Easton v. Wycoff

Easton v. Wycoff, 4 Utah 2d 386, 295 P.2d 332 (Utah 1956).

According to the allegations of the complaint, the appellant is the owner of a gun factory, which he purchased in Trinidad, Colorado, and moved to Utah. After making the purchase, he sought a suitable location to lease within Salt Lake City and, through a real estate broker, contacted the respondent, who represented himself as the owner of certain property (although, in fact, he was merely negotiating its purchase). Respondent agreed to a lease acceptable to appellant, and promised to have the lease agreement drawn up by his attorney to comply with the requirements of the Statute of Frauds. Subsequent to the oral agreement, the respondent learned of a cloud upon the title of the property and refused to buy it from the true owner, Bessie Friedman; but, in spite of his knowledge that he was not going to purchase, he allowed appellant to move all of his equipment into the building. When the appellant discovered the true state of facts, he alleges that he was unable to negotiate as favorable a lease with Mrs. Friedman and brought suit upon the contract with respondent claiming damages of $17,700. Respondent answered that Appellant’s claim was barred by the Statute of Frauds and the trial court so held in granting has motions to dismiss and for summary judgment.

U.C.A.1953, 25-5-3 declares that every contract for the leasing for a longer period than one year of any lands shall be void unless the contract is in writing subscribed by the party by whom the lease is to be made. However, appellant contends that the respondent, under the allegations of the complaint, is estopped to plead or raise the Statute as a defense.

Certainly, the doctrine of estoppel, applicable to a misrepresentation made as to a past or present fact, Ravarino v. Price, might be invoked for the purpose of precluding the respondent here from asserting his lack of title to the premises if the elements of estoppel were to be demonstrated by the evidence. But, for the purposes of this case, we might view the respondent as the owner in fact of the property to which he claimed title, and are met with the more difficult question of whether, under such circumstances, appellant is entitled to enforce or sue upon the breached oral contract. In other words, will the reliance of the appellant upon the promise of the respondent to execute a written lease in the future estop the respondent to set up the Statute of Frauds as a defense to an action upon the contract.

Promissory estoppel relates primarily to those informal contracts which lack consideration but where, because of the facts surrounding the transaction, injustice can only be avoided by enforcing the promise; in such instances, the reliance of the promisee, induced by the conduct of the promissor, is accepted as a substitute for formal consideration. A.L.I. Restatement of the Law of Contracts, Sec. 90. This doctrine has been extended, in a limited form, to apply to cases concerned with the Statute of Limitations or the Statute of Frauds where the promise as to future conduct constitutes the intended abandonment of an existing right of the promissor, Ravarino v. Price, supra.

Appellant relies upon the doctrine of promissory estoppel and particularly the cases of Interstate Co. v. Bry-Block Mercantile Co. and Seymour v. Oelrichs as including within the limited rule oral contracts where the promisee has justifiably relied upon a promise to execute a memorandum to satisfy the Statute of Frauds. These cases appear as footnote citations to the following from II Williston on Contracts, Sec. 533A:

‘Thus, where one makes a misrepresentation of fact, stating that he has complied with the Statute, as for example, where the defendant has given the plaintiff a paper representing that it is memorandum of the contract when in fact it is not and the plaintiff has relied thereon in performing his share of the contract, the defendant will be estopped to plead the Statute. The doctrine of promissory estoppel has also been extended to permit recovery on the contract by one who has relied to his detriment on the promise of the defendant to execute and deliver a sufficient memorandum. A mere refusal to perform an oral agreement within the Statute, however, is not such fraud as will justify a court in disregarding the Statute even though it result in hardship to the plaintiff. His remedy will be limited to the quasi contractual actions hereafter discussed.’

