author: BAUGH, J.

text:
    MARSHALL v. WHITE et al.
    No. 7600.
    Court of Civil Appeals of Texas. Austin.
    May 20, 1931.
    Rehearing Denied June 10, 1931.
    Bryan, Cosby, Suhr & Bering, of Houston, for appellant.
    Scruggs & Grobe, A. Milton Vance, and Abe W. Wagner, all of Houston, for appellees.
   BAUGH, J.

Appellee, joined pro forma by her husband, sued appellant for damages, alleging conversion by appellant in February, 1928, of an electric piano, ceiling fan, and ticket machine, belonging to her and used in the operation of a moving picture show. Appellant, in addition to general and special denials, filed a cross-action for approximately $1,500, claimed to have been expended by him for alterations in one of his buildings in Houston so that same could be used by appellee to operate a moving picture show; alleging that same was so expended by him under an agreement with ap-pellee to lease said property and repay him for all such expenditures. ,He also alleged that the property here involved was placed in his possession as a pledge to secure the cost to him of said alterations; and asked that his lien thereon be foreclosed along with judgment for his debt. The case was submitted to a jury upon special issues, all of which were found against appellant, and the value of the property found to be $1,450. Appellee admitted that she had agreed to pay as much as $400 on the cost of changing said building, payable monthly, with 8 per cent, interest thereon. Judgment was rendered for appel-lees for $1,075, from which Marshall has appealed.

The evidence was sharply conflicting on the issues submitted. The findings of the jury are therefore binding on this' court where there is sufficient competent evidence to support them. We find that the evidence was sufficient to sustain the jury finding's on all issues except the fifth, which was that the reasonable market value at Houston on February 17, 1928, of the piano was $1,000; of the fan, $325; and of the ticket machine, $125. The evidence was sufficient to support the finding as to ticket machine and perhaps as to the fan. But as to the electric piano the only testimony we find on which such finding could be sustained was, that of Paul Barracco. This witness was shown to have previously owned or operated several picture shows and at the timé to be operating one in Houston for whites and negroes. He had also bought and sold secondhand such equipment as that here in controversy. He testified on direct examination that he had seen said electric piano, and that in his opinion its fair market value was $3,000. After market value was explained to him by the court, on redirect examination he reduced this valuation to $1,500 or $1,600. On cross-examination, however, he testified: “I do not know what it was worth at that time. I do not know how long it was used, I did not examine it.”

Appellant moved to strike out as incompetent his testimony as to market value on the ground that he had not properly qualified as to this particular piano. We think the court erred in refusing to do so. His qualifications were as to this character of musical instruments generally. The evidence showed that this particular piano was about 15 years old, was obsolete, had been in use in the oil fields near Beaumont before it was brought to Houston, was secondhand when purchased by ap-pellee, and that it was about worn out. If Barracco’s testimony be discarded, there was no testimony which would sustain the value of the piano found by the jury.

The instrument in question was not a common commodity on the market, 'but an intricate piece of electrical machinery whose value,whether market or intrinsic, must of necessity depend, not upon its outward appearance, but its age, type, the nature, character, and extent of its use, and its mechanical condition; Of necessity, therefore, to know such value requires a knowledge of these matters, of which the witness admitted that he knew nothing. Such an instrument might readily present a good outward appearance, and yet be worthless in its operation. We think that the witness, not only failed to show himself competent to testify as to market value, but under his admissions on cross-examination showed himself not qualified to do so. This rendered his testimony inadmissible and requires a reversal of the case. Waldrop v. Goltzman (Tex. Civ. App.) 202 S. W. 335; Tyler S. E. Ry. Co. v. Hitchins, 26 Tex. Civ. App. 400, 63 S. W. 1069; Ft. Worth & R. G. Ry. Co. v. Bryson & Burns (Tex. Civ. App.) 195 S. W. 1165.

The other errors complained of will probably not occur upon another trial, and the newly discovered evidence can then be available. For the. reason stated,-the judgment of the trial court is reversed, and the cause remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: JONES, C. J.

license: Public Domain

text:
    LASSITER v. BOUCHE et al.
    No. 10834.
    Court of Civil Appeals of Texas. Dallas.
    June 13, 1931.
    Rehearing Denied July 11, 1931.
    See, also, 5 S.W. (2d) 831, 14 S.W.(2d) 808.
    W. N. Coombes and White & Yarborough, all of Dallas, for appellant.
    Locke, Locke, Stroud & Randolph, of Dallas, for appellees.
   JONES, C. J.

This suit was instituted October 23,1924, by Mrs. M. W. Lassiter, appellant, against ap-pellees, Mrs. Jennie L. Bouche and Julius Edmund Bouche, to establish a parol trust in an undivided one-half interest in real estate located in the city of Dallas. The case was tried to a jury and resulted in a' verdict in favor of appellees, and judgment was entered in accordance with the verdict. The appeal is duly perfected. The facts essential to an understanding of the issues discussed are:

In 1879, Elisha H. Kendall, the grandfather ■of appellant, died intestate, leaving his wife, Mrs. Julia Kendall, and three'children, ap-pellee Jennie L. Bouche, C. P. Kendall, and Mrs. Mollie E. Wright, mother of appellant. The land was community property, and the ownership thereto, on decedent’s death, vested one-half in the surviving wife, Mrs. Julia Kendall, and one-sixth in each of the children. On April 23, 1883, Mrs. Wright, joined by her husband, J. W. Wright, parents of appellant, by general warranty deed, conveyed, tó O. P. Kendall and appellee Jennie L. Bouche, Mrs. Wright’s interest in the property in controversy, together with other property, for a consideration of $1,250 cash and the conveyance to Mrs. Wright of 160 acres of land situated in Marion county, Tex. The re■cited cash consideration was paid and the deed of conveyance of the Marion county land duly executed and delivered to Mrs. Wright. The title to the property in controversy then became vested, an undivided one-half interest in Mrs. Julia Kendall, an undivided one-fourth interest in appellee Mrs. Jennie L. Bouche, and an undivided one-fourth interest in C. P. Kendall.

C. P. Kendall died testate January 10,1S95, .and Mrs. Julia Kendall died testate in September, 1896; the will of each was duly probated and their respective estates vested under the respective terms of their wills. After the death of O. P. Kendall and Mrs. Julia Kendall, the land in suit was owned, a one-half interest in Mrs. Bouche; this interest is •composed of the one-sixth interest inherited from her father, the one-twelfth interest acquired by deed from the Wrights, and a ■one-fourth interest acquired through the will of Mrs. Julia Kendall; the other one-half interest was owned by appellee Julius Edmund Bouche and is composed of a one-fourth interest acquired through the will of O. P. Kendall and a one-fourth interest acquired through the will of Mrs. Julia Kendall.

