Sigel v. Buccaneer Hotel Co.

40 S.W.2d 168, 1931 Tex. App. LEXIS 1168

• Court: Court of Appeals of Texas
• Decided: March 27, 1931
• Docket: No. 9505.
• Status: Published

Opinions

PLEASANTS, G. J.

This is a suit by appellant against the ap-pellees for a mandatory injunction and, in the alternative, for damages for alleged unlawful obstruction and closing by appellees of a portion of a public street of the city of Galveston upon which appellant Is an abutting property onwer. The suit is brought against the Buccaneer Hotel, a corporation, W. L. Moody, Jr., the city of Galveston, and the mayor and members of the board of commissioners of said city. After naming the defendants and describing the portion of the street alleged to be unlawfully obstructed and closed, and plaintiff’s abutting property, the petition alleges, in substance: That on or about the 15th day of September, 1927, the city of Galveston, acting by and through its board of commissioners, passed an ordinance closing that portion of the street before described, and entered into a contract with the defendant W. L. Moody, Jr., giving him the right to occupy and use said portion of the street by erecting thereon a portion of a hotel building to cost approximately $300,000, such right to the use and occupancy of the street to continue as long as the hotel provided for in the ordinance should be maintained b"y W. L. Moody, Jr., his successors or assigns.

The defendants Buccaneer Hotel Company and W. L. Moody, Jr., answered by general demurrer, special exceptions, and specially pleaded that, in the construction of the hotel, they had complied with the provisions of the ordinance of the city of Galveston set out in plaintiff’s petition, and that this ordinance was a valid exercise of the city’s control of its streets and gave them' authority for obstructing the street in the manner and to the extent stated in plaintiff’s petition, and plaintiff had full knowledge that a portion of the building was being constructed in the street and without objection he permitted them to expend large sums of money in its construction. They further specially pleaded: “That in or about the year 1928, defendant Buccaneer Hotel Company commenced the construction of a hotel building on the premises so owned by it, and that a portion of said building occupied a part of the portion of said Avenue Q closed by said ordinance; that defendant Buccaneer Hotel Company expended approximately Seven Hundred Fifty Thousand ($750,000.00) Dollars in the construction of said building and that the plaintiff had full knowledge of and assented to the placing of a portion of said hotel building on the part of Avenue Q so closed by said ordinance; that the plaintiff willfully and maliciously assented to the erection of said hotel building and raised no objection thereto during the construction thereof, well knowing that said defendant was expending a large sum of money in the erection of said improvements, and that if it was required to remove the portion of said building occupying the closed part of Avenue Q, after the same had been completed, that the damage and injury to said defendant, Buccaneer Hotel Company, would be enormous; that on account of the large sum of money involved in the construction of said building and the damage and injury to defendant, Buccaneer Hotel Company, fa the event it should he required to remove the portion thereof occupying the closed part of said Avenue Q, it was the duty of plaintiff to advise said defendant, Buccaneer Hotel Company, of his objections thereof, and by reason of his failure to so act, and of the assent of the plaintiff to the erection of said building and occupancy of said closed portion of Avenue Q, and of his said willful and malicious conduct, the plaintiff is estopped from maintaining this suit for injunctive relief, or for damages.”

' The defendants city of Galveston and the mayor and members of the board of commissioners of the city answered by general demurrer and special exceptions to plaintiff’s petition, and by special pleas, the nature of which need not be here stated.

They also, by cross-action, asked judgment over against the defendant W. B. Moody, Jr., for any damage or costs that might be adjudged against them.

The trial fa the court below without a jury resulted in a judgment fa favor of all of the defendants.

The ordinance referred to and made a part of plaintiff’s petition is as follows:

“Whereas, W. B. Moody, Jr., is the owner of that part of the Northwest block of Out-lot No. One Hundred Eighteen (118), lying north of the Galveston County Seawall right-of-way, as delineated upon the map adopted by the County Commissioners Court of Galveston County, Texas, at the meeting held on August 23, 1902, a copy of which said map is of .record in the Deed Records of Galveston County, Texas, in Volume 194, on pages 1, 2, 3 and 4; and

“Whereas, the said W. B. Moody, Jr., is desirous of erecting on said premises a hotel at a cost of approximately $300,000.00, and said premises are of insufficient area to contain such proposed building; and

