[Ed. Note. For other cases, see Trial, Cent. Dig. 336; Dec. Dig. § 141.*] Error from District Court, Dallas County; Kenneth Foree, Judge. Action by Hexter & Kramer against the Robinson Seed & Plant Company. There was a judgment for plaintiffs, and defendants bring error. Affirmed. Short & Feild, of Dallas, for plaintiff in error. Thompson, Knight, Baker & Harris, of Dallas, for defendant in error. 4. TRIAL ( 141*)-EVIDENCE-INSTRUCTIONS. premises for the unexpired term of the lease Where the liability of defendant and the to tenants satisfactory to defendants in eramount thereof were established by undisputed testimony, it was proper to direct a verdict for ror, with the reservation by defendants in erplaintiff. ror at all times that plaintiffs in error were to be primarily liable for the rental of the premises under the exact terms of the lease. The plaintiffs in error did not secure tenants who would accept the premises for the unexpired portion of the lease, but did secure two tenants, either one of whom would have occupied the premises for a period of three years, including the unexpired portion of the lease, at a rental of $250 per month for the full period of time. Defendants in error were willing for such tenants to occupy the building at $250 per month for the unexpired portion of the lease, but demanded a greater rental after that time, which the prospective tenants declined to pay. Matters standing thus, and the rental for August, 1910, having been paid, plaintiffs in error declined in writing to pay any further rent, and abandoned the premises and repudiated the lease, assigning as a reason defendants in error's refusal to accept either of the prospective tenants. Subsequently defendants in error, in the exercise of the utmost diligence, leased the premises for a part of the unexpired portion thereof, crediting plaintiffs in error with the full amount collected, after deducting the expense of making certain changes in the premises required by the tenant and necessary to secure him, but which was insufficient to pay the agreed rental for the unexpired term. The balance plaintiffs in error refused to pay, and this suit was filed for said amount and resulted as stated. Among other provisions in the lease is the following: RASBURY, J. Defendants in error sued plaintiffs in error for a sum of money alleged to be the amount due upon a lease of certain premises in the city of Dallas, entered into between plaintiffs in error and Sockwell and Beall, who, before the rents accrued, sold the premises and assigned the lease to defendants in error, and an item of expense for repairs incurred on behalf of plaintiffs in error, and which premises plaintiffs in error vacated before the expiration of the term. The effect of plaintiffs in error's answer was to admit the lease of the premises and the failure to pay the rent for the unexpired term, but a denial of liability therefor on the ground that, after they ceased occupying the premises, defendants in error agreed that plaintiffs in error might sublet the premises to another satisfactory to defendants in error, and that such a tenant was secured; and, further, that plaintiffs in error surrendered the premises for the unexpired term, and defendants in error accepted the surrender and took possession of the premises, and for that reason also were not entitled to recover. There was a trial before jury; but at the conclusion of the testimony the court in structed a verdict for defendants in error, which was returned by the jury, and, from the judgment entered upon said verdict, this appeal is taken. We deduce from the evidence the following essential and undisputed facts: Plaintiffs in error rented the premises for a period of five years, beginning November 1, 1906, for the gross sum of $13,200. The rental was payable in installments of $200 per month for three years, or until November 1, 1909. For the remaining two years it was to be paid in installments of $250 per month. Plaintiffs in error occupied the premises under the lease until the latter part of June, 1910, when they ceased business and vacated the premises. By the terms of the lease plaintiffs in error did not have the right to sublet the premises; but when they ceased business they asked and received permission from defendants in error, who, subsequent to the execution of the lease, purchased the property and held the lease by assignment, to sublet the said covenants [1] It is first urged that the facts related show a surrender of the leased premises and an acceptance of the surrender by defendants in error, and that hence the peremptory instruction for defendants in error was erroneous. We think not. The most the evidence shows is that plaintiffs in error, when they ceased business, sought and secured the consent of defendants in error to sublet the premises for the unexpired term of the lease. This they were unable to do. It is true they secured two parties satisfactory as tenants who would take the premises for the unexpired term and pay the same rental that plaintiffs in error were paying, but only on condition that defendants in error would ex-nary diligence to relet the premises after retend the lease for a period of nearly two suming control of the