It is the contention of appellant that there was no consideration passed to her mother, Mrs. Wright, for the execution of the deed of April 23, 1883; that the deed was executed for the sole purpose of protecting Mrs. Kendall and her son, C. P. Kendall, an incurable invalid, in the use and occupancy ■of the land as a home during their lives, with the oral agreement that, at their •deaths, it would be partitioned between Mrs. Wright and appellee Mrs. Bquche without reference to the deed. Appellant testified that, shortly after the death of Mrs. Julia Kendall, she heard a conversation between her mother, Mrs. Wright, and her aunt, Mrs. Bouche, in which her mother reminded Mrs. Bouche of such agreement, and also in which her mother stated that she would contest the wills of O. P. Kendall and Mrs. Julia Kendall, unless Mrs. Bouche would recognize the agreement and would consent to a partition of the property, as provided for in the agreement. Appellant further testified that Mrs. Bouche acknowledged the agreemen't and consented to the contention of her mother, and promised that the property should be so partitioned; that an agreement was entered into by which the husband of Mrs. Bouche should rent the property until it should be sold, and that, after taxes and expenses of upkeep were paid, one-half of the net profits of the rent would be remitted to her mother until the property could be sold; that her mother received rent under this agreement up until the time of her death; ’ that during her mother’s lifetime she executed to appellant a deed of conveyance of her interest in the land,' and that in 1923 she came to Dallas and demanded of Mrs. Bouche a partition of the property under the agreement, but that appellee denied the existence of such an agreement, denied the admission made on the occasion; just after the death of Mrs. Kendall, and this suit was then instituted.

This is the second appeal of this case; on the first appeal this court affirmed the judgment in favor of appellees, peremptory instruction having been given in their favor by the trial court. A writ of error was granted, and the Supreme Court, through an opinion of the Commission of Appeals, affirmed the judgment in so far as it affected the interest of ap-pellee Julius Edmund Bouche, but reversed and remanded the case in so far as it affected the interest of Mrs. Bouche, acquired by the deed from the Wrights in 1883. The effect of the judgment entered by the Commission of Appeals is to confirm title in Julius Edmund Bouche of a one-half interest in the land in controversy, and to confirm in Mrs. Bouche her interest in the land, except a one-twelfth interest she asserts she acquired by the 1883 deed, and to reverse the cause for a trial on the merits as to the ownership of this one-twelfth interest in the land, the Supreme Court’s holding being to the effect that the evidence of appellant as to the oral trust agreement did not come under the inhibitions of article 3716, R. S. 1925, and that the trial court and this court erred in holding that appellant’s evidence as to said conversation between Mrs. Bouche and her mother was inadmissible. The opinion on the former appeal of this court is reported in 5 S.W.(2d) 831, and the opinion of the Commission of Appeals is reported in 14 S.W.(2d) 808. Both of these opinions are referred to for a further statement of the issues involved.

The issue as tó the existence of the parol trust was the only disputed issue to be tried in the lower court, and the court, under the opinion of the Supreme Court in the former appeal, properly directed a verdict in favor of Julius Edmund Bouehe, and properly submitted to the jury the issue relating to the existence of the agreement creating in parol an express trust in favor of Mrs. Wright. The jury returned its finding that no such parol agreement existed, and judgment was entered accordingly. This finding is sustained by the evidence and is adopted as the finding of this court. Hereafter, the term appellee will refer to Mrs. Bouehe.

There are several assignments of error, but in our opinion only two call for a discussion by-this court, viz.: (a) Error in sustaining ap-pellee’s objection to certain questions asked the jury in the voir dire examination, and (b) error in the admission in evidence of a number of letters'in reference to the. consummation of the sale by Mrs. Wright of her interest in the land, as evidenced by the deed of 1883. These two issues will be discussed in the order named.

The questions propounded. to each member of the jury by appellant’s counsel, and not allowed by the court, are an attempt to elicit from the jury the fact as to whether there existed any prejudice against the use of an oral agreement to dispute the terms of such written documents. The questions were varied in form' as objections were sustained, but all questions, in substance, were as stated. The objection sustained was, in effect, that it was an attempt to secure from the jurors, in advance of a hearing of the evidence, an expression as to the weight a juror would give such evidence.

The record shows that, after it was explained by counsel to the jury that appellant would rely upon an alleged oral agreement and the defendant would rely upon a written agreement, and that the proof of appellant’s case would be by oral testimony, while the proof of appellee’s case would be mainly by written evidence, each juror, in response to questions asked, stated that he had no bias or prejudice against" appellant in this kind of a lawsuit; that he knew'of no reason why, if chosen on the jury, he would not make a fair and impartial juror; that he would try the case according to the evidence as it was given from the witness stand, and other evidence admitted by the court, and would be governed by such evidence and the law, as given by the court.

The preliminary examination of a jury by counsel, and the extent to which it may be carried, rests in the discretion of the trial court. It is a discretion that can be abused, and, if it should appear that a litigant had been denied a substantial right by the court’s refusal to permit counsel to elicit information that, in justice to himself and his client, he is entitled to have for an intelligent exercise of challenges, such refusal would constitute reversible error. Houston & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S. W. 670.

Counsel should not be permitted, by questions to a prospective juror, to commit such juror, in advance of the evidence, as to the weight he would give any certain evidence. We axe inclined to the opinion that the questions sought to be propounded to jurors b5r appellant’s counsel infringed upon this rule. If mistaken in this conclusion, we are of opinion that, each juror having answered, after a knowledge of the character of evidence which would be relied upon by each party to-prove their contentions, he had no prejudice or bias in such a case, the trial court did not abuse-its discretion in refusing to permit the respective questions propounded by appellant. Galveston, H. & S. A. Ry. Co. v. Contois (Tex. Civ. App.) 279 S. W. 929; Merkel v. State, 75 Tex. Cr. R. 551, 171 S. W. 738, 740; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 345; Ellis v. State, 69 Tex. Cr. R. 468, 154 S. W. 1010; Parker v. Sehrimsher (Tex. Civ. App.) 172 S. W. 165; Campbell v. Campbell (Tex. Civ. App.) 215 S. W. 134; Cooper & Jones v. Hall (Tex. Civ. App.) 168 S. W. 465.