“Whereas, said hotel building is needed for the accommodation of visitors to the City of Galveston, and its construction will increase the taxable value of real estate in said City; and

“Whereas, the sidewalk on the south side of Avenue Q, adjacent to the north building line of said premises, has been but little used by pedestrians, and is used largely for the purposes of storage; now, therefore,

“Be it ordained by the board of commissioners of the city of Galveston, as follows:

“Section 1. That that portion of Avenue Q between the south curb and the property line, extending from the east property line of Tre-mont Street, to the north line of the Seawall Boulevard, be, and the same is hereby abandoned, discontinued and closed as a public street and thoroughfare as long as it is used by W. B. Moody, Jr., his successors or assigns, fa connection with the hotel to be erected and maintained on that part of the northwest Block of Outlot No. One Hundred Eighteen (118), lying north of Galveston County Seawall right-of-way, or any part thereof.

“Section 2. That the closing of the part of the street mentioned and described fa Section 1 of this ordinance is made and granted upon the express condition, and for the expressed consideration, that the said W. B. Moody, Jr., and/or his successors and assigns, will commence the construction of a hotel on said premises described in said ordinance, within two years from the date of the passage hereof, and complete the same at a cost of not less than $300,000.00, and maintain such hotel on said part of the northwest block of Outlot No. One Hundred Eighteen (118), and failure of the said W. B. Moody, Jr., his successors or'assigns, to so commence the erection of such hotel and erect, complete and perpetually maintain the same, shall, without further action on the part of the City of Galveston, forfeit and revoke this ordinance and every part thereof, and the possession of the parts of the street hereby closed, shall at once revert to the City of Galveston, to be used by it as a public thoroughfare.

“Section 3. That said W. B. Moody, Jr., hereby agrees, undertakes and promises to hold the City of Galveston harmless and indemnify it against all suits, costs, expenses and damages that may arise, or grow out of the closing of the aforesaid part of said Avenue Q, or by reason of his said occupation thereóf.

“Section 4. The City of Galveston does not part with, and expressly reserves the right and duty at all times to exercise in the interest of the public, full superintendence, regulation and control fa every respect over the rights, privileges and permission hereby granted, and especially fa all matters connected with the police powers of said City.

“Section 5. This ordinance shall take effect and be in force if within ten days from the passage hereof, said W. B. Moody, Jr., shall signify his agreement hereto and accept the said ordinance and all of its terms in writing, which acceptance shall be deposited with the Secretary of the City of Galveston.

“And in the event of the failure of said W. B. Moody, Jr., to so accept this ordinance, it shall never fake effect, or be in force.”

At the request of appellant, the trial court filed conclusions of fact and law which contain the following findings of fact:

“1. I find that on the 15th day of September, 1927, and prior thereto to the 25th day of March, 1907, W. B. Moody, Jr., one of the defendants herein, was the owner in fee simple of the property known as ‘that portion' of the Northwest block of Outlot 118, lying north of the Galveston County Seawall right- of-way ;»<•** that said plot of ground is located on wliat is known as the'beach front of the City of Galveston and is bounded on the south by the seawall boulevard, on the north by Avenue Q, and on the east by 22nd Street and on the' west by 23rd Street. The west line of said plot of ground has a length of 120.66 ft. The south line of said plot has a length of 285.33 ft. The north line of said plot has a length of 258.5 ft., said lot coming to a gradual point at its east corner.

“2. That Avenue Q commences at 22nd Street, which is also the east corner of said plot of ground hereinabove referred to, and extends westerly to the city limits, a length of approximately two miles. Avenue Q is a street 70 feet wide, being divided into sidewalks on each side thereof of 16 ft. each, with a width between sidewalk curbs of 38 ft. Said Avenue is now, and has been for 40 years or more, a publicly used street in the City of Galveston and'for many years has been kept up and improved as a street by the City of Galveston.

“3. Plaintiff, Louis Sigel, is now, and has been for many years, the owner of Lots Nos. 8 and 9 and a part of Lot 10 in the Southwest Block of Outlot No. 93, in the City and County of Galveston, Texas, comprising as a whole a plot of ground 117 ft. 2.6 in. by 120 ft. deep, located * - * * on the north side of Avenue Q and extending 117 ft. 2.6 in. westward from the corner of 22nd Street; that the said Louis Sigel has now, and has had for a number of years, on said property, two frame buildings which are now, and have been for some years, operated as hotels with a restaurant in connection with the most easterly of said buildings.