premises, which is the years beyond the unexpired term, and for the correct rule; but the precise point made is same rental. It was upon the refusal of de- that the refusal of defendants in error to acfendants in error to so extend the lease be- cept the two proposed tenants we have menyond the agreed term at the same rental that tioned was a failure to exercise ordinary plaintiffs in error based their right to repudi- care, and released plaintiffs in error from all ate the lease and abandon the premises, with- liability. We think the contention unsound, out the consent of defendants in error, and since said tenants would accept the premises here urge the right in law so to do. The only on condition that the unexpired lease precise point has been decided adversely to was extended for a long period of time for the contention in Massie v. State National the same rental. Such an extension would Bank, 11 Tex. Civ. App. 280, 32 S. W. 797. undoubtedly have prevented loss to plaintiff In that case the contention in substance was in error, but on the other hand, would have that when the lessee abandons the premises, resulted in a loss to defendants in error of although without the consent of the lessor, what they considered the increase in rental and with notice that the lessor will hold him value of the leased premises. This, defendresponsible for the rent for the full term, and ants in error were, of course, not bound to thereafter lessor assumes charge of the prem- do, either by the lease or any rule of law. ises and rents them for a less amount than the agreed rental, such facts will in law constitute a surrender of the lease and the premises and an acceptance thereof by lessor. The appellate court held such was not the rule, and, in passing upon the issue, said: "True, the landlord may, if he choose, decline to meddle with the property, and at the end of the term sue for the rent but he is not to be driven to this course, and run the risk of damages to his property and the insolvency of his tenant. He does not forfeit his right to compensation for the violation of the contract by taking possession of the abandoned house, nor can the lessee be permitted to shield himself from all recovery under an act which indeed lessened the loss that he had caused." If, then, taking possession of the premises by the lessor after repudiation of the lease and an abandonment of the premises by the lessee does not in law constitute a mutual surrender, which is necessary to effect such result, it cannot be intelligently urged that a refusal to lease the premises beyond the unexpired term at a rental not acceptable to the lessor will accomplish as much. After all, it occurs to us it is but a matter of simple contract relation by which the rights of the parties are to be determined. [2] By the contract of lease in the instant case, plaintiffs in error were bound for the rent for the unexpired term, and, after they abandoned the premises, it was the duty of the defendants in error to relet the premises for the unexpired term to the best advantage they could in the exercise of ordinary diligence in that behalf. This they did. The lease itself provides the very rule quoted, and confers upon the defendants in error the right in case of abandonment to resume possession of the premises and relet them for the unexpired term for the best rent obtainable for the benefit of plaintiffs in error, who, by the same contract, agree to make up any difference between the rental so received and that agreed to be paid. Such was the judgment rendered. [3] It is next urged under the second assignment of error, in effect, that it was the duty of defendants in error to exercise ordi [4] It is further urged that the court erred in directing a verdict for defendants in error for the reason that the evidence did not conclusively establish the amount sued for. The testimony concerning how much rent was received after plaintiffs in error abandoned the premises, and how much was expended in repairs, which were necessary in order to relet the premises, and the diligence exercised to relet the premises, was undisputed, and without attempted contradiction; and consequently there was no conflict in the testimony to be referred to the jury for its solution, and the course pursued by the trial court obviously proper. The judgment is affirmed. INTERNATIONAL & G. N. RY. CO. et al. v. 1. APPEAL AND ERROR (§ 877*)-PERSONS ENTITLED TO ALLEGE ERROR. Where trial of an action against a railroad company for damages to a shipment of goods was not delayed, and none of the company's rights were prejudiced, it cannot complain that the seller was allowed to intervene and try out his right to part of the recovery, though the plea of intervention failed to show that the interveners were necessary or proper parties; for, if the railroad company is liable, it is immaterial to whom satisfaction be made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*1 2. CARRIERS (§ 154*)-CARRIAGE OF GoodsLIABILITY. While, in consideration of a lower rate, a carrier may limit its liability, a carrier is liable in case of negligent injury to an interstate of the goods at destination in the condition in shipment for the difference between the value which they would have been delivered and their condition as delivered, though the bill of lading issued under the Carmack Amendment (Act Stat. 593 [U. S. Comp. St. Supp. 1911, p. