action is a corporation." It is further stated in a note on the same page, with citation of authorities to which we do not have access, that "public officers may bind a municipal corporation by way of an account stated." See, also, the case of St. Louis Gas Co. v. City of St. Louis, 84 Mo. 203, where it is said (quoting from the reported syllabi): “A settlement made by the city auditor with the gas company is, in the absence of fraud or mistake, conclusive as to the amount due by the city at the date of the settlement." So that, as at present advised, we feel that we must attach to the action of the town council of Anson on September 6, 1912, the same legal consequences that should be attached to like action on the part of an in this report it appeared that a balance of $73.44 was due appellant; that at the time stated, to wit, September 6th, the report was "received and adopted," such action being duly entered upon the minutes, which were later signed and approved. It further appears that on the next day a draft in Smith's favor for the balance stated upon the treasurer of the town was duly executed by the mayor and city secretary, which upon presentation was duly paid to appellant. It further appears, however, that the council again met on September 20, 1912, whereupon the following order was made: "By motion it was ordered to rescind the action of the preceding meeting of the council in approving a report from city attorney, S. J. T. Smith, in which were included items of serv-dividual, or any other species of corporation. ice rendered the city in connection with the street improvements, notes and accounts due the city, and for commissions and fees for same." The controlling question on this appeal is whether, after the action of the council on September 6th and the subsequent payment of the balance then found to be due Smith, the council could, as it attempted to do on September 20th, rescind its former action and maintain the present suit. If it could so rescind, then we find nothing in the present record which would authorize us to reverse the judgment below. If it could not, then we think the judgment must be reversed and here rendered in appellant's favor. [1] In behalf of appellee it is not contended that appellant's report submitted to the town council on September 6th was insufficient in form to constitute an account stated. See 1 Cyc. 372, par. C. Nor is it seriously contended that the action of the council at that time taken would not, in the absence of its cancellation, ordinarily have the legal effect of finally concluding the matters then involved. But the contention is: First, that the principles relating to a "stated account" have no application to a municipal corporation; and, second, that if so, the town council had full authority to rescind its previous action. Towns and villages of the grade of appellee may become incorporated municipali ties under the terms of our statute relating to the subject, and as such, as is expressly provided (Revised Statutes, art. 1042), are "invested with all the rights incident to such corporations * * * and shall have power to sue and be sued, plead and be impleaded, and to hold and dispose of real and personal property," etc. Nothing that we find in the statutes so limits the powers of the mayor and board of aldermen in dispos ing of the fiscal affairs of the town as will once stated, seems then to have been duly relieve their good-faith acts in this respect | from the ordinary legal consequences, or to require us to differentiate as to the subject now under consideration between an incorporated town and any other private corporation, and we find it stated in 1 Cyc. 385, that: "A debt may be converted into a stated ac [2] So concluding, we are of the further opinion that under the circumstances the further action of appellee's town council in attempting to annul the settlement of September 6th was unauthorized. It is true that ordinarily a town or city council may rescind its previous acts before the rights of third persons have vested. See Dillon on Municipal Corporations, vol. 1, § 290. But in the case before us the account under consideration was duly presented to the town council, was considered, and formally received and adopted and acted upon by the mayor and city secretary by formally issuing a warrant in appellant's favor for the balance due him, as shown in the stated account, and this warrant was fully paid by the town treasurer before any attempted rescission took place. It is not alleged in appellee's petition in this case that such consideration and adoption of appellant's report was induced by any fraud, or that the result was brought about through inadvertence or mistake, nor can effect be given the oral testimony of one or more of the aldermen that they understood the action and order of September 6th as a mere reception of the account. See City of Dallas v. Beeman, 18 Tex. Civ. App. 335, 45 S. W. 626; 1 Dillon on Municipal Corporations, §§ 298, 299. The transaction, therefore, assumed the form of a completed settlement between the parties beyond their power of further control. Clearly appellant, after the settlement of September 6th, and after he had received payment of the city warrant issued in his behalf, could not thereafter, without an allegation of fraud, accident, or mistake, have instituted suit and recovered fees and commissions for the services specified in the account other or greater than then allowed him. The account, as we have more than rendered, acted upon, and finally settled, and the binding obligation of the settlement we think mutual, and precludes the appellee town from now claiming that appellant's services were of less value than stated in his original account, or that it could against appellant's consent rescind the settlement made. Where secondhand household furniture and Chapman, 16 S. W. 543; Gillian v. Alford, [ 4. DAMAGES (§ 113*)-MEASURE-INJURIES TO PERSONAL PROPERTY. 