“4. That on the 15th day of September, 1927, the Board of Commissioners of the City of Galveston passed an ordinance in which it was declared among other things, in substance, that, whereas, W. L. Moody, 'Jr., was the owner of the Northwest Block of Outlot No. 118, and desired.to erect on said premises a hotel at a cost of approximately $300,000.00 and that said premises were of insufficient area to contain such proposed building, and that, whereas said hotel building was needed for the accommodation of visitors to the City of Galveston and its construction would increase the taxable value of real estate in the. City of Galveston, and that, whereas a sidewalk on the south side of Avenue Q adjacent to the north building line of said premises had been little used by pedestrians and was used largely for the purposes of storage, said portion of Avenue Q between the south curb and the property line, extending from the east property line of Tremont Street to the north line of the Seawall boulevard, was declared abandoned, discontinued and closed as a public street and the said W. L. Moody, Jr., was authorized to utilize said sidewalk in connection with the construction of said hotel building. That the plaintiff does not own the fee to that part of the street so closed and abandoned.

,-5. That said ordinance contained the following provision:

“ ‘See. 4. The City of Galveston does not part with, and expressly reserves the right and duty at all times to exercise in the in- ■ terest of the public full superintendence, regulation and control, in every resp.ect, over the rights, privileges and permission hereby granted, and especially in all matters connected with the police powers of said City.’

“6. That thereafter the said W. L. Moody, Jr., organized a corporation known as the ‘Buccaneer Hotel Co.’ and on the 10th day of April, 1928, conveyed said Northwest Block of Outlot No. 118, referred to and described above, to said Buccaneer Hotel Co., a corporation,, and the said W. L. Moody, Jr. became a stockholder in said corporation and president thereof, which position he has continuously occupied to the trial of this cause.

“7. I find that the said Louis Sigel had actual notice of the passage of said ordinance and of the formation of said Buccaneer Hotel Co. and of Mr. Moody’s connection therewith.

“8. I find that in compliance with Sec. 5 of said ordinance, W. L. Moody, Jr., did, within ten days from the passage thereof, signify his agreement thereto and acceptance of said ordinance and all of its terms in writing, which said acceptance was deposited, within the time required by said ordinance, with the Secretary of the City of Galveston. * * *

“11: I find that prior to the actual commencement of the construction of the Buccaneer Hotel, Mr. Shearn Moody, Vice-President of the Buccaneer Hotel Co., at the special instance and request of his father, W. L. Moody, Jr., President of the Buccaneer Hotel Co., defendant herein, called upon Mr. Sigel in person and said to him, in substance, that he understood he (Sigel) had some objection to the proposed hotel occupying the sidewalk on the south side of Avenue Q, and Mr. Moody explained to Mr. Sigel that it was the intention of the Hotel Company to construct- a part of the hotel on the south sidewalk of Avenue Q between 22nd and 23rd streets substantially as it was in fact thereafter constructed, and asked Mr. Sigel if he had any objection or complaint against such action, and that Mr. Sigel. informed Mr. Moody that he did not have any complaint or objection to such action; that this information was communicated by Shearn Moody to his father, W. L. Moody, Jr.

“12. That again during the course of the driving of piling on the sidewalk in question for the construction of the building Mr. Shearn Moody took Mr. Sigel personally to the site and showed him by means of lines the exact part and portion of tire sidewalk proposed to be used and that Mr. Sigel again stated to Mr. Moody that he had no objection or complaint to the using thereof.

“13. I find that the officers of the Buccaneer Hotel Co., and particularly Mr. W. L. Moody, Jr., President thereof, prior to the construction of the hotel as well as during the construction thereof, entertained some doubt as to the Hotel Co.’s legal right to use a part of the sidewalk over the objection of the abutting property owner. His construction of the ordinance was that it operated as a consent from the City to use said sidewalk and estop-ped the City from denying such consent; but, as above stated, he entertained some doubt as to the right of an abutting property qwner to complain. In connection with the findings in this paragraph, I conclude and find that Mr. Sigel consented, acquiesced and agreed to the construction of the portion of the hotel in question on the sidewalk as now complained about; th¿t such consent was unconditional and unqualified and was not revoked until after it had been in good faith acted upon by the Hotdl Company and the hotel completed.

