TAMPICO BANKING CO., S. A., v. BARBER, 3 F.2d 136

WALKER, Circuit Judge. This action was brought in a court of tbe state of Texas by tbe defendant in error (herein referred to as plaintiff) against tbe plaintiff in error, a corporation organized under tbe laws of tbe republic of Mexico (herein referred to as tbe defendant), and by tbe defendant was removed to tbe court below. Tbe record shows tbe following: Prior to tbe removal, a writ of garnishment was issued and served on tbe Eirst National Bank of Houston, Tex., and the garnishee’s answer showed that it bad in its possession $17,000 belonging to defendant.

Tbe defendant filed in the court below a special plea to the jurisdiction of tbe court, on tbe ground that tbe defendant, a foreign corporation, was n&t subject to be sued in a district in which it Was not doing business, and in which it had no agent; that pleading stating that • tbe defendant specially appeared for tbe sole purpose of questioning tbe jurisdiction of tbe court.

The defendant subsequently filed an answer to tbe petition, which stated that defendant specially appeared, subject to its above-mentioned plea, contained exceptions to tbe petition because of its insufficiency in law, and, without waiving said plea or those exceptions, put in issue tbe allegations of the petition. There was a trial before a jury of the issues of fact in tbe case, evidence being adduced by tbe plaintiff and tbe defendant.

Tbe record does not show that the above-mentioned plea to tbe jurisdiction of the. court, or the above-mentioned exceptions to the petition, were ruled on by the court, or were called to its attention. Nothing contained in the record is inconsistent with the conclusion that the trial of the ease on its merits was entered upon and concluded without the court being invoked to rule on any pleading raising a question of its jurisdiction of the defendant, or on any exception to the legal sufficiency of the petition.

Rulings of the court on those questions are not presented for review by a record which fails to show that such rulings were either sought or made. It may be presumed, the record not showing the contrary, that the defendant submitted itself to the jurisdiction of the court for the trial of the case on the merits, without insisting on the matters set up in the above-mentioned plea to the court’s jurisdiction and exceptions to the legal sufficiency of the petition. The petition contained averments to the following effeet: Plaintiff bought described oil-well easing from E. L.

Wilson Hardware Company, of Beaumont, Texas, and had that _ company ship for him such easing to Tampico, Mexico, and send to defendant for collection its sight draft on J. M. Wiggins for the price of such casing and collection charges, bills of lading for the casing being attached to the draft, and defendant expressly or impliedly agreed to collect the amount of such draft and remit the same, less its charges, or else return said draft with the accompanying bills of lading.

Without receiving payment of the amount of the draft, defendant delivered the hills of lading attached thereto to said Wiggins, or some other person, to whom the casing was delivered by the carrier upon presen! ation of the bills of lading which accompanied the draft, and defendant failed and refused to remit the amount of the draft, or to return it with the bills of lading which accompanied it. There was evidence tending to prove the above-mentioned allegations.

The defendant resisted the claim asserted, on the ground, among others, that plaintiff and said Wiggins acquired said easing as partners, and were to share equally in the profits or losses when the shipment was completad and settlement made at destination. As above indicated, there was evidence tending to prove that plaintiff alone purchased the easing and that the shipment of it was made for him.

The fact, that Wiggins was to share in the profits or losses in dealing with the casing after its delivery at destination could not justify the defendant in surrendering the bills of lading without being authorized to do so by the party in whose behalf it undertook to collect the draft to which the bills of lading were attached.

The existence of a partnership relation between plaintiff and Wiggins did not deprive the former of the right, by making the bills of lading deliverable only upon payment of the draft which accompanied them, to retain control of the casing until the draft for the price of it should be paid. The defendant, the agent for collection, made itself liable if, without being authorized by its principal, it surrendered the bills of lading without the drafts to which such bills of lading were attached being paid. Hibernia Bank & Trust Co. v. Bank of Topeka (C. C. A.) 288 F. 41.

In the above-stated condition of the evidence, the court did not err in overruling the motion of the defendant to instruct a verdict in its favor.

The, following is all that is shown by the bill of exceptions in reference to that motion: “At the conclusion of plaintiff’s evidence, and before any evidence was offered by the defendant, the defendant presented and urged a motion to instruct a verdict for the defendant, which motion by the court was overruled, to which action of the court in overruling that motion the defendant then and there in open court excepted.” The transcript contains a written motion by the defendant for an instructed verdict. That written instrument was not embodied in the bill of exceptions, and was not referred to therein.

It is not made to appear that that written motion was in any manner called to the attention of the court. Such an instrument is not a part of the record proper, and cannot properly be considered as a part of the record presented for appellate review, when it is not embodied in a bill of exceptions, or so referred to therein as to be identified as a motion submitted to the court for its action thereon.

In passing on the court’s action, on a motion by the defendant for an instructed verdict, we look only to the above-quoted part of the hill of exceptions for information as to what that motion contained, and not to a written instrument which was not mentioned in the bill of exceptions, or in any manner authenticated by the trial judge. The record shows no reversible error. The judgment is affirmed.