69 Tex. 267, 6 S. W. 757; H. & T. C. Ry. Co. v. McCarty, 94 Tex. 298, 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854; Brown v. Winterport, 79 Me. 305, 9 Atl. 844; 28 Cyc. 340, par. G; 1 Cyc. p. 443, par. 7, and authorities cited in notes. There is a suggestion in behalf of the appellee town that the payment made appellant was improperly made out of a special fund, and the payment was made without an express order of the council, as required by an ordinance of the town offered in evidence. But the formal action of September 6, 1912, seems to have been accepted by the mayor and city secretary and by the town treasurer as a sufficient order on the part of the council to authorize the payment made. It is not charged that these officers acted in bad faith, and nothing is shown in the record forbidding the payment out of the improvement fund. Moreover, the suggestions affect only the item of $73.44, and in no way affect the conclusive effect of the settlement of September 6, 1912. See City of Tyler v. Jester & Co., 97 Tex. 344, 78 S. W. 1058, 1059. We conclude that the judgment should be reversed, and here rendered for appellant, that the town of Anson recover nothing herein, and that appellant go hence without day recovering his costs. GALVESTON, H. & S. A. RY. CO. v. WALL RAVEN. wearing apparel is wholly destroyed, a proper method of arriving at their value at the time of the loss is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, their condition at the time, etc., and from these and other pertinent facts to determine the present value. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.*] Appeal from Galveston County Court; Geo. E. Mann, Judge. Action by Willie Wallraven against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Baker, Botts, Parker & Garwood, of Hous ton, and W. T. Armstrong and Wm. B. Lockhart, both of Galveston, for appellant. Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellee. TALIAFERRO, J. This was an action by Willie Wallraven, appellee, against the Galveston, Harrisburg & San Antonio Railway Company, appellant, to recover $530 damages to a shipment of secondhand household goods, furniture, and wearing apparel, shipped by appellee over the appellant's line of railroad from San Leon to Galveston, in the county of Galveston, Tex. The case was tried in the county court without a jury, and resulted in a judgment for appellee for the sum of $430. Appellant contends that under the pleadings of appellee the evidence was not suffi (Court of Civil Appeals of Texas. San Anto-cient to sustain the judgment, and this con nio. Oct. 22, 1913.) 1. DAMAGES (§ 113*)-MEASURE-INJURIES TO PERSONAL PROPERTY. The measure of damages for injuries to secondhand household goods and wearing apparel is the difference in their actual value just prior to and just after the injury, and not the difference in the market value of similar goods at secondhand stores at or nearest their desti nation. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.*] 2. DAMAGES (§ 174*)—INJURIES TO PERSONAL PROPERTY-VALUE. tention must be sustained. In her original petition, appellee alleged that at the time the goods were delivered to appellant, on February 9, 1912, they were in good condition, ready for shipment, but that appellant's agent left the goods exposed upon the depot platform without covering, protection, or shelter for a period of more than three weeks before they were shipped, and that during that time they were rained upon, and were wet and damaged by such exposure, and that the goods were not received by her at Galveston until March 1, 1912. Appellant's negligence was alleged to be its failure to promptly ship the goods, and its failure to properly cover and protect them prior to shipment. Although the court overruled all of the appellant's exceptions to the petition, the court permitted appellee to file what was termed her first supplemental petition, in which the allegation that the goods were In an action for damages to secondhand left upon the appellant's platform exposed household goods and wearing apparel, evidence as to the difference in the market value of sim- to the rain was abandoned, and she alleged ilar goods before and after the injury is inad- that the goods were loaded by the station missible, unless it be shown that the differ-agent into an old, worn-out and discarded ence in the market value and the difference in box car, which was being used by appellant In an action for injuries to secondhand personal property, evidence of the original cost of the property in the market, the manner, time, and place of its use, its appearance before and after the injury, and its relative usefulness and physical condition is competent. [Ed. Note. For other cases, see Damages. Cent. Dig. §§ 462-467; Dec. Dig. § 174.