“14. That' the consent, acquiescence, and agreement of the plaintiff, Louis Sigel, to the construction of the encroachment in question, was intended to, and did in fact, influence and lead-the defendant, Buccaneer Hotel Company, into building the hotel on the sidewalk in question, and was relied upon by it, and but for such consent, acquiescénce, and agreement said defendant would not have built any part of the hotel on the- sidewalk in question.

“15'. I find and conchide frbm the evidence adduced in this'Cause that the plaintiff, Louis Sigel, has suffered no special damages differing in kind from that suffered by the public, and no damages otherwise, from the encroachment of the hotel building upon -the side-walk, as complained of in Ms petition. In this connection, I find and state that it was admitted ■at the conclusion of the trial by plaintiff’s attorney. of record that he had failed to show any damage accruing to Mr. Sigel or his property by the encroachment in question.

“16. I find that in constructing the hotel, the building encroaches on the sidewalk a width of 11.85 ft. for a length of 125.8 ft., beginning at a point 104.7 ft. from the northwest corner of said Northwest Block of Out-lot No. 118, which is also the southeast corner of 23rd street and Avenue Q; that from the southeast corner of 23rd street and Avenue Q, for a distance of 104.7 ft. to the commencement of said encroachment the sidewalk has a full width of 16 ft. and is elevated and permanently paved with cement paving and well lighted; that this improvement was done at the expense of the Buccaneer Hotel Company that the remainder of the sidewalk, a distance of 125.8 ft. from the commencement of the obstruction, has been reduced to a width of 5.15 ft., which said space is likewise paved with cement and elevated to conform to the height of the sidewalk west of said obstruction. -1 also find that said width of 5.15 ft. of sidewalk affords ample and convenient space for the passage of pedestrians who may elect to use that side of the street. In this connection, I also find that, because of the peculiar shape of the plot of ground on which the hotel is constructed and the relation thereto of the streets and other sidewalks, pedestrians other than those going to and from the Buccaneer Hotel would have little cause or desire to use conveniently the south sidewalk of Avenue Q between 22nd and 23rd streets, and particularly the east 125.8 ft. thereof.

“17. I find that the encroachment in question consists of a substantially built 2-story steel and concrete building forming an integral part of the main hotel and in which is housed the boiler room, part of the coffee shop, part of the office and the main lobby on the second floor and other important and necessary parts and accessories to the hotel building proper. I also find that the Buccaneer Hotel as a whole is a 11-story building costing approximately $1,000,000.00.

“18. I find that if the Buccaneer Hotel Company were required at this time to remove the encroachment from the sidewalk it would cost approximately $260.000.00 to remove such encroachment and remodel- the hotel building so as to accommodate the departments in the main hotel building within- the property lines proper which are now housed in that portion of the building forming the encroachment. I also find that regardless of the cost of such remodeling, would otherwise seriously impair the usefulness of the building as a hotel or for other purposes if such remodeling became necessary. I find that the actual cost of tearing down, destroying and removing the building ' constituting the encroachment, without any regard to the necessary repairs or remodeling of the hotel building property, would cost approximately $20,000.00.

“19. That the nuisance claimed to exist by reason of garbage cans and other receptacles placed upon the sidewalk on the south side of Avenue Q, and north of the encroachment in question, was abated before the trial of this cause, and no damages to the plaintiff’s premises growing out of such alleged nuisance was proved.”

Upon these fact findings the trial court based the following conclusions of law:

“From the foregoing findings of fact, I find the following conclusions of law:

“1. That Mr. Sigel’s consent, acquiescence, and agreement to the construction- of the encroachment in question as it was in fact constructed, prior to, and during the time it was being erected, and bis failure to voice any protest against such action, until long after the hotel was fully completed and in operation, precludes him from maintaining this suit for the mandatory injunction prayed for, and he is now estopped from seeking the aid of a court of equity to compel the removal or destruction of said encroachment.

“2. That the plaintiff, Louis Sigel, should take nothing by his said suit, and that his prayer for injunctive relief, and in the alternative for damages, be in all things denied.”

May of these fact findings of the trial court are based upon uneontradicted evidence, and all of them are abundantly sustained by the evidence.