The difficulty lies in reconciling in application the two statements italicized above. In most instances of negotiations for transactions included within the Statute, a reduction of the contract to writing is contemplated and, in all probability, the parties will discuss who will draw the instrument and when and where it will be signed. The mere refusal to execute a written contract as agreed does not constitute ‘fraud’ within the rule that the Statute of Frauds will not be enforced where the effect would be to perpetrate a fraud, Long v. Long, and to hold otherwise would, in effect, completely nullify the Statute of Frauds. Comment f. to Section 178, A.L.I. Restatement of The Law of Contracts, adopts the extension and offers some further guide in differentiating the two situations:

‘Though there has been no satisfaction of the Statute, an estoppel may preclude objection on that ground in the same way that objection to the non-existence of other facts essential for the establishment of a right or a defense may be precluded. A misrepresentation that there has been such satisfaction if substantial action is taken in reliance on the representation, precludes proof by the party who made the representation that it was false; and a promise to make a memorandum, if similarly relied on, may give rise to an effective promissory estoppel if the Statute would otherwise operate to defraud.’

In other words, the Restatement emphasizes the element of fraud and requires ’substantial action’ upon the promise to put the contract in writing in order for enforcement of the contract to be granted, and the cases appear to bear this out.

In Seymour v. Oelrichs, supra, plaintiff gave up a lifetime position in order to enter defendant’s service and worked for him for two years upon the defendant’s promise to put the contract in writing. In this case, the court held defendant estopped to assert the Statute. However, this often cited case might well be contrasted with the case of B.F.C. Morris Co. v. Mason, likewise involving a long-term employment contract and a promise to reduce the contract to writing; the difference between the cases being that in the latter the plaintiff did not show injury of the type sufficient to invoke an estoppel. The position which he gave up was one terminable at will by the employer and his move to Oklahoma City, the place of the second employment, was not occasioned by the promise of employment. In denying the relief, the court stated:

‘It is an indispensable element of equitable estoppel that the person relying thereon must have been induced to act or alter his position to his detriment or injury, and, where equitable estoppel is relied on to preclude another from asserting the statute of frauds as a defense to an oral contract not to be performed within a year such injury must be unjust and unconscionable, and such that there is no complete and adequate remedy at law available to the person asserting the equitable estoppel.’

Other courts have reached similar conclusions: Kibbey v. Kinney; Taplin v. Hinckley Fibre Co.; and Foley & Whitehill v. Texas Co. The other case relied upon by plaintiff, Interstate Co. v. Bry-Block Mercantile Co., supra, demonstrates also an unconscionable injury in that plaintiff spent $15,000 in equipment and improvements upon property which defendant promised to lease to him.

That the case of Seymour v. Oelrichs, supra, is not based solely upon the fact that there was a promise, relied upon by plaintiff, to deliver a sufficient memorandum is demonstrated by a more recent case from the same jurisdiction, Albany Peanut Co. v. Euclid Candy Co. of California, Inc.:

‘The circumstances must clearly indicate that it would be a fraud for the party offering the inducements to assert the invalidity of the contract under the statute, and, unless the words and conduct of the party sought to be held amount to an inducement to the other to waive a written contract in reliance upon the representation that the person promising will not avail himself of the statute of frauds, there is an absence of fraud which is requisite to an estoppel.

‘A mere promise to execute a written contract, followed by refusal to do so, is not sufficient to create an estoppel, even though reliance is placed on such promise and damage is occasioned by such refusal. The acts and conduct of the promissor must so clearly indicate that he does not intend to avail himself of the statute that to permit him to do so would be to work a fraud upon the other party.’

It is clear that the facts of this case do not create a situation calling for the application of the principle of promissory estoppel. Appellant did not expend any monies upon the leased premises, but is damaged because of the loss of a good bargain. In reliance upon respondent’s statements, it is true that he moved into the premises, but there are no facts alleged which would have made it impossible for him to have moved again after he discovered that respondent was not going to lease to him. Indeed, business prudence would require that he move if he could have obtained a more favorable arrangement than the one which he finally entered into with Mrs. Friedman. However, he chose instead to remain, presumably because he could do not better, and hence there is no occasion to apply promissory estoppel to prevent his being defrauded.