*] 3. EVIDENCE (§ 142*)—INJURIES TO PERSONAL PROPERTY. the actual value is the same. [Ed. Note.-For other cases, see Evidence, at the station of San Leon as a warehouse; Cent. Dig. §§ 416-423; Dec. Dig. § 142.*] that the said box car was not properly pro tected, covered, or inclosed so as to prevent | that the difference in the market value bethe rain from falling into and upon her goods fore and after the injury may be also the and damaging them as described; that ap- difference in the actual value; but it is pellant allowed said goods to remain in the equally obvious that it is not necessarily so, old box car for three weeks before forward- and, to justify proof of the difference in the ing them to Galveston, during which time market value as the measure of damage in they became mildewed, rotted, and damaged such a case, the proof must also show that to the extent described. No allegation was such was the difference in the actual value. made to show what damage, if any, would Since this case is to be reversed, and in view have been suffered by appellee from the mere of a new trial, we will say that we think delay of her goods if they had not been the difference was insufficient to establish wet. The only allegation and proof of dam- the actual value. An effort was made to ages is based upon the injury resulting from show value by testimony as to the market the goods having been allowed to get wet. value of such goods. As has been stated, Appellant contends that the proof is not suffi- the damages to such goods cannot be estabcient to show that the goods were exposed lished by that character of evidence. There to the rain and weather by reason of its is a decided difference between the proof negligence. We have very carefully examin- of what the particular goods cost in the mared the record, and have reached the conclu- ket and the value of similar goods in the sion that appellant's position upon this point open market. is well taken. It is not denied that a part of the goods were exposed to a very hard rain while being hauled to the station in the care of appellee's own agent, and that they became very wet. There is no evidence of the slightest probative force which goes to establish the fact that the goods were exposed to the rain while in appellant's custody. On the contrary, the evidence contained in the record must necessarily lead the unbiased mind to the conclusion that no rain was permitted to fall upon them while they were in the box car warehouse. In view of the reversal of the case, we will not discuss the evidence. [4] In this case some of the goods were wholly lost or destroyed, and some were only damaged. The rule of the measure of damages is quite different in the two instances. The rule that governs when goods are only damaged has already been stated. Where the goods are wholly destroyed, "a proper method of arriving at their value at the time of the loss is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, their condition at the time," etc., and from these facts and such other facts as were pertinent to determine the present value. Wells Fargo Express Co. v. Williams, supra, and cases there cited. Appellee's testimony was not competent to establish the measure of damages under either of the above rules. [1-3] By its seventh assignment of error appellant contends that the judgment of the court is unsupported by the evidence, because the testimony was incompetent to establish the damages complained of by appellee. The rule is now well settled in Texas that the measure of damages for damage to secondhand household goods and wearing apparel is the difference in their actual value just prior to and just after the injury, and not the difference in the market value of similar goods at secondhand stores at or nearest their destination. And it seems that it is not necessary to allege or prove that such goods have no market value to predi- judgment is reversed, and the cause cate proof of actual value. Wells Fargo Ex-manded. press Co. v. Williams, 71 S. W. 314; Bene Appellant's eighth and ninth assignments attack the judgment as excessive. Upon these assignments we think it improper to pass. dict v. C., R. I & P. Ry. Co., 91 S. W. 811; I. & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; The twelfth, thirteenth, fourteenth, and fifteenth assignments assail the ruling of the court in admitting the evidence of certain witnesses upon value. In view of what has been said upon this subject, we think it is unnecessary to consider these assignments. For the reasons above pointed out, the re Railway Co. v. Smythe, 55 Tex. Civ. App. HIGGINBOTHAM BROS. & CO. v. BREED. 557, 119 S. W. 895. In such a case all such pertinent facts and circumstances as will place before the jury material data which will enable them to reach a fair valuation or estimate of the plaintiff's damage are admissible in evidence. The original cost in the market and the manner and time and place of its use, the appearance before and after the alleged injury, and the relative usefulness and physical condition may be offered in evidence to show the damage. It is obvious (Court of Civil Appeals of Texas. Austin. ORDS. The record of a deed of trust purporting to cover 17 acres within the town of Z., described as having been deeded to the grantor by S. about two years prior thereto by a deed described as being of record, was not constructive in a survey not mentioned in the deed of trust, notice to a subsequent purchaser of 121⁄2 acres lying outside the boundaries of the town of Z. and all additions thereto, which had been conveyed to the grantor by a deed from S. and his wife executed about six months prior to the execution of the deed of trust, and which had not been recorded at the date of the deed of trust, that the deed of trust covered such land if it in fact did. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.*] trust) to which are of record in Brown county, Texas, to which reference is made for description of same'-which deed of trust was duly acknowledged and filed for record in Brown county, Tex., February 6, 1908, at 8 o'clock a. m., and duly recorded February 13, 1908, in volume L, pp. 327-329, Records of Brown county, Tex. "(5) I find that on the 12th day of NoAppeal from District Court, Brown Coun-vember, 1908, Geo. W. Hill, by his warranty ty; John W. Goodwin, Judge. Action by Higginbotham Bros. & Co. against Mrs. W. N. Breed and others. From a judgment in favor of the defendant named, plaintiff appeals. Affirmed. deed of that date, sold and conveyed to Mrs. W. N. Breed, a feme sole, in consideration of $1,550, $1,200 cash and two notes for $175 due one and two years after date, and dated November 12, 1908, a tract of land Goodson & Goodson, of Comanche, for ap- described in said deed as follows: 'All that pellant. KEY, C. J. Appellant, a private corporation, brought this suit against Geo. W. Hill, seeking recovery upon a promissory note and the foreclosure of a deed of trust. Mrs. W. N. Breed was made a party defendant, the plaintiff alleging that she was asserting title to the land covered by the mortgage, and a foreclosure was sought as against both defendants. The defendant Hill filed no answer, but Mrs. Breed answered by a general denial and other pleas unnecessary to be stated. There was a nonjury trial, which resulted in a judgment for the plaintiff against the defendant Hill for the debt and foreclosure upon the property as described in the mortgage but awarding no relief as against Mrs. Breed, and the plaintiff has appealed. certain tract or parcel of land in Brown county, Texas, a part of the Felix Wardziski survey, No. 324, abstract No. 962, more particularly described as follows: Beginning at the N. E. corner of the Ed Couch tract from which a P. O. vrs. N. 334 W. 10% vrs., a P. O. south 28% W. 11⁄2 vrs.; thence N. 255 vrs. to a stone set on the N. side of the Zephyr and Comanche road; thence W. with said road 169 vrs. to E. corner of the W. T. Scott tract from which a L. O. brs. S. 61 W. 26 vrs.; thence S. 57 W. 186 vrs. to a stake in N. W. side of said above-mentioned road; thence S. 33 E. 196.6 vrs. to a stake in N. line of Ed Couch tract made for A. A. Sheppard S. E. corner; thence with Ed Couch N. line 1992 vrs. to the beginning, containing 121⁄2 acres. But it is expressly understood that the land herein conveyed does not include the 20-foot strip sold to The trial judge filed the following findings A. A. Sheppard from the S. side of the aboveof fact and conclusions of law: "Conclusions of Fact. "(1) That Geo. W. Hill, defendant, is a nonresident of Texas, and the only character of service had upon him in this case was a notice, such as is provided for by the Revised Statute, art. 1869. "(2) That defendant Geo. W. Hill did not appear or file answer herein but made default. "(3) That Geo. W. Hill executed the note sued upon and described in plaintiff's petition, and that the amount stated in this judgment is the balance due on said note, which note is payable to plaintiff herein, who is the owner and holder thereof. "(4) That on the 30th day of January, A. D. 1908, Geo. W. Hill made, executed, and delivered to plaintiff in this cause a deed of trust, naming D. Charles Clark as trustee, conveying to said trustee, for the purpose of securing plaintiff in the payment of note referred to in third finding of fact, among other lands, a tract described in said deed of trust as follows: '17 acres of land in the eastern part of the town of Zepher, Brown county, Texas, deeded to me by W. R. Shelton about 2 years ago; the deeds (several tracts of land were conveyed in the deed of described tract of land.' This deed was duly acknowledged and filed for record December 2, 1908, at 1 o'clock p, m., and recorded in Deed Records of Brown county, Tex., vol. 98, p. 392. "(6) I find that on the 2d day of August, A. D. 1907, W. R. Shelton and wife, Nannie Shelton, by their deed of that date, sold and conveyed to Geo. W. Hill the tract of land described in the deed from Geo. W. Hill to Mrs. W. N. Breed, which deed was duly acknowledged and filed for record in the office of the county clerk of Brown county, Tex., November 6, 1908, and recorded November 12, 1908, in volume 93, p. 356, Deed Records of Brown county, Tex. "(7) I find that, at the time Mrs. W. N. Breed purchased the land described in the fifth finding of fact, she knew nothing of the existence of the deed of trust described in fourth finding of fact, and that she had no actual knowledge of the existence of said deed of trust when she paid for the land so conveyed to her, and that she paid $1,200 cash at time deed bears date, and later paid the two notes for $175 each, given for the balance of the purchase money, and that at the time she paid said notes she had no actual knowledge or notice of said deed