The other issue to he determined is in. reference to the admission of the letters. These letters were offered by appellee to rebut the evidence of appellant, to the effect that the 1883 deed, though in form a conveyance by warranty deed, was in fact no such a conveyance, and that the consideration mentioned in the deed was not paid to the’grantees. This consideration was $1,250 in cash and the transfer by deed to Mrs. Wright of 160 acres of Marion county land. The letters, all except one, of date March 1, 1883, were signed only by J. W. Wright, husband of Mrs. Wright. This other letter was in part in Mr. Wright’s handwriting and in part in the handwriting of Mrs. Wright, but was signed only by Mrs. Wright. These letters began the negotiations that were finally consummated by the execution by Mrs. Wright and her husband of the deed of 1883. The first letter is dated January 19,1883; the last letter March 29, 1883, and a postal card of date April 11, 1883. The execution of these letters by the parties who signed them was clearly proven. These letters represent negotiations on the part of Mr. Wright, purporting to act for Mrs. Wright, for the sale of Mrs. Wright’s interest in the property in controversy, and some of them, including the one signed by Mrs. Wright, submitted to the grantees the very terms on which the deed shows the sale was consummated. The objection to the admission of this evidence is that the agency of Mr. Wright to act for his wife in this matter was not proven, and that any statement he made in the absence of proof of such agency would not be binding on her. We think the agency of Mr. Wright is established by the portion of the letter written by Mrs. Wright, and by the fact that she joined in the execution of the deed reciting the very consideration named by her husband as the terms upon which she would sell her interest. This assignment of error is overruled.

The other assignments of error have been carefully examined, with the result that we find no merit in them. It is our opinion that the case should he affirmed, and it is so ordered.

Affirmed,


author: HAWKINS, J.

text:
    BROOKS v. STATE.
    No. 14474.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    See, also 115 Tex. Cr. R. 98, 29 S.W.(2d) 373.
    Ratliff & Stewart, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor ; punishment being one year in the penitentiary.

The record is before this court without statement of facts or bills of exception, in which condition nothing is presented for review.

The judgment is affirmed.


author: MORROW, P. J.

text:
    FOWLER v. STATE.
    No. 14072.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    For original opinion, see 39 S.W.(2d) 621.
    McGaugh & Darroch, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This case was submitted to the court with a statement of facts which could not be considered, and an affirmance was ordered on March 25, 1931. 39 S.W.(2d) 621. On April 7th, a motion for rehearing was filed, accompanied by an affidavit which justified the consideration of the statement of facts. On June 17th, the opinion on motion for rehearing in which the evidence and the legal questions were discussed was delivered by the court, overruling the motion for rehearing. After adjournment of the court, the appellant presented an additional motion for rehearing, contending that it should be considered because of the absence of the statement of facts at the time the original opinion was rendered. At the time the second motion for rehearing was filed, this court had lost control of the judgment. The judgment had become final due to the adjournment of the term after the motion had been overruled.

There is now before the court a motion to recall the mandate, and consider the second motion for rehearing, which request is denied.


author: VyAUGHAN, J.

text:
    CADDO HOLDING CORPORATION v. MORROW.
    No. 10753.
    Court of Civil Appeals of Texas. Dallas.
    July 3, 1931.
    Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Smithdeal, Shook, Spence & Bowyer, of Dallas, for defendant in error.
   VyAUGHAN, J.

J. G. Morrow, defendant in error, filed this suit against the Caddo Holding Corporation, a corporation, plaintiff in error, for specific performance of a contract, and from an adverse verdict and judgment against it plaintiff in error sued out a writ of error. Defendant in error alleged in his amended original petition that the plaintiff in error was the owner of certain property in the city of Dallas on August 27, 1927, consisting of six lots in block 958 of the city of Dallas, which, for convenience, will be referred to as the Cedar Springs property, which property had become burdensome to plaintiff in error and it was anxious to dispose of same, and it employed defendant in error to sell or exchange said' property; that the city of Dallas was the owner of certain property, consisting of six blocks in lot 945, of the city of Dallas, which property will be referred to as the Maple-avenue property'; that defendant in error approached the commissioners of the city of Dallas with the view of exchanging the Cedar Springs property for the Maple avenue property ; that there were negotiations, back and forth, between the defendant in error and the commissioners of the city of Dallas in reference to the exchange of said properties; that on November 30, 1927, plaintiff in error and' defendant in error entered into the following-agreement:

“With reference to the offer of the Caddo-Holding Corporation, dated August 27, 1927, to the City of Dallas, Texas, to exchange certain properties, and the agreement of the Caddo Holding Corporation to give J. G. Morrow one-half of the proceeds of the property to be received from the City of Dallas, above-$6,500.00:
“It is mutually agreed by the parties hereto that any changes in the amount or description of the property to be conveyed by the City, or other changes in -the terms of thé agreement mutually agreed to, shall not. affect the interests of either party hereto. Upon receipt of deed from the City of Dallas, the Caddo Holding Corporation will convey to J. G. Morrow, by proper deed (or to his-heirs or) a one-half interest (subject to am encumbrance of $6,500) in said property so/ received from the City of Dallas.
“In the event tlie parties hereto shall at any time not agree as to the handling of this joint account, the points of difference ■■will be referred to arbitration, which his decision shall be binding on both parties hereto.”

That said negotiations resulted in an exchange of four of the lots on Maple avenue for the Cedar Springs property; that on November 14, 1930, the city’ of Dallas conveyed to plaintiff in error, by deed of that date, said four lots in block 945 of the Maple avenue property, and plaintiff in error, by deed of date December 9, 1927, conveyed the Cedar Springs property to the city of Dallas; that after the exchange of said deeds conveying said properties, defendant in error demanded of plaintiff in error that it execute a deed to him conveying an undivided interest in the four lots conveyed to plaiptiff in error by the city of Dallas in accordance with his agreement with plaintiff in error of date November 30, 1927, but that plaintiff in error failed and refused to execute and deliver to defendant in error a deed conveying to him an interest in said four lots in acco'rdance with said contract. Plaintiff in error’s answer presented a general denial and several special pleas not necessary to be specifically noted.

To some of the special issues submitted, the jury-made the following findings of fact: That the exchange of properties involved between plaintiff in error and the city of Dallas was effected through the efforts of defendant in error; that defendant in error was to have as his compensation for his services one-half of the proceeds of the property received from the city of Dallas above $6,500, and that upon receipt by plaintiff in error of the deed from the city of Dallas it would convey to defendant in error by proper deed a one-half interest in said property so received from the city of Dallas, subject to an incum-brance of $6,500.