Appellant urges that his complaint states a cause of action sounding in tort for fraudulent misrepresentation, to which the Statute of Frauds would be no bar. He cites to us 23 Am.Jur., Fraud and Deceit, sec. 50, which states the general rule that false representations as to title, made for the purpose of inducing a business transaction, may be the basis for an action in tort for damages. We do not disagree with such a broad generalization but do not find it determinative of the nature of this case. Appellant prayed for damages in a sum equal to the difference between the lease, and its various benefits, which he agreed upon with respondent, and the terms of the lease which he finally made with Mrs. Friedman. Further, appellant’s damage arose from the fact that respondent refused to enter a valid written lease and not from the misrepresentations as to the title of the property, although appellant might not have moved so quickly had he not believed that respondent had the power to perform. His loss was occasioned by the loss of the bargain and not from any expense to which he was put because of defendant’s inducement. Thus, it is obvious that his suit is upon the contract. See Papanikolas v. Sampson.

Illustrative of the cases where a suit upon the fraud has been allowed where the Statute was interposed as a defense is Nanos v. Harrison: Plaintiffs made a parol lease for 5 years with defendant, who assured them he had the right to lease the premises and that he would have a written agreement drawn to the terms decided upon. On the strength of these statements and the further assurances that they might enter into other contracts for improvement of the property, plaintiffs did enter such contracts at a cost to them of $2,000. When it was discovered that the defendant was without the power to execute a proper lease, the plaintiffs brought suit on the basis of constructive fraud, praying damages in the amount of $2,000. The court held that the proof of the oral lease was not offered to enforce the lease but simply as a fact in the history of the transaction, evidence of the fraud, saying:

‘The action is not one to enforce the contract of lease either directly or indirectly. The action is based upon facts which grew out of the making of the lease, but it is wholly collateral to it.’

To state the facts of this case is to state the features which distinguish it from the present one. If an action sounding in tort were allowed in every instance where the contract was unenforceable because not in writing and barred by the Statute of Frauds, the statute would be rendered meaningless. As stated in 37 C.J.S., Frauds, Statute of, § 224:

‘the operation of the statute is not confined to cases where an action is brought directly on the contract. Whatever the form of the action may be, if the proof of a promise or contract within the statute is essential to maintain it, there can be no recovery unless the statute is satisfied. Even an action sounding in tort may be barred by the statute where an essential element of the cause of action is an oral contract within the statute; but where the oral contract or representation is a mere circumstance or incident of a fraud it may be shown in an action in tort for damages as the statute has no application to such a case.’

Affirmed. Costs to respondent.

CROCKETT, HENRIOD and WADE, JJ., concur.

WORTHEN, J., concurs in the result.

1 Ravarino v. Price, 260 P.2d 570.

2 Papanikolas v. Sampson, 73 Utah 404, 274 P. 856.

*Editor’s note: the rule prior to the introduction of the doctrine of promissory estoppel, an example of which may be seen in Kirksey v. Kirksey, was that a gratuitous or gift promise or other promise lacking consideration was not enforceable, even if the promisee had detrimental reliance on the promise.

Defining Terms – Public Transportation

The contention below and here was and is that the words “school conveyances,” being placed between “electric railways” and “other public transportation,” must necessarily be interpreted as relating only to conveyances of the same character as the others specified, that is “public or common carriers”; which the hired wagon provided by appellant was not. To this we cannot assent. The ejusdem generis argument, upon which this conclusion is attempted to be based, is inapplicable, not only because “school conveyances” are not the general words in the sentence, these being “other public transportation,” but also because carriage by “school conveyances” of this character are “public transportation” though their actual use, for the purpose stated, is limited to a part of the community only and because, further, “school conveyances,” which were a well-known method of transportation before the passage of the act, were not and are not “common carriers” in any proper sense of the term.

The latter may carry school children, but that alone would not make their cars “school conveyances”; particular cars would have to be devoted to this use, before they would be so designated, and no one suggests there is any such requirement. Moreover, if the words “school conveyances” were limited in meaning to “public or common carriers,” they would be surplusage, since “electric railways……or other public transportation” embraces everything in that class. The courts are not permitted, however, to so treat any words in a contract or statute, unless no other conclusion can reasonably be reached: Vulcanite Paving Co. v. Phila.

It is clear to us that the “free transportation of pupils ……authorized by this Act,” as referred to in the section under consideration, means that specified in section 1404, by which “The board of school directors of any school district……may, out of the funds of the district, provide for the free transportation of any pupil to and from the public schools.” Substantially similar language occurs in other sections, and nowhere does there appear any intention to limit the character of conveyance to those belonging to and used by “common carriers”; they may be any proper form of transportation prescribed by the board, certainly, in the absence of a reasonably clear expression to the contrary, they may be by private carriers, which, as stated, was not uncommon prior to the act.

