdiction of the justice court, defendant cannot complain that on appeal to the county court that tribunal improperly allowed plaintiff to interpose a defense not pleaded in the justice court.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]

7. APPEAL AND ERROR (8 742*)-REVIEW-As

SIGNMENTS.

Assignments of error complaining of the charge, when not followed by propositions subjoined to a sufficient statement to explain the propositions, as required by rule 31 (142 S. W. xiii), will not be considered on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 8. INTEREST (§ 31*)-RECOVERY-AMOUnt.

Where an obligation providing for the return of money did not stipulate any rate of interest, the obligee can recover only the legal rate of 6 per cent.

[Ed. Note.-For other cases, see Interest. Cent. Dig. §§ 64-67; Dec. Dig. § 31.*] 9. APPEAL AND ERROR (§ 1068*)-REVIEW HARMLESS Error.

In an action on an obligation providing for the payment of $200, without mention of interest, the error of the court in charging that the jury might find for plaintiffs, with 10 per cent. interest, is harmless, where the record does not show that they did so find and the judgment for plaintiff only carries 6 per cent.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]

Appeal from Newton County Court; W. E. Gray, Judge.

Action by Mrs. S. P. Herrin and others against H. L. Willett, begun in justice court, where the cause was dismissed. From a judgment for plaintiff on appeal to the county court, defendant appeals. Affirmed.

Forse & Wigley, of Newton, for appellant. Wightman & Hancock, of Newton, for appellees.

fendant executed and delivered to plaintiff

his obligation in writing to pay to plaintiff in the sum of $200, which obligation was given for $200 in cash, which plaintiff delivered to defendant to be kept for plaintiff by defendant subject to her order; that at the time of receiving said $200 defendant agreed to pay plaintiff 10 per cent. interest on said $200 for such time as he should keep said money; that said obligation in writing is hereto attached and made a part hereof; that said sum of $200 and interest thereon at 10 per cent. is now due and unpaid; and that defendant, though often requested, has hitherto failed and refused and still refuses to pay the same or any part thereof, to plaintiff's damage in the sum of $500. Wherefore plaintiff prays the court that defendant be cited to appear and answer this petition and that she have judgment for her debt in the sum of $200 and interest and cost of suit, and for such other and further relief, special and general, in law and in equity, and that she may be entitled to and in duty bound will ever pray," etc.

The defendant on the day the cause was called for trial in the justice court filed a motion to dismiss the suit on the ground that the amount in controversy was beyond the jurisdiction of the court: He also filed an answer containing a general demurrer and a special exception challenging the petition on the ground that it showed on its face that plaintiffs' cause of action accrued more than four years before the suit was filed, a general denial, and the following plea of offset or counterclaim: "Now comes the defendant in the above cause, by his attorney, and says that the said plaintiff before and at the time of the commencement of this suit, to wit, on the 29th day of August, 1911, was and still is indebted to this defendant in the sum of $200 for a doctor bill for 39 trips made by the defendant to visit the plaintiffs' child while sick, which is reasonably worth $5 per trip, which makes the sum of $195, by cash paid by defendant to plaintiff, $10, for medicine sold and delivered to the plaintiff by defendant, $3.90. That said visits were made to see the plaintiffs' child, while sick, at the special instance and request of plaintiff, and that said medicine was sold and delivered to the plaintiff by the defendant at the special instance and request of the plaintiff, and that said $10 in cash was paid to the plaintiff by this defendant at the special instance and request of the plaintiff; in consideration whereof the said plaintiff promised and became liable and bound to pay this defendant the sum of $200

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

for prices charged therefor, which said sum of money is so due and unpaid, and it is yet due this defendant by the plaintiff, as above set forth, which exceeds the damages sustained by the plaintiff by reason of the matters alleged in their petition, and out of which said sums this defendant is ready and willing, and hereby offers, to offset and allow to the said plaintiffs the full amount of their said damages, and of this he is ready to verify. Wherefore the defendant prays judgment of the court, that the plaintiffs take nothing by their suit, and that this defendant do have and recover from them judgment for all costs in this behalf expended."

ments of error in detail but will content ourselves with a decision of the material questions presented by appellant's brief. It is first contended that the trial court erred in not sustaining appellant's motion to dismiss for want of jurisdiction because: First, the petition shows that the amount in controversy was $500, which amount is above the jurisdiction of the justice court; and, second, that the interest claimed in the petition was claimed as damages and not as interest eo nomine, and that such damages, added to the $200 claimed, produced a sum beyond the jurisdiction of the justice court.