Other findings were made by the jury, which are not deemed necessary to be here stated, same not being material to any of the propositions upon which this appeal is predicated. Of the judgment entered upon said verdict, it is only necessary to reproduce the following: “And it appearing to the court from the verdict of the jury and the evidence, that the plaintiff, J. G. Morrow, is entitled to specific performance of the contract sued on, and that the defendant, Caddo Holding Corporation, and the plaintiff, J. G. Morrow, hold title jointly to the following described property situated in the City and County of Dallas, State of Texas (here follows a description of the four lots involved, conveyed by the City of Dallas to plaintiff in error, which description will be omitted) and that the title to the above described property is held by the parties in the following manner: the Caddo Holding Corporation, a corporation, has an interest in the whole of the property to the extent of $6,500, and the title over and above said amount is held by thp Caddo Holding Corporation and J. G. Morrow in equal parts, and that J. G. Morrow is entitled to recover of and from the defendant, Caddo Holding Corporation, an > undivided' one-half interest in said property, subject to said interest of $6,500: It is therefore ordered, adjudged and decreed that title to an undivided one-half interest in said property, subject to said interest of $6,500 in Caddo Holding Corporation is hereby divested out of the Cad-do Holding Corporation and vested in the plaintiff, J. G. Morrow.”

The findings of the jury being amply supported by evidence are therefore adopted as findings of fact made by this court.

The following propositions are presented in, support of this appeal: (a) That the finding of the jury that plaintiff in error did agree to convey to defendant in error a one-half undivided interest in said property, subject to an incumbrance of $6,500, was so uncertain that the court could not.properly render judgment conveying title to said property in accordance therewith; (b) that the judgment decreeing title in defendant in error to an undivided one-half interest in the four lots involved, belonging to plaintiff in error, subject to an interest of $6,500 in the plaintiff in error to said properties, is (1) meaningless as a judgment and only creates á cloud upon plaintiff in error’s title, it being impossible in the nature of things to divide the title of property in money and property, (2) not supported by the pleadings which set forth the contract declared upon, and (3) not supported by the verdict of the jury.

The position of counsel for plaintiff in error, viz., that “the contract sued upon is ambiguous and in fact inconsistent in its first and last provisions, unless they be reconciled and construed to mean that the parties were agreeing at that time that the property obtained from the City of Dallas would be sold and the proceeds divided as follows: The first $6,500 to go to the defendant, and all above that amount to be divided equally between the parties, and that as soon as the deed to said property was obtained the defendant would execute an instrument declaring that such was the agreement of the parties with reference to the disposition of the proceeds of the property when it should be sold,” we .think is a correct analysis of said contract. Defendant in error had only a prospective interest in the Maple avenue property, but did not have any character of interest in or title to the Cedar Springs property owned by plaintiff in error. Under the contract between the parties, defendant in error was only to acquire absolutely a. one-half interest in the proceeds arising from the sale of the Maple avenue lots after there liad been deducted from such proceeds by plaintiff in error the sum of $6,500, that amount representing the agreed value of the Cedar Springs property. The provision of the contract that, “upon receipt of deed from the City of Dallas, the Caddo folding Corporation will convey to J. G. Morrow, by proper deed, a one-half interest (subject to an in-cumbrance of $6500) in said property so received from the City of Dallas,” was not intended to require the conveyance of an absolute interest in the title to said property, but only thereby to provide a means for preserving in a substantial form the rights of the parties in the proceeds arising from the sale of the Maple avenue property, and was not intended in any respect to change the commonly accepted meaning of the language of said contract, viz., “ ⅜ * * to give J. G, Morrow one-half of the proceeds of the property to be received from the City of Dallas, above $6,500,” but to be harmonized therewith.

The use of the words “interest” and “incumbrance” in the special issues to the jury, viz., “one-half interest in said property so received from the City of Dallas subject to an incumbrance of $6,500,” and the use of the word “interest" in the judgment of the court, supra, so seriously questioned by plaintiff in error, considered in the light of the correlated effect of all the component parts of the record, can only mean and have reference to (a) the $6,500 to be received by plaintiff in error out of the proceeds arising from the sale of the four lots before there could be a partition of any of the. proceeds between the litigants, and (b) the right of the defendant in error to one-half of such proceeds after said sum of $6,500 has been deducted. therefrom, viz.: in other words, that as between the litigants, said sum of $6,500 to be so received by plaintiff in error was an in-cumbrance upon the entire four lots and the one-half of such proceeds defendant in error was to receive was an interest in said four lots to be accounted for out of said proceeds. The words “interest” and “incum-brance,” while having each a well-defined legal meaning, are not inexorable as to such meaning: in that, the meaning of each word varies according to its position and use in a sentence, so as to avoid discord and produce harmony with and give expression to the real intention of the parties to a contract, gathered from its language, bearing in mind the subject-matter involved and the objective to be accomplished.

We therefore hold that the words “interest” and “incumbrance” were used in the contract declared upon, special issues submitted, the verdict of the jury, and the judgment rendered thereon, as synonymous terms, and in said instruments only conveyed one and the same meaning, viz., that out of the proceeds arising from the sale of said Maple avenue lots, plaintiff in error should, as a primary right, receive the sum of $6,500; that the remainder of said proceeds should then be divided equally between the litigants; that by the following provisions of said contract, viz., “upon receipt of deed from the City of Dallas, the Caddo Holding Corporation will convey to J. G. Morrow by proper deed * * * a one-half interest subject to an encumbrance of $6,500 in said property so received from the City of Dallas,” it was not contemplated that an absolute interest in the title to said lots in fact should be conveyed, but that the conveyance therein provided for should be executed, as the means selected by the parties to said contract, only for the purpose of protecting whatever interest defendant in error had in said four lots, viz., an estate in or claim upon said lots, to secure him in receiving his interest in said real estate as fixed by said contract. That said terms are in meaning convertible for the purpose of carrying out the intention of the parties is clearly expressed in said contract. Therefore, the interpretation suggested by plaintiff in error, supra, should be applied to the contract, verdict, and judgment, to which interpretation defendant in error in the main presents no real objection, but is rather inclined to accept same. Campbell v. Hamilton Mutual Ins. Co., 51 Me. 69, 72; Koezly v. Koezly, 31 Misc. Rep. 397, 65 N. Y. S. 613, 615; Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905, 907; Prescott v. Trueman, 4 Mass. 627, 629, 3 Am. Dec. 249.