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 1307]) restricted its liability to the invoice price, where it did not appear that the shipper received any consideration on account of limita- | of the action of the trial court in overruling tion of liability. appellants' exception and plea in abatement to the plea of intervention filed by Vacarro Bros. & Co. It may be conceded that inter [Ed. Note.-For other cases, see Carriers, Cent. Dig. §8 641-645, 667; Dec. Dig. § 154.*] 3. CARRIERS (§ 163*)-CARRIAGE OF GOODS-veners had no interest in the cause of action LIABILITY-DEFENSES. Where a carrier claims a limitation of liability, it has the burden of proving that the shipper received some consideration for his consent to the limitation. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 722-725; Dec. Dig. § 163.*] Appeal from Robertson County Court; J. L. Goodman, Judge. Action by Abe Rathblath against the International & Great Northern Railway Company and another, in which Vacarro Bros. & Co. intervened. From a judgment for plaintiff and for the intervener, defendants appeal. Affirmed. Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellants. J. Felton Lane, of Hearne, and W. W. Wilson, of Calvert, for appellee. KEY, C. J. Abe Rathblath, as plaintiff, brought this suit against the International & Great Northern Railway Company and the Texas & Pacific Railway Company seeking to recover damages in the sum of $652.50 for injuries to a car load of bananas shipped from New Orleans, La., to Calvert, Tex. In the answers interposed by the defendants they averred, among other things, that the shipment, being interstate, was controlled by the act of Congress regulating interstate commerce, and especially by what is know as the Carmack Amendment thereto, and alleged that, by the terms of the bill of lading issued by one of the defendants and accepted by the plaintiff, it was stipulated that, if there was any loss or damage, the amount thereof was to be computed on the basis of the value of the property, the same being the bona fide invoice price thereof at the time and place of shipment, which value and invoice price was $202.95. Thereafter Vacarro Bros. & Co. filed a plea of intervention, in which they sought to recover from the plaintiff, Abe Rathblath, the sum of $202.95, the value of the car of bananas, and prayed that, if the plaintiff recover against the defendants, the latter be required to pay $202.95 of said recovery to interveners in satisfaction of their claim against the plaintiff. The defendants interposed an exception and plea in abatement to the plea of intervention, which were overruled. There was a jury trial, resulting in a verdict and judgment for the plaintiff against both of the defendants for $420.45, and for interveners against the plaintiff in the sum of $202.95, to be paid out of his recovery against the defendants, and both of the defendants have appealed. asserted by the plaintiff against the defendants, and that, if the plaintiff had objected to the plea of intervention, it would have been reversible error not to sustain such objection. But, inasmuch as the record fails to indicate that the prosecution of the plea of intervention in any wise delayed the trial of the case, and as it clearly appears that no harm resulted therefrom to the defendants, we de cline to reverse the case, even though the plea of intervention failed to show that the interveners were necessary or proper parties. If appellants are liable, it is wholly immaterial to them whether they make satisfaction to the plaintiff for the interveners, and therefore we see no reason why they should be heard to complain. In fact, it seems to us that the acquiescence of the plaintiff in the course pursued by the interveners is almost equivalent to an assignment by him of so much of the cause of action as would be necessary to discharge his indebtedness to the interveners. He filed no answer to the plea of intervention, and he testified as a witness that he bought the shipment of bananas in question from the interveners and owed them therefor the amount for which they sued, and he did not object to their plea of intervention. Such being the conditions as the case is presented in this court, and as the judgment protects appellants from more than one recovery, we see no sufficient reason why the case should be reversed on account of the rulings complained of in the first assignment of error, and therefore that assignment is overruled. [2, 3] The trial court instructed the jury, in substance, that the measure of damage was the difference at Calvert, Tex., between the reasonable market value of the bananas in the condition in which they were delivered and what would have been their condition if there had been no negligent breach of the contract of shipment; and that charge is assigned as error. It is not denied that the charge complained of is in accordance with the general rule of the common law, but it is contended that a different rule should have been applied, because of the following stipulation in the bill of lading: "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of ed in writing by the shipper, or has been agreed lading, unless a lower value has been representupon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from [1] The first assignment of error complains negligence." The undisputed proof shows that the in- ment valid, it must be made to appear that voice price was $202.95, and, if the loss had the shipper or consignee obtained some charbeen computed upon that basis, the defend-acter of benefit as a consideration for the ants would not have been liable for the agreement. It is not contended in appellants' amount adjudged against them. In Railway brief, nor shown by the statements therein Co. v. Maddox, 75 Tex. 300, 12 S. W. 815, contained, that any benefit whatever accrued it was held that a common carrier was liable to the plaintiff as a consideration for the upon the basis of the value of the property agreement. In so far as it is made to appear at the place of destination, even though the from appellants' brief, he may have paid shipment was interstate, and the contract, in the same amount of freight that he would consideration of a reduced rate of transpor- have been required to pay if the agreement tation, limited the carrier's liability to a referred to had not been made. Therefore, fixed sum. In that case Chief Justice Stayton it not appearing that there was any considwrote an elaborate opinion, in which he con-eration for that agreement, and as the burceded that the ruling there made was in den rested upon appellants to show that fact conflict with decisions in other jurisdictions; in order to sustain the agreement, we hold and until the Carmack amendment to the act of Congress regulating interstate commerce, and the decisions of the Supreme Court of the United States construing that amendment, the Maddox Case has been uniformly followed in this state. In Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, the Supreme Court of the United States construed the Carmack amendment, and declared that its effect was to supersede all the regulations, policies, and decisions of any state upon the subject of the liability of interstate that the failure to do so renders the agreement void. And in reaching that conclusion we follow the decision of the Court of Civil Appeals for the Seventh District in Railway Co. v. Scott, 156 S. W. 294. There are some other questions presented in appellants' brief, all of which have been considered and decided against them. No reversible error has been shown, and the judgment is affirmed. Affirmed. common carriers. However, it was declared INTERNATIONAL & G. N. RY. CO. et al. v. RATHBLATH. (No. 5353.) (Court of Civil Appeals of Texas. Austin. Appeal from Robertson County Court; J. L. in that case, as it had often been declared before by that and other courts, that a common carrier cannot exempt himself from liability for his own negligence or that of his servants, though the rigor of his common-law liability might be modified through any fair, Action by Abe Rathblath against the Interreasonable, and just agreement with the ship-national & Great Northern Railway Company per which did not include exemption from and another. From a judgment for plaintiff, liability for negligence; and in the latter defendants appeal. Affirmed. regard the law was summarized as follows: "It has therefore become an established rule of the common law, as declared by this court in many cases, that such a carrier may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk." (Italics ours.) In support of the proposition thus announced, the court cited a long list of decisions; and we accept that proposition as a correct enunciation of the law upon the subject, but hold that appellants have not brought themselves within the class of cases there referred to, because, as the case is presented in appellants' brief, it does not appear that the agreement changing the common-law rule as to the measure of damages was made for the purpose of obtaining the lower of two or more rates, or was based upon any other valuable consideration. Perry & Woods, of Franklin, Doremus, Butler & Henderson, of Bryan, and Wilson, DabWilson, of Calvert, and J. Felton Lane, of ney & King, of Houston, for appellants. W. W. Hearne, for appellee. 5330, International & Great Northern Railway CATTLEMEN'S TRUST CO. et al. v. BECK. (No. 5287.) (Court of Civil Appeals of Texas. Austin. April 1, 1914. On Appellee's Motion for Rehearing, April 29, 1914. Rebearing Denied June 3, 1914.) 1. EVIDENCE (§ 441*) The charge of the court made the plaintiff's right to recover depend upon a finding by the jury that the defendants had been guilty of negligence; and, according to the rule announced in the above quotation, in order to make such an agree PAROL EVIDENCE VARYING WRITTEN INSTRUMENTS. One signing a stock subscription contract which recites that no representation made by the person taking the subscription shall annul the contract, unless reduced to writing, and that the contract constitutes the sole agreement, may not, in the absence of fraud, accident, or ⚫For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes mistake, show by parol an agreement not embodied in the contract. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030 2047; Dec. Dig. § 441.*] 2. CORPORATIONS (§ 583*)-MergER OF CORPORATIONS CONSENT OF STOCKHOLDERS-NE CESSITY. A stockholder who is present by proxy, but who declines to vote for a merger of corporations, does not assent thereto, and is not bound by the action of the majority stockholders favoring a merger. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2338-2340; Dec. Dig. § 583.*] 3. APPEAL AND ERROR (§ 1001*)—VERDICT CONCLUSIVENESS. A verdict amply supported by evidence will not be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. 1001.*] 4. CORPORATIONS (§ 579*)-NEW CORPORATION LIABILITY FOR DEBTS OF OLD Corpora TION. In the absence of an agreement to that effect, a new corporation, organized to succeed an old one, is not liable for the debts of the old one, unless the new corporation is merely a continuation of the old one, or unless the new corporation expressly or impliedly assumes the debts of the old corporation. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.*] On Motion for Rehearing. 5. CORPORATIONS ($579*)-NEW CORPORATION -LIABILITY FOR DEBTS OF OLD CORPORA TION. A new corporation organized to succeed an old one, which assumes the debts and receives and takes possession of the assets of the old one, is liable for a debt of the old one not in excess of the assets. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2307, 2309, 2313-2318; Dec. Dig. § 579.*] Cattlemen's Trust Company of Ft. Worth, which succeeded to all the rights and privileges of the first company, and this suit was brought by appellee against both of said trust companies, as well as the Texas Underwriters Company, for the purpose of canceling said subscription contract and said $1,875 note, and praying for judgment against all of said defendants for the amount of said other two notes, alleging that said first company, acting through its authorized agents, made certain false and fraudulent representations to plaintiff to the effect, among other things, that said first-named company was a Texas corporation, with an authorized capital stock of $5,000,000; that it had arranged to obtain 4 per cent. money in the East, and, if plaintiff would subscribe for said shares of stock therein, that it would loan its stockholders and shareholders, including this plaintiff, money at 6 per cent. and it would commence loaning said money on October 1, 1912; that relying upon said representations, which were false and fraudulent, plaintiff executed said subscription contract and notes; that said first note was paid in ignorance of the falsity of said representations, and that the second note had passed into the hands of an innocent purchaser for value, and that the third note of $1,875 was held by the Cattlemen's Trust Company of Ft. Worth; that thereafter said Cattlemen's Trust Company of Arizona was, without the consent of plaintiff, merged into the Cattlemen's Trust Company of Ft. Worth; and that said defendants were acting as partners. The Cattlemen's Trust Company of Ft. Worth, after special exceptions and general denial, defended on the ground, among other things not necessary to set out, that plaintiff Appeal from District Court, Coleman Coun- had consented to said merger, and likewise ty: John W. Goodwin, Judge. Action by F. Beck against the Cattlemen's Trust Company and others. From a judgment for plaintiff, defendants appeal. Affirmed on motion for rehearing. A. H. Kirby, of Ft. Worth, Woodward & Baker, of Coleman, and Theodore Mack, of Ft. Worth, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee. RICE, J. On the 30th of July, 1912, appellee, Beck, through the Texas Underwriters Company, subscribed for 125 shares of stock at $20 per share in the Cattlemen's Trust Company of Arizona, executing in writing a subscription contract therefor, as well as his three notes in payment thereof, one for the sum of $250, one for $375, and another for $1,875, the first payable to the Texas Underwriters Company, the second to J. D. Berry, agent of said company, and the third to the order of said Cattlemen's Trust Company. Thereafter, during the fall of 1912, said Cattlemen's Trust Company, by appropriate resolutions, merged all of its assets into the had ratified the same by the payment of one of the notes, with knowledge of the fact that such representations were false; that by reason of the execution and delivery to the first company of said subscription contract and notes that it had paid out for promotion expenses to the Texas Underwriters Company 25 per cent. of the sale price of such stock, and relying upon the truth of said written statements set forth in said subscription contract, and without any notice of the falsity thereof, if they be false, defendant acquired said subscription of plaintiff and his note for $1,875. It denied partnership under oath, and the other two defendants adopted its answer as their own. There was a jury trial, the court submitting the case on special issues, and upon which a verdict was rendered in behalf of appellee, from which this appeal is prosecuted. On the trial plaintiff was permitted to show by his own testimony and that of other witnesses that J. D. Berry, the agent of the Texas Underwriters Company who procured |