[1] It is unnecessary to cite authority to sustain the proposition that if the justice court, in which the suit originated, was without jurisdiction, the county court acquired no jurisdiction by the appeal, and the only question for us to determine is whether upon the face of the petition the amount in controversy was beyond the jurisdiction of the justice court.

[2] The only question upon this issue which presents any difficulty is whether the general allegation in the petition that by the failure and refusal of the defendant to pay the $200 and interest, in accordance with his contract, the plaintiffs were damaged in the sum of $500, coupled with the prayer of the

The justice court sustained the motion to dismiss for want of jurisdiction and entered the following judgment: "On this the 4th day of November, A. D. 1911, came on to be heard the above-entitled and numbered cause. The plaintiff appeared by attorney and announced ready for trial, whereupon came the defendant by attorney and pleaded to the jurisdiction of this court. After hearing said plea and argument of counsel, the court was of the opinion that the law is with the defendant, and that said plea in all things be sustained, and that said cause be dismissed for want of jurisdiction, and that the defendant recover of and from the plain-petition for general and special relief, shows tiff all costs in this behalf expended, for which let execution issue." Plaintiffs excepted to the judgment and gave notice of appeal to the county court of Newton county. Thereafter plaintiffs executed an appeal bond, and the transcript from the justice court was duly filed in the county court.

Defendant moved in the county court to dismiss the suit on the ground that the amount in controversy was beyond the jurisdiction of the justice court, and therefore the county court acquired no jurisdiction by the appeal, and also on the ground that the appeal bond was fatally defective because it misdescribed the judgment appealed from. Plaintiffs filed an exception to defendant's counterclaim or plea of offset on the ground that the amount claimed in said plea was beyond the jurisdiction of the justice court, and also excepted to said plea on the ground that the cause of action therein set up by defendant was barred by the statute of limitation of two years. They also pleaded a general denial and limitation of two years. The defendant excepted to the plea of limitation on the ground that it was not pleaded in the justice court.

The motion to dismiss and all of the exceptions presented by each of the parties were overruled by the court. The cause was tried with a jury and resulted in a verdict in favor of the plaintiffs for the sum of $129.20. Upon this verdict judgment was rendered in favor of plaintiffs for said amount, with interest from date of the judgment at the rate of 6 per cent. per annum.

We shall not discuss the various assign

that the amount in controversy was the sum of $500. It has been generally held that the amount shown in the statement of the cause of action, and not the amount for which recovery is sought in the prayer of the petition, must be looked to in determining the amount in controversy in a suit, and that the sum of the items shown in the statement of the cause of action, and not the general statement of the amount claimed to be due, will determine the question of what is the amount in controversy. Railway Co. v. Coal Co., 102 Tex. 478, 119 S. W. 294; Railway Co. v. Hood, 125 S. W. 983; Times Pub. Co. v. Hill, 36 Tex. Civ. App. 389, 81 S. W. 806; Oppenheimer & Co. v. Fritter, 3 Willson, Civ. Cas. Ct. App. § 263. In all of these cases, except the one last cited, the question was whether, when the sum shown to be due in the statement of the cause of action was above the jurisdiction of the court, the plaintiff could confer jurisdiction upon the court by praying for a sum within the jurisdiction. Whatever conflict on this question there may have formerly been in the authorities, it is now well settled that the prayer of the petition will not control, and that the amount in controversy is the sum of the indebtedness shown in the statement of the cause of action. In the case last cited this rule was applied where the petition, as in the instant case, contained in addition to a specific statement of the indebtedness due by the defendant, which was an amount within the jurisdiction of the court, a general allegation that, by the failure of the defendant to pay the indebtedness so due, the plaintiff was

damaged in a named sum which was above S. W. 375. No appeal bond having been rethe jurisdiction of the court. The court in that case said: "This suit being upon a promissory note, it is manifest that plaintiff could recover no more than legal interest as damages, and in fact his suit is brought to recover no more than the principal and interest of the debt. The ad damnum allegation in the petition claiming $1,000 damages is surplusage and should have been so treated. The real amount in controversy was the debt and interest thereon, and of this amount the court had jurisdiction." This decision was approved and followed by the Court of Appeals for the Fifth District in the case of Ellis v. Bank, 38 Tex. Civ. App. 619, 86 S. W. 776, in which case a writ of error was refused by our Supreme Court.