In the case of Hough v. City Fire Ins. Co., 29 Conn. 10, 20, 76 Am. Dec. 581, it was held that a person has an absolute interest in property, within the terms of a fire policy, where his interest is such that, if the property is destroyed by fire, he must necessarily sustain the loss. It is an “interest,” not a title, of which the conditions of the policy speak. And in the case of Ormsby v. Ottman, 85 P. 492, 497, 29 C. C. A. 295, it was held: “The word ‘interest’ is the broadest term applicable to claims in or upon real estate. In its ordinary .signification among men of all classes it is broad enough to include any right, title, or estate in, or lien upon, real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truthfully said to be interested, to have an interest, in it.”

We therefore hold that plaintiff in error was entitled to have the specific performance of said contract decreed, and that the judgment appealed from, as herein interpreted, was properly entered for that purpose, and same is therefore affirmed.

Affirmed.


author: McClendon, c. j.

text:
    KENNEDY’S ESTATE et al. v. RICHARDSON et al.
    No. 7564.
    Court of Civil Appeals of Texas. Austin.
    May 13, 1931.
    Rehearing Denied June 3, 1931.
    Collins, Jackson & Snodgrass, of San Angelo, for appellants.
    W. A. Wright, Chas. Gibbs, and J. J. Yow-ell, all of San Angelo, for appellees.
   McClendon, c. j.

Appeal by the proponent of the will of Isabella R. Kennedy, deceased, from a judgment of the district court upon a special issue verdict, sustaining a contest of the will on the ground, of want of testamentary capacity in the testatrix.

Testatrix executed two wills on the same day, referred to, respectively, as the Scotch and American wills. The former was admitted to probate in Scotland. The present proceeding was brought in the county court seeking probate of the American will, by which all of the property of the testatrix in the United States was devised to proponent in trust to convert into money and remit the proceeds to the trustees of the Scotch will. Proponent contends that the Scotch will disposed of all property of testatrix, and that the American will was merely an administrative device, executed for the purpose of facilitating transfer of the property in America to the Scotch trustees, and that under the treaty between the United States and Great Britain, the probate of the Scotch will passed title to all property of testatrix in the United States, and that therefore the contestants who were heirs at law of the testatrix had no interest in the probate of the American will. Other questions "involved in the appeal relate to the action of the trial court in refusing a directed verdict; in its definition of “testamentary capacity”; and in the admission of testimony — the latter in the main involving the disqualification of witnesses under R. S. art, 3716.

The controlling facts disclosed by the record follow: Isabella R. Kennedy and her husband, John Kennedy, natives of Scotland, moved to Texas in the early ’80’s, where a large estate was accumulated, all of which was community property, and where John Kennedy became a naturalized citizen ■of the United States. About the year 1912 they went back to Scotland, where John Kennedy died in March, 1927, and Isabella R. Kennedy died in January, 1928. Whether the latter was a citizen of the United States at the time of her death was a contested fact issue, which we find unnecessary to determine. Our holding assumes appellant’s contention that she was a subject of Great Britain. Mr. and Mrs. Kennedy were childless, and their heirs at law were their respective brothers and sisters, nieces and nephews.- By the will of John Kennedy, a life estate in all his property was vested in his wife, with remainder to his own kindred.

On August 29, 1927, Mrs. Kennedy executed the two wills. By the Scotch will she devised all of her property to trustees in Scotland, the proceeds to be disposed of by a number of small bequests to her several brothers and sisters, a small amount to be reserved for a designated purpose, and the remainder to be divided into four equal parts, to go one .part each to four of the brothers and sisters of her deceased husband, all of whom were subjects of Great Britain. The will in terms disposed of all property of the testatrix wheresoever situated. The American will devised all of her property in the United States to proponent, Central National Bank of San Angelo, in trust to be converted by the trustee into money and remitted to the Scotch trustees. This will provided that it was made “for the purpose only of disposing of the estate and property hereinafter mentioned, and to the intent that the same shall take effect concurrently with and independently of another will of even date herewith relating to my property situate in Great Britain, and not in any way affecting the property hereby disposed of.” The Scotch will made no reference to the American will. Appellees contend that proof of its probate in Scotland was insufficient. In the view we take of the case, this question is unimportant, and we therefore assume that proper probate in Scotland was shown. Proponent (executor and'trustee under the American will) filed the American will for probate in Tom Green county. George and James Richardson, brothers of testatrix, filed a contest, setting up want of testamentary capacity in the testatrix. The will was admitted to probate in the county court, and contestants appealed to the district court. There for the first time proponent interposed by way of plea in abatement the defense to the contest on the ground above stated. This plea was overruled, and the cause tried upon its merits, with the above-named result.

It is appellant’s contention that the two wills were 'executed simultaneously, the Scotch being the primary will and the American being merely an administrative document for the purpose of facilitating administration of the estate under the Scotch will; that all of the testatrix’s property passed under the Scotch will by virtue of the probate in Scotland, regardless of whether that will was filed for probate in Texas under our Texas law, the contention in this regard being that, although to vest title in Texas real estate it is essential under Texas statutes that the will be admitted to probate in Texas, the treaty between the United States and Great Britain abrogated the local law in that regard as to British subjects, and passed the title to the Texas property independently of any local laws requiring its probate in Texas. Appellees contend that" the American will shows on its face that it was executed subsequently to the Scotch will, although on the same day, and expressly repeals all provisions of the Scotch will purporting to pass title to any property in America belonging to the testatrix. We think it immaterial whether the two wills were executed simultaneously. Manifestly they were intended to take effect simultaneously and together dispose of all property of testatrix. The American will in express terms referred to the Scotch will, disposed of all property in America belonging to testatrix, and by express language above quoted limited the Scotch will as applicable only to testatrix’ property situate in Great Britain. The language, “and not in any way affecting the property hereby disposed of,” expressly excludes from the Scotch will the property disposed of in the American will. Conceding that the object in view was to facilitate the administration of the testatrix’ estate and ultimately to deliver the proceeds of the American portion of that estate to the Scotch trustees, it is nevertheless true that the language employed by the testatrix is plain and unambiguous in excepting from the property disposed of in the Scotch will the property, disposed Of in the American will, and it was her manifest intention that, the American will should be probated in Texas, and .should govern in the disposition. of her property in the United States.

But even if there had been but one will, the Scotch will, and it had been properly admitted to probate in Scotland, we are clear in the view that, in order to pass title to real estate in Texas, it was essential that it and its Scotch probate be filed in this state, in which case it was subject to, contest under the provisions of R. S. art. 3352, regardless of its previous probate in Scotland or elsewhere. Appellant concedes that, but for the provisions of the treaty between the United States and Great Britain, this would be true. But it is asserted that the treaty abrogated the Texas statute in the stated regard, and the courts of Texas are bound to recognize the. Scotch probate.