of trust, and that she at all said times had no constructive notice of said deed of trust unless the recording thereof gave her such notice. "(8) I find there is not, and never has been of record in Deed Records of Brown county, Tex., any deed from W. R. Shelton to Geo. W. Hill, but that, at the time Mrs. Breed purchased the aforesaid tract of land from Geo. W. Hill, there was of record the deed described in the sixth finding of fact, the same being from W. R. and Nannie Shelton to Geo. W. Hill, and filed for record November 6, A. D. 1908, at 11 o'clock a. m., and which described the land as set forth in the sixth finding of fact. "(9) I find that when the deed of trust described in the fourth finding of fact was filed for record in Brown county, Tex., on February 6, 1908, there was no deed of record in Brown county, Tex., to Geo. W. Hill from either W. R. Shelton or from W. R. Shelton and wife, and that the deed from W. R. Shelton and wife to Geo. W. Hill was not filed for record until November 6, 1908. “(10) I find that the land sold by Geo. W. Hill to Mrs. Breed is not situated within the limits of the town of Zephyr, as laid out by original plat and addition thereto, but lies beyond such limits some fourth of a mile from the limits of said town as laid out and used. "(11) I find that the town of Zephyr is unincorporated and is a village of some 500 or 600 people and has stores, churches, schoolhouses, residences, and has streets and alleys, and that several additions to said town have been made at different times, but that the land in question and claimed by Mrs. Breed lies without and beyond the original town and all additions thereto. "(12) I find that the land described in the deed of trust is not, from the description given therein, the same land as that conveyed by Geo. W. Hill to Mrs. Breed, and that the description is not sufficient to give her record notice that said land was the same conveyed to her by Geo. W. Hill and not sufficient to put her upon inquiry. "Conclusions of Law. "(1) That plaintiff is entitled to establish his debt against Geo. W. Hill and to a foreclosure of his deed of trust on the land described therein. "(2) That the deed of trust does not cover the land of Mrs. Breed, and plaintiff is not therefore entitled to foreclosure of the deed of trust as to her or as to the land conveyed to her by Geo. W. Hill. "(3) That Mrs. Breed is an innocent purchaser for value and without notice of plaintiff's deed of trust, actual or constructive, and plaintiff is not therefore entitled to foreclosure of its deed of trust as to her on the land claimed by her. "(4) Plaintiff is entitled to judgment establishing his debt as against Geo. W. Hill and the land described and as described in said deed of trust as against said Hill and said Hill only. "(5) That plaintiff take nothing as against defendant Mrs. Breed, and that she go hence without day and recover her costs." In addition to the judge's findings of fact it is proper to state that the undisputed proof showed that W. R. Shelton had never sold or conveyed to Geo. W. Hill any land other than that conveyed by the deed from W. R. Shelton and wife to Geo. W. Hill, dated August 2, 1907. Opinion. The trial judge's seventh finding of fact, to the effect that up to the time that Mrs. Breed finished paying for the land she had no actual knowledge or notice of appellant's deed of trust, is not challenged, and therefore we dispose of the case upon the assumption that the finding referred to is correct. Appellant's contention is that the registration of the mortgage constituted constructive notice, and therefore Mrs. Breed was not entitled to protection as an innocent purchaser, as held by the trial court, but we are unable to concur in that contention. G. W. Hill sold and conveyed to Mrs. Breed a tract of land described as part of the Felix Wardziski survey, and further described by metes and bounds, and to contain 12% acres, less a strip 20 feet in width off of the south side, which had formerly been sold to another party. The land so conveyed was not described as located within, and in fact was not and is not located within, the boundaries of the town of Zephyr, or of any addition thereto, as the same had been platted and recorded. Appellant's mortgage does not refer to any land on the Wardziski survey, nor any land outside of the town of Zephyr, but purports to convey, not any portion of a 121⁄2acre tract, but 17 acres of land within the town of Zephyr, and further described as land deeded to Hill by W. R. Shelton about two years prior to the date of the mortgage, and the deed to which is described in the mortgage as of record in Brown county at that time. Now, the deed from W. R. Shelton and wife to Hill, under which Mrs. Breed claims, was executed only about six months prior to the execution of appellant's mortgage and was not recorded at the time the mortgage was executed. seems to us, justify a reasonably prudent person in reaching the conclusion that the mortgage was intended to convey a different tract of land from the one conveyed by Hill and wife to Mrs. Breed. Hence we conclude that the trial court was correct in holding that Mrs. Breed was entitled to protection as an innocent purchaser. case is readily distinguishable from Wilkerson v. Ward, 137 S. W. 158, and other cases relied on by counsel for appellant. Those facts would, it We think this |