So far as appears, the old Franklin school building is a “proper shelter” within the meaning of the proviso quoted, and the hired wagon is not shown to be an inadequate vehicle for the carriage of the children; hence the school district performed its full duty when this was sent to carry relator’s children between that “shelter” building and the West Benton school.

Court Permits Transcripts

All the decisions agree that where the mails have been relied upon, and the party has failed thereby to secure a statement of facts, on account of some accident to or detention by the mails, it is a want of diligence, under article 1382. The opinion recognizes this, but relies upon the recent decision of the court of civil appeals in Carothers v. Lange. That case has no application here. The court in that case permitted the filing of a transcript where the opposite party sought an affirmance on certificate, and held in regard to that matter that reasonable diligence was shown, and permitted the record to be filed.

The statute under which this decision was made reads as follows: “In any appeal or writ of error as provided for in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk of the courts of civil appeals within ninety days from the performance of the appeal or service of the writ of error: provided, that for good cause the court may permit the transcript to be thereafter filed upon such terms as it may prescribe.” If article 1382 read as does this article, there would be some cogency in the contention of the majority.

But under this latter article the court may permit transcripts to be filed for good cause and upon such terms as the court may prescribe. Under article 1382, appellant must show the failure to file the statement of facts arose from no fault on his part and from circumstances beyond his control. The difference between the statutes is plain, and the rule prescribed by one has no analogy to the other. I therefore dissent from the position of the majority that the rule laid down for the filing of transcripts is applicable to the rule prescribed for the filing of statements of facts. Carothers v. Lange, supra, has no application to article 1382.

Jury Instructions in Abuse Case

In an instruction given at the instance of plaintiff, the court told the jury in substance, that if they found that on the day named defendant was operating the railroad between Leachville in Arkansas and Gideon in Missouri; that plaintiff on that date purchased a ticket from the agent of defendant at Leachville “entitling him to continuous passage to the station of Gideon in the state of Missouri”; that defendant had two routes of railroad from Leachville to Gideon; that the only way to make a continuous passage without stopping was going by way of Hayti and from there to Brooks Junction and from Brooks Junction to Gideon; that plaintiff, prior to the time complained of had made the trip over defendant’s railroad by the route above mentioned on a similar ticket to that purchased on that date; and if they believed and found from the evidence that on that date plaintiff was in possession of the ticket above mentioned and offered the ticket to the conductor of defendant’s train for his transportation over the route; and if they believed and found from the evidence that the conductor of the defendant refused to accept the ticket from plaintiff and refused to carry plaintiff to his destination on the ticket but stopped his train about a mile and a half east of Kennett and forced plaintiff to alight therefrom and treated him in an abusive, insulting, angry and threatening manner; and if the jury found from the evidence that the acts of defendant’s conductor subjected plaintiff to pain, humiliation and mortification, plaintiff was entitled to recover therefor such damages as the jury might believe from the evidence will compensate plaintiff for such pain, humiliation and mortification so suffered.

And if the jury found from the evidence that such acts were done by defendant’s conductor with unnecessary violence, or with abusive or insulting language, then the jury should further assess damages against the defendant in such sum as the jury may believe from the evidence will be a suitable punishment to defendant for such wrongful acts, and such damages should be separately stated in your verdict.

Supreme Court Decides Public Transportation Case

By numerous decisions of the Supreme Court of the United States this act of Congress has been applied to cases practically like the one at bar. It is true that most of them relate to carriage of property, hence learned counsel for respondent argue that they are not applicable. But the law governs the transportation of persons as well as property. No agent of any road subject to the provisions of the act, has any authority to make or recognize any arrangement for transportation of persons or property from a point in one state to another for other than the legal rate.