In this state of the record it is unnecessary and would serve no useful purpose to consider and discuss the numerous propositions presented in appellant’s brief. All of these propositions become immaterial because of the fact finding of the trial court that appellant consented and agreed to the obstruction of the street of which he now complains, and that, relying upon this agreement, appel-lees Buccaneer Hotel Company and W. L. Moody, Jr., have expended large sums of money which would be lost to them if appellant is now permitted to enforce his legal rights in the street. We think the following counter-proposition presented in appellees’ brief is a conclusive answer to appellant’s suit: “The express oral consent given with full knowledge of the facts, by the owner of abutting property, to the erection of a building in a street the fee of which is not owned by him; is irrevocable after it has been acted upon and large sums expended in the erection of valuable improvements in reliance thereon, and he is estopped thereby from maintaining a suit in equity for a mandatory injunction requiring its removal, or for the recovery of damages, and the court did not err in rendering judgment for appellees.”

This proposition is based upon the maxims of equity jurisprudence which forbid one to take advantage of his own wrong, and require that he who comes seeking relief from a court of equity to come into court with clean hands. These principles of equity jurisprudence are so sound in reason, so consonant with good conscience and fair dealing between man and man, and are so imbedded in American and English jurisprudence, that the citation of any of the numerous decisions in which they have been applied would seem unnecessary. But it will not be amiss to quote from a few of the authorities on this question in which these principles are aptly stated and applied.

In the case of Westerman v. Mims, 111 Tex. 29, 227 S. W. 178, 181, our Supreme Court, in considering a c.ase in which the plaintiff sought relief by mandamus, and denying him such relief, say:

“Among the principles regulating the issuance of writs of mandamus, which cannot be regarded otherwise than as clearly settled, is one which is thus stated in section 1380 of Spelling’s Extraordinary Relief:

“ ‘While the remedy by mandamus is not equitable, but strictly legal, yet by analogy to the principles prevailing in courts of equity it is a uniform requirement that the relator in seeking this remedy must come into court with clean hands.’

“To the same effect, see section 26, High’s Extraordinary Legal Remedies.

“Justice Lamar, speaking for the Supreme Court of the United States, announces the rule to be that—

“ ‘Mandamus * * * will not be granted in aid of those who do not come into court with clean hands,’ since the writ issues ‘to remedy a wrong, not to promote one.’ Turner v. Fisher, 222 U. S. 209, 32 S. Ct. [37], 38, 56 L. Ed. 165.

“See, also, Nevell v. Terrell, 99 Tex. 356, 87 S. W. 659, 89 S. W. 971; Hale v. Risley, 69 Mich. 598, 37 N. W. 570; U. S. ex rel. Stevens v. Richards, 33 App. D. C. 418, 419.

“The rule that he who seeks a mandamus must present his application with clean hands has no different meaning from the geperal maxim in equity that ‘he who comes into equity must come with cle.an hands.’- .

“Prof. Pomeroy states the meaning, pi. the maxim as follows: ■■ ,

‘“It says that whenever a party, ,'-wh'd,"'aá actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in lim-ine ; the court will refuse to interfere in his behalf, to acknowledge.his right, or to award him any remedy.’ •

“He adds:

“ ‘It is not alone' fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose foundation is good conscience.’ 1 Pomeroy’s Equity Jurisprudence, §§ 397, 404.”

In Johnson v. Byler, 38 Tex. 606, it is said:

“Legal estoppels exclude evidence of the truth and equity of the particular case, to support a strict rule of law on grounds of public policy. ■

“Equitable estoppels are admitted on the ground of promoting the equity and justice of the particular ease, by preventing a party from asserting his rights under a general technical rule of law, when he has so conduct ed himself that it would he contrary to equity and good conscience for him to allege and prove the truth.”

Ini the case of Lewis v. Pingree National Bank, 47 Utah, 35, 151 P. 558, L. R. A. 19160, 1260, the Supreme Court of Utah, in an able and well-considered opinion, holds that a plaintiff otherwise entitled to an injunction to prevent an obstruction in a public street is estopped from invoking such remedy when he stands by and acquiesces by his silence in the expenditure by the defendant of a large sum of money in the erection of the building which encroaches upon and partially obstructs the street. This opinion states the rule in such cases to be that, although an encroachment on a public street necessarily constitutes a public nuisance, such nuisance will not always be abated at the instance of a private person; that a court of equity is not bound to make a decree which will work greater injury than the wrong which it is asked to redress, and would operate inequitably and contrary to the real justice of the case.