To set forth appellant’s contentions in its own language, it asserts the following as rules applicable to this contest:

“1. In order for the contestants to attack the will they must show a financial interest in the result if the will should be held valid. R. S. 1911, Art. 3236; Pena y Vidaurri v. Bruni (Tex. Civ. App.) 156 S. W. 315; Cyc., vol. 40, p. 1230; Parker v. Parker, 10 Tex. 83.
“2. And where question is made as to the interest of the contestant, the issue must be tried as are pleas in abatement. Brown v. Mitchell, 75 Tex. 13, 12 S. W. 606; Cyc., vol. 31, p. 130; Hazen v. Wright, 85 Me. 314, 27 A. 181.
“3. When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will shall vest immediately in the devisees or legatees. Mahle v. Grierson, 2 Willson, Civ. Cas. Ct. App. § 764; Parker v. Parker, 10 Tex. page 92; Watkins v. Huff, 94 Tex. 631, 64 S. W. 682; Kerr v. Riddle (Tex. Civ. App.) 31 S. W. 328; S. W. Tel. Co. v. Galveston County (Tex. Civ. App.) 59 S. W. 589; article 3314 R. S. 1925.
“4. In order to give reasonable effect to the Treaty with Great Britain validating testamentary dispositions of property by nationals of either country, the validity of the Scotch Will must be determined by the English laws.
“5. In Texas, without regard to Treaty rights, an alien may take both real and personal property by descent, inheritance or devise. Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; S. W. Surety Co. v. Vickstrom (Tex. Civ. App.) 203 S. W. 389.
“6. Under all the decisions, a properly probated foreign will carries title to personal property located in the State without having been filed or probated under the Texas Statutes. Dew v. Dew, 23 Tex. Civ. App. 676, 57 S. W. 926; Holman v. Hopkins, 27 Tex. 38; Hurst v. Mellinger, 73 Tex. 188, 11 S. W. 184; Mills v. Herndon, 60 Tex. 353; Simpkin’s Estates in Texas; Simpson v. Poster, 46 Tex. 624.
“7. Art. 3352, R. S. 1925, the only statute we have, which deals with a will ‘probated according to the laws of any country out of the limits of the United States’, authorizes the ancillary probate of such a will and then provides ‘that the validity of such will may be contested in the same manner as the original might have been.’
“It will be noted that our laws make no provision for the contest of a foreign will except where an attempt is made to have it probated in Texas.
“S. Our courts recognize the rule stated in C. J. vol. 12, p. 466: ‘The general principle that the disposition of personal property, valid at the domicile of the owner, is valid, everywhere is of universal application. It,ha.d, Jts origin in that international, comity which.was one of the first fruits of civilization, and in this age, when business intercourse and the process of accumulating property takes but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever.”

Rules 6 and 8 may be eliminated from the discussion as immaterial, since testatrix had real as well as personal holdings in Texas, and whether the latter passed by the Scorch will independently of its Texas probate could have no controlling effect upon contestant’s interest in the probate of the American will as affecting their claim to Texas realty.

We may concede the correctness of all the other.rules except the fourth. Stated in other language and as appellant seeks to apply it to the instant case, that rule connotes the proposition that American courts must give full faith and credit to the probate in Great Britain of a will which affects the rights of British subjects, that such will does not require probate in America in order to effect the transfer of American realty, and is not subject to contest in an American court.

This proposition we believe wholly untenable. Appellant has not pointed out, nor have we been able to discover, anything in the provisions of the British Treaty or in the provisions of the treaties between our government and that of any other nation which could be given the construction contended for by appellant. We mention the treaties with other nations because the British treaty carries the most-favored nation clause. The provisions of the British Treaty (31 Stat. 1939), cited by appellant, read:

“Article I. Where, on the death of any person holding real property (or property not personal), within the territories of one of the Contracting Parties, such real property would, by the laws of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and to withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the citizens or subjects of the country from which such proceeds may be drawn.
“Article II. The citizens or subjects of each of the Contracting Parties shall have full pow: er to dispose of their personal property within the territories of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees being citizens or subjects of the other Contracting Party, whether resident or non-resident, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the citizens or subjects of the country where the property lies shall be liable to pay in like cases.”

If there is anything in these articles which does more for a British subject than to remove the badge of alienage, we are unable to discover it. Under article 5, the most-favored nation clause of the British Treaty, appellant cites article 6 of the Swedish Treaty, article 7 of the French Treaty, and article 4 of the German Treaty, which we quote:

“Article VI (Swedish Treaty). The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise, in favor of such persons as they think proper; and their heirs, in whatever place they shall reside; shall receive the succession even ab intestato, either in person or by their attorney, without having occasion to take out letters of naturalization.”
“Article VII (French Treaty). In all the States of the Union whose laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possession personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves.”
“Article IV (German Treaty). Where, on the death of any'person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.”

The above comment with reference to articles 1 and 2 of the British Treaty is equally applicable to the quoted articles of the Swedish, French, and German Treaties.

Appellant, whilé citing numerous authorities upon the construction and interpretation of treaties, has cited no case which upholds its view that they abrogate as to citizens of Great Britain the local laws with reference to the devolution of real property, which would aPPly to American citizens or any one else than British subjects, and to them except for the provision of the treaty. We think it unnecessary to discuss adjudicated cases upon a subject which seems so well established by authority.

“ ⅜ * * .It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated.” United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192.

Not only do the treaties in question not attempt to invade the province of the several states in this regard; but it may seriously be questioned whether an attempted exercise of that power would be valid.

“* ⅜ , * A treaty is supreme only when it is made in pursuance of that authority which has been conferred on the treaty-making department, and in relation to those subjects the jurisdiction over which has been exclusively intrusted to Congress. If it should transcend these limits, like an act of Congress which transcends the constitutional authority of that body, it could not supersede a state law which enforces or exercises any power of the state not granted away by the Constitution. To hold any other doctrine than this would, if carried to its ultimate consequences, sanction the supremacy of a treaty which should entirely exempt foreigners from taxation by the respective states, or which should even undertake to cede away a part or the whole of the acknowledged ter-; ritory of one of the states to a foreign nation.” 15 R. C. L. pp. 151, 152.