Charging one person more or less than another is not lawful. See among other cases Louisville & Nashville R. R. Co. v. Mottley and Chicago & A. R. Co. v. Kirby. The decision in the latter case is particularly in point here, the shipper claiming that he was entitled to a special routing of certain horses that would insure quicker transportation from the point of shipment to point of destination than if going by the regular route. Mr. Justice Lurton, delivering the opinion of the court, said that the broad purpose of the commerce act was to compel the establishment of reasonable rates and their uniform application. That purpose would be defeated if sanction be given to a special contract by which any such advantage is given to a particular shipper as that contracted for by the defendant in error. To guarantee a particular connection and transportation by a particular train, was to give an advantage or preference not open to all and not provided for in the published tariffs.

This same view of the law has been recognized in many decisions of our Supreme Court and of this court, as Dunne & Grace v. St. Louis & Southwestern Ry. Co. It follows that whatever arrangement plaintiff may have had here with the ticket agent, he had no right to be transported over the longer route at the tariff rate applicable to the shorter. If he traveled by the longer, he could not do so without paying fare applicable to that route and at the time chargeable to all persons traveling by that route, and if he attempted to do so the conductor had not only the right but it was his duty to refuse to carry him.

New York Courts Have Authority

Irvin attacks the jurisdiction of the New York courts to entertain this action. It contends that the suit, however disguised, is really one for patent infringement and, as such, is within the exclusive jurisdiction of the Federal courts. More particularly, Irvin claims that the plaintiff sued in tort in the State court in order ‘to avoid the necessity’ of meeting the defense of patent invalidity–under Sears, Roebuck & Co. which, it asserts, may only be raised in the Federal courts.

This argument misconceives the law, since neither the plaintiff’s agreement nor the purported existence of a defense based on the patent’s invalidity affects the court’s jurisdiction. It is firmly settled that the Federal courts have exclusive jurisdiction, and the State courts are ousted of jurisdiction, Only if the action brought ‘arises under’ the Federal patent laws. Thus, actions involving contracts relating to patents–or copyrights 2–are not considered suits arising under those laws, and are properly brought in the State court, even if the validity of the patent may somehow be involved and the plaintiff could have brought suit for its infringement in the Federal court. In other words, the fact that the foundation for suit is a contract granting patent rights and that the plaintiff must rely on the patent in support of his cause of action is not determinative and neither vests the Federal court with jurisdiction nor deprives the State court of power to entertain the action as in T.B. Harms Co. v. Eliscu.

The rule is well exemplified by the decision in the American Well Works case, which concerned a claim of unfair competition based upon alleged false charges of patent infringement. In holding that the action was properly brought in the State court, despite the fact that the validity of the patent may have been ‘involved’ in a defense of justification, the court applied the law and rendered a decision in the case.

Government Suppresses Coverage of Politician Indictments

The defendant, as publisher of a certain weekly newspaper at Warrensburg, Mo., called the Standard-Herald, on the 19th of June, 1903, published in said paper the following article: When a citizen of Missouri stops long enough to think of the condition of affairs in his state, it is enough to chill his blood. A grand jury in Cole county has just found indictments against four members of the highest lawmaking body in the state, and the St. Louis grand jury has heard evidence within the past few months that, if it had the necessary jurisdiction, would have indicted many other members of the State Senate.

The Missouri citizen has also seen the Cole county grand jury dissolved before the work mapped out for it was hardly begun, on the advice of the Attorney General of the state. They also see the Chief Executive sitting passively at his office in the Statehouse, not making a move to bring to justice the men who have been proven guilty of boodling in the Missouri Legislature by the St. Louis grand jury, but over whom the authorities of that city have no jurisdiction. And now, as the capsheaf of all this corruption in high places, the Supreme Court has, at the whipcrack of the Missouri Pacific Railroad, sold its soul to the corporations, and allowed Rube Oglesby to drag his wrecked frame through this life without even the pitiful remuneration of a few paltry dollars. Learned men of the law say that Rube Oglesby had the best damage suit against a corporation ever taken to the Supreme Court. This very tribunal, after reading the evidence and hearing the arguments of the attorneys, rendered a decision sustaining the judgment of the lower court, which decision was concurred in by six of the seven members of the court. This is usually the end of such cases, and the decision of a Supreme Court, once made, usually stands. But not so in the Oglesby case.