In the case now before us, the trial court finds, and the great preponderance of the evidence shows, that plaintiff expressly agreed and consented to the use of the street by the appellees in the construction of the hotel, and expressly declared to the agent who was sent by defendants to ascertain whether plaintiff objected to the encroachment on the street of which he complains in this suit, that he had no objection and that the construction of the building as it now stands would increase the value of his property, and that, in reliance upon this assurance of plaintiff, defendants placed a portion of the hotel in the street to the extent shown in the findings of the trial court. No stronger case of equitable estoppel would be made than this, and the estoppel extends as well to the claim for damages as to the right to an injunction.

But appellant contends that the plea of es-toppel is fatally defective, in that it fails to allege that the defendants relied upon the statements of plaintiff before set out, and but for such statements would not have obstructed any part of the street in the construction of the hotel; and, there being no pleading to support the evidence establishing this essential element of estoppel, such evidence was inadmissible over plaintiff’s objection, and the judgment should be reversed on this ground.

This contention cannot be sustained. The sufficiency of the plea was only called in question by a general demurrer against which every reasonable intendment of the pleader must be indulged. Chapman v. Mooney (Tex. Civ. App.) 257 S. W. 1106; City of Austin v. Schlegel (Tex. Com. App.) 257 S. W. 238; Stovall v. Texas Co. (Tex. Civ. App.) 262 S. W. 152.

We think the plea of estoppel before set out was sufficient as against the general demurrer presented by plaintiff. It is certainly a reasonable inference from the averments of the plea that appellees relied upon the consent and agreement of plaintiff in placing a portion of the hotel buildin'g in that portion of the street which was closed by the order of the city board of commissioners, and would not have so encroached upon the street if plaintiff had not consented and agreed to such encroachment. This being a reasonable in-tendment of the pleading, the failure to specifically allege such reliance could only be raised by a special exception to the plea. No such exception was presented, and .it is a settled rule of decision in this state that such defects in a pleading cannot, in the absence of a special exception, be taken advantage of by objection to the evidence. The following cases directly support these conclusions: Shaller et al. v. Allen (Tex. Civ. App.) 278 S. W. 873; Western Medical Arts Bldg. Corporation v. Bryan et al. (Tex. Civ. App.) 5 S.W.(2d) 862; Colorado Canal Co. v. McFarland & Southwell (Tex. Civ. App.) 94 S. W. 400; Patterson & Wallace v. Frazer (Tex. Civ. App.) 79 S. W. 1077; Black v. Drury, 24 Tex. 289.

In the case last cited the reason and justice of the rule forbidding defects in pleadings, good as against a general demurrer, to be raised only by objection to the evidence, is thus clearly and forcibly stated:

“The question in this case, is, whether or not, the plea of reconvention was sufficient to authorize the admission of any evidence offered in support of it. This is a mode of testing the sufficiency of pleading, which must be entertained with great caution; for it is adopted at a stage of the trial, when all opportunity of amending the pleading, if defective, is lost. The substantial rights of a party may thereby be lost forever, by the unskil-fulness, or even inadvertence of the pleader. A party announces himself ready for trial, upon a plea which seeks to present a meritorious defence. No objection has been taken -to it, and he is apprised for the first timer that its sufficiency is contested, by an objection to his evidence. The unskilful or negligent practitioner is thus entrapped, without being in a position, to attach any blame to his antagonist for the predicament in which he finds himself placed. If his plea is really defective, he cannot complain that the opposite party has not aided him, by excepting and pointing out the defect, at a time when he could have cured it, by an amendment of the plea.

“On the other hand, the party who seeks such an advantage, by not excepting to the plea, but by objecting to the admission of the evidence under it, must expect that the plea will be taken and understood in its full force against him. He has waived the right of making special exceptions to it. If it be good on general demurrer, and will sustain a verdict and judgment rendered upon it, bis objection cannot prevail.”

It follows from these conclusions that judgment should be affirmed. Justice GRAVES dissents from this affirmance, and will file a statement, of the grounds of his dissent.

Affirmed.-