We will conclude our discussion of this subject by the following excerpts from Tucker on Limitations on the Treaty-Making Power;

“Sec. 128. That the Government of the United States, under its treaty power may change the status of an alien in this country, cannot be denied. The change of that status, it is admitted, may give the right of inheritance which would be unavailing to him but for such change; but this right is conceded to him by reason of the fact that his status as an alien has been changed to that of native, quoad the particular right. All of the cases without exception, decided by the Supreme Court, involving the question of inheritance by aliens, are based upon one principle, and that is the power of the United States, under the treaty power to remove the badge of alienage, which is conceded to be a legitimate exercise of power by the Government of the United States.”
“See. 142. It may be urged that the concession of this power to its full extent in its effect upon alienage would give to the treaty-making power the right to confer upon aliens rights which would subvert our constitutional form of government. A fair consideration of the decisions leads to no such conclusion. It could not be claimed that under this power the alien could be given the right to vote, or to hold office, or to be the recipient of any of those great political rights which pertain to American citizenship. These rights rest in the law-making power alone. The right to open a barroom in America, despite the laws of the States, could not be granted in a treaty, though the reciprocal right be granted the American to do the same in the other contracting country. The decisions seem to extend only to the removal of certain badges of alienage, putting the alien on the same footing thereby with the American citizen as to certain privileges; and while Congress may by law prevent the coming of aliens to America, the treaty-making power may define his status if the bars are let down by Congress and he is allowed to come.
“The cases under consideration show most clearly that this has been the ground of their decisions; not that the treaty annuls the laws of the States supposed to be in conflict with it, but that under the laws of the States there was no power to defeat the alien’s claim, because of his baptism into a limited sonship by the only power in the government that could bestow such a privilege.
“Sec. 143. It could hardly be held by the most extreme advocate of the unlimited treaty-making power that if the law of Virginia provided that the inheritance of real estate from a party dying intestate should go to his mother, and the law of Great Britain provided that in a like ease the inheritance should go to the father, that a treaty between Great Britain and the United States giving the right to the British citizen to inherit real estate in Virginia according to the laws of succession of Great Britain and the reciprocal right of the Virginian to inherit real estate in England according to the laws of the residence of the Virginia citizen, would be valid. If such a treaty were valid it would be a clear example of the power of the treaty to annul a State law, but as we have seen, the eases under discussion are reconciled without resort to the conflict between the law and the treaty; and the heirs in each ease took the inheritance under the law of the State, and not against it.”

The error complained of in the trial court’s refusal to direct a verdict is predicated solely upon the fact that Mrs. Kennedy, on July 19, 1923, executed a will in which sh'e left all of her property to her husband, his heirs and assigns. Whatever probative force such fact might have as a circumstance in determining her mental capacity at the time she made the will in question, it could clearly have no conclusive legal effect in that regard. There can be no question but that the evidence was amply sufficient to support a finding of want of testamentary capacity in August, 1927, when the will offered for probate was made. All of the testimony shows that, in 1923 or 1924, Mrs. Kennedy had a serious spell of illness, and, while the witnesses do not agree as to the exact character of this illness, and their evidence presents a sharp conflict as to its subsequent effect upon her mental processes, there was ample evidence to go to the jury and support its finding that Mrs. Kennedy did not have testamentary capacity when she made the will. The 1923 will is not offered for probate, and we are not concerned here in its validity. The propriety of its inclusion in the record rests solely in its evidentiary significance.

The definition of “testamentary capacity” which is complained of is in the exact language of the definition which it was held error to refuse in Rutherford v. Robbins (Tex. Com. App.) 298 S. W. 549. The exact point urged against the definition is that it assumes that there were objects of testatrix’ bounty who had claims upon her. We do not think the definition, when reasonably and fairly construed, is susceptible of this construction.

A number of assignments and propositions are predicated.upon the admission of testimony of George Richardson, a brother of testatrix and one of the contestants, Bertha, Jane, and Walter Richardson, sisters and brother, respectively, -of testatrix, but not appearing as contestants of record, and Mrs. George Richardson. The objection to the testimony thus offered is based upon article 3716, disqualifying parties in suits against administrators, etc. We do not think it necessary to set out in detail the substance of the testimony to which these objections were made. It can hardly be seriously questioned that the testimony concerned transactions with the deceased within the holding in Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185. The main contention of appel-lees in asserting the admissibility of the testimony is that this proceeding is not of the character -of those named in the statute. The exact point made is in effect that, since the proceeding was instituted by the bank for the purpose of probating the will, it could not be classified as a suit by or against an executor as such, because the bank’s status as executor could not arise until the will had been admitted to probate. We concede the force of this argument and that the proceeding is not one in which a judgment could be rendered for or against the executor as such. However, it is perfectly clear we think from the holdings of the Supreme Court in Leahy v. Timon, 110 Tex. 73, 215 S. W. 951, and Holland v. Nimitz, above, that a probate proceeding is an action involving the title to the testator’s estate, in which the proponent on the one hand and the heirs on the other occupy the position of the respective parties to the proceeding-, and that, within the meaning of the statute in question, it is an action in which judgment may be rendered for or against the heirs of the testatrix as such. That being the character of the proceeding, it necessarily follows that neither party could testify over the objection of the other to conversations or transactions with the deceased. George Richardson was both a nominal and real party,' in that he was one of the contestants. The other three named witnesses were heirs at law of Mrs. Kennedy, and were therefore parties in fact to the proceeding. We think there can be no substantial question but.that each of these four parties was disqualified to give the testimony complained of, and we sustain the assignments and propositions in this regard.

The testimony of Mrs. George Richardson was admissible under the holding in Mitchell v. Deane (Tex. Com. App.) 10 S.W. (2d) 717.

The only other questions presented in the appeal are those involving'objections to testimony of other witnesses not coming within the above disqualification, to the effect that in their opinion Mrs. Kennedy was not of “disposing mind” at the time she executed the will. The objection is directed to the use of the word “disposing” as calling for a conclusion of the witness. Under the holding in Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, this objection was well taken, and we sustain the proposition and assignments urging it.

For the' errors pointed out, the trial court’s judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.

On Motion to Find Conclusions of Fact.

In compliance with paragraphs 2 and 3 of appellees’ motion to find conclusions of fact, we sustain the objection to the testimony of the following witnesses contained in the following points on the following respective pages of appellants’ brief:

George Richardson — point 7, page 51; point 10, page 58.

Bertha Richardson — point 8, page 55; point'9,-page 57; point 18, page 70; point 20, page 72; point 32, page 81.