Three times was this case, at the request of the railway attorneys, opened for rehearing, and three times was the judgment of the lower court sustained. But during this time, which extended over a period of several years, the legal department of this great corporation was not the only department which was busy in circumventing the defeat of the Oglesby case. The political department was very, very busy. Each election has seen the hoisting of a railway attorney to the Supreme Bench, and, when that body was to the satisfaction of the Missouri Pacific, the onslaught to kill the Oglesby case began. A motion for a rehearing was granted, and at the hearing of the case it was reversed on an error in record of the trial court, and was sent back for retrial. That was in the early part of the year 1902. The case was tried in Sedalia before Circuit Judge Longan, one of the ablest jurists in the state, and we have been informed that no error was allowed to creep into the record at the second trial. Again the jury rendered judgment in favor of Oglesby for $15,000, and again the case was appealed to the Supreme Court. An election was coming on, and the railroad needed yet another man to beat the Oglesby case.

The Democratic nominating convention was kind, and furnished him, in the person of Fox. The railroad, backed by four judges on the bench, allowed the case to come up for final hearing, and Monday the decision was handed down, reversed and not remanded for retrial. The victory of the railroad has been complete, and the corruption of the Supreme Court has been thorough. It has reversed and stultified itself in this case until no sane man can have any other opinion but that the judges who concurred in the opinion dismissing the Oglesby case have been bought in the interest of the railroad. What hope have the ordinary citizens of Missouri for justice and equitable laws in bodies where such open venality is practiced? And how long will they stand it? The corporations have long owned the Legislature, now they own the Supreme Court, and the citizen who applies to either for justice against the corporation gets nothing. Rube Oglesby and his attorney, Mr. O. L. Houts, have made a strong fight for justice. They have not got it. The quivering limb that Rube left beneath the rotton freight car on Independence Hill, and his blood that stained the right of way of the soulless corporation, have been buried beneath the wise legal verbiage of a venal court, and the wheels of the Juggernaut will continue to grind out men’s lives, and a crooked court will continue to refuse them and their relatives damages, until the time comes when Missourians, irrespective of politics, rise up in their might and slay at the ballot box the corporation-bought lawmakers of the state.

Charge Upon Irresistible Impulse

Appellant insists in his bill that the court erred in refusing to give the charge ordinarily denominated “a charge upon irresistible impulse.” We are apprised of the fact that some supreme courts have upheld the doctrine of irresistible impulse as contained in appellant’s charge, but we do not think this doctrine is sound. It has never been recognized as the law of this state. In Hurst v. State, the majority of the court expressly disclaim any assent to the doctrine of irresistible impulse. If defendant has an irresistible impulse to commit a crime, and does not know the nature and quality of the act, he is insane.

If he does know the nature and quality of the act, and does know right from wrong, and knows the act to be wrong, he is not insane. The charge as given is not conflicting, as contended by appellant, and the court did not err in refusing the special charge requested. Were it not for the length of this opinion, it would afford us pleasure to further discuss this question, but it is only necessary here to say that we do not think the court erred in failing to charge on the “doctrine of irresistible impulse,” as contended by appellant.

Appellant excepts to the following portion of the court’s charge: “You are further instructed that if you believe from the evidence in this case that defendant did shoot and kill W. A. Gray as alleged in the indictment herein, and that such killing was not done in his own necessary self-defense, but you further believe it has been shown by a preponderance of the evidence that at the time of the killing defendant, by the continued or recent use of morphine or cocaine or both, or by such use of either or both of said drugs, combined with whiskey, or from any other cause, except the voluntary recent use of ardent spirits alone, as heretofore explained to you, was rendered temporarily insane, and while in such state of insanity killed deceased, and that defendant’s mind was at the time of such killing so affected with insanity that he did not understand the nature and quality and character of the act of killing deceased and its consequences, or if his mind at the time of such killing was in such diseased and unsound condition that for the time being his reason, conscience, and judgment was overwhelmed to such an extent that he did not know such act was wrong and criminal, and would subject him to punishment, or create in the mind of defendant an uncontrollable and irresistible impulse to kill deceased, which, because of such unsound condition of his mind, he had not sufficient reason, judgment, and will power to resist, then you will acquit defendant.” This charge is correct, and is the law of this state. Leache v. State.

Showing of Evidence Proves Legally Deranged

Appellant introduced a great deal of evidence tending to show mental derangement on divers and sundry occasions. Among other instances, a conversation with his brother-in-law, in which he imputed a want of chastity to his wife, and said deceased was familiar with her. He talked to other parties about the matter, and talked to various parties about a mob trying to kill him. He stated he was going to resign his position as county judge, and went so far as to see some of the commissioners, asking them to select a certain party in his place after his resignation. His reason given for resigning was to accept a more lucrative position in the trial of railroad cases. It is unnecessary to make a full and complete statement of all the circumstances detailed in the record, covering 167 pages of facts, but we deem the foregoing sufficiently explicit to present the questions of law raised in the record.

Appellant’s first bill of exceptions complains of the district judge of Robertson county changing the venue upon his own motion, upon the grounds (1) that Williamson county is not an adjoining county, but the counties of Leon, Limestone, and Falls each adjoin Robertson county, and that the venue should have been changed to one of the latter counties; (2) that the statute contemplates, if a change of venue is made, it shall be to a county adjoining the one where the offense is committed; (3) that Williamson county is a long distance from Robertson county, and that defendant’s trial will be among strangers, and by reason of said fact it will be difficult for him to have said trial in Williamson county, and he cannot obtain a fair and impartial trial. The judge in his qualification to the bill states that Williamson county is on the same line of railroad as the town of Franklin, the county seat of Robertson county, where a great number of the witnesses resided.

We have heretofore held that the statute with reference to the change of venue leaves it within the sound discretion of the trial court to change the venue whenever he is satisfied that a trial alike fair and impartial to the accused and the state cannot be had in the forum where the crime was committed. We have also held that this is a judicial, and not a personal, discretion, and, unless there is a flagrant violation of it, we will not disturb his finding. The question here involved was passed upon by us in Nite v. State, adversely to appellant’s contention. And see, also, Boyett v. State. He also filed a motion in the district court of Williamson county, asking said court to retransfer the cause to Robertson county. The court overruled the motion, and we do not see any error in this action. The judge not having violated his discretion in transferring the case to Williamson county, we see no error in the court’s refusal to retransfer the same.

Motion to Strike by Assistant Attorney General

The assistant attorney general has filed a motion to strike out the statement of facts, because same was not filed within the 10 days after the adjournment of the court, as provided by the order of the court. In reference to the diligence used in an effort to secure the statement of facts, we set out in full the affidavit of the learned judge, as follows: “I was the presiding judge of the district court of Williamson county, Texas, in August, 1899, when the case of State of Texas v. O. D. Cannon, charged with murder, was on trial, and which case is now pending in the court of criminal appeals. It is my recollection that a verdict in said case was returned on Tuesday, August 8th, or on August 9th. August 12th was the last day of the court,—the date on which the term expired by limitation of law. The motion for new trial was overruled, and an order entered allowing ten days in which to make up and file statement of facts. When motion for new trial was overruled, I requested counsel for defendant, Cannon, to make up and present statement of facts at earliest date possible, as the evidence was voluminous, and that I desired to have time to examine statement of facts when presented before expiration of ten days from adjournment of court.

Counsel for defendant promised to prepare said statement as soon as possible, and stated that they would present it to me Thursday, August 17, 1899, they thought. I waited at Georgetown, after court adjourned, until August 17th, and, said statement not having been presented, I spoke to local counsel for defendant at Georgetown, Hon. W. F. Robertson, about it, asking him why they did not present said statement. He replied he did not know. I still remained at Georgetown, Texas, waiting for said statement to be presented, until the tenth day after adjournment of court, and in the meantime I several times urged upon local counsel for defendant to have said statement of facts presented.

On the night of the tenth day after the day of adjournment of court I was awakened in my room by counsel for defendant, who presented me the statement of facts agreed to and signed by counsel for both sides. This was done at three minutes to twelve o’clock. I had no time or opportunity to examine said statement until next day, and on the next day, it being the 23d day of August, 1899, I spent nearly the entire day examining said statement of facts, and, finding the same incorrect in many particulars, I made such corrections in the same as were necessary to show the facts as they were proven, and immediately signed said statement, and had it filed by the clerk.”