Walter 'Richardson — point 11, page 60; point 12, page 60; point 21, page 72; point 22, page 72; point 23, page 73; point 31, page 80.

Jane Richardson — point 14, page 67; point 17, page 69; point 24, page 73; point 30, page 79.

Kate Campbell — point 13, page 65; point 16, page 69.

Wm. R. J. Graham — point 15, page 68; point 29, page 78.

Jane Flemming — point 27, page 76.

Jennie Flemming — point 28, page 77.

In all other respects the motion is overruled.

Granted in part, and in part overruled.


author: RUSSELL, Special C. J. EUNDERBURK, J.

text:
    REPUBLIC PRODUCTION CO. v. COLLINS.
    No. 773.
    Court of Civil Appeals of Texas. Eastland.
    May 15, 1931.
    Rehearing Denied July 3, 1931.

      W. W. Moore, Jr., of Houston, and G. O. Bateman, of Dallas, for appellant.
    Frank S. Roberts, of Breckenridge, for ap-pellee.
   RUSSELL, Special C. J.

This is the second appeal of this case. The opinion on the first appeal is to be found in 7 S.W.(2d) 187. There are three counts in the petition. The second and third were not. submitted to the jury, and no request for such submission was made. They are therefore waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084. Omitting formal parts and allegations as to damages, etc., the count which was submitted is as follows: “Plaintiff alleges that he owned the surface right and freehold estate on a certain tract of land in Stephens County, Temas, commonly known as the Collins Homestead, which he purchased, in 1922; that thereafter in said year plaintiff and defendant made and entered into an agreement for the completion of a large tank situated on said premises, which had been previously begun and left unfinished by the owner of said land, whereby plaintiff was to furnish certain amount of labor and the defendant the remainder to complete said tank, and that, in consideration therefor, the plaintiff would and should have the right to use water free for his own use in his occupancy of said premises,'and for irrigation purposes of land adjacent to said tank, and that the defendant should and would have the right to use water from said tank for its use in drilling and operating oil and gas ivells on its leases contiguous thereto, the same being known as the Knox lease, hut for no other purpose; that said tank was completed by plaintiff and defendant and designated by them as a ‘partnership tank’, with the understanding and express agreement that plaintiff and defendant would have an equal interest or right in the use of the waters impounded in said tank for the respective and exclusive use, to wit: the plaintiff the right to use water for domestic and irrigation purposes, and the defendant the right to use water for drilling and operating oil wells on the leases contiguous’thereto, but for no other purpose; that by reason of said agreement and the construction of said tanlc as aforesaid, plaintiff and defendant became and are jointly interested, each owning an one-half interest in, or right to use that amount of water for the limited purposes designated in said agreement, but the surplus of said water to remain in said tanlc for the benefit of the freehold estate.” (Italics ours.)

The undisputed testimony showed that the Republic Production Company had sold water from said tank to oil companies operating on contiguous territory to the “Knox lease,” and received therefor the sum of $2,564.50, and had not accounted to the plaintiff for any part thereof. Upon the jury’s answer to special issues, a judgment was entered in favor of the plaintiff for one-half of the above amount, less certain credits and expenses incurred in the sale of the water, etc. It is from this judgment the appeal is taken;

The opinion by this court on the former appeal is of little or no value in disposing of the points presented in this record. The instant case is fundamentally different in character from that one. In the light of the principles stated in this court’s opinion on the former appeal, the plaintiff, Collins, necessarily perceived that on the first trial he misapprehended the legal effect of his facts, or the true causé of action reflected by them, and on the last trial he pleaded away from the character of case deemed by this court to have been shown by the former record. This the plaintiff had a right to do, and was evidently warranted in so doing by the facts of the case. The record on the former appeal presented a case wherein the litigants were alleged to be tenants in common in the equal ownership of the water in a surface tank, with the right to use the same under principles consistent therewith. The record on this appeal presents a case wherein the defendant oil company’s right to the use of the water from the tank was, by the agreement alleged, restricted “to use water therefrom for the liimted purpose of drilling and operating its oil wells on the Knox lease,” as found by the jury, in answer to special issue No. 1, and also confirmed by its answer to special issue No. 2. Such being the nature of the instant case, the plaintiff merely seeks to recover for water sold by the defendant to other operators on leases in no way connected with the Knox lease. This indicates the very clear theory upon which the plaintiff, Collins, sought to recover the value of the water alleged to have been converted by the defendant, the production company.

In brief, the'suit itself involves merely the right to recover the value of surplus surface water collected in a surface tank on the Collins homestead or freehold ; the tank having been constructed by the joint efforts of plaintiff and defendant, and the rights of the latter to water therefrom fixed by the specific terms of a special contract pleaded and proved, as aforesaid. Such contracts are common, and no reason can be perceived why the parties were not able to make the same as here alleged. As said in 40 Cyc. p. 751 (d), the grantor of a water right or power “may specifically restrict the uses for which the water may be employed, and when this is done it is an effective limitation upon the rights of the grantee. Such a limitation is established where the grant is expressed to be for the purpose of a particular kind of mill or factory, ‘but for no other purpose whatever.’ ⅞ # * There is no restriction as to the place where the water or power granted shall be employed or enjoyed, unless specified in the conveyance or contract. * * * ”

There is no contention that Collins did not own the freehold upon which the tank was constructed, and therefore no question arises as to his ownership of this surface water as an original proposition. In that respect his rights conclusively appear as a matter of law. As between Collins, the owner of the freehold, and the oil company, the rule as to the ownership of this particular water, unaffected by the said special agreement, is stated in 27 R. C. L. p. 1138, § 69, as follows: “It is generally held that the owner of the soil has the absolute right to the surface water thereon, and he may, in the improvement of his lands, or for his own use, retain all such water. * ⅜ * ”

The same rule is stated in 40 Cyc. p. 640, in this language: “A landowner has the right to collect and appropriate to his own use all surface water upon his property without liability to other owners upon whose property it would flow if not so appropriated.”

Further, an examination of the testimony adduced by the defendant, and especially that of its superintendent, Murphy, discloses that the plaintiff’s ownership of the water, save as affected by the agreement involved in this suit, was not and is not denied.

What has been here said preliminary to disposing of the appellant’s specific assignments and propositions of error is all by the way of indicating our view that there is in this record no fundamental error calling for a reversal of the judgment of the trial court, nor does it appear that the' plaintiff waived any issue involving the establishment of his ownership of the surface or said surplus water, if such issue could be involved and essential to his recovery herein. Further, the appellant has not suggested that the record presents any fundamental error in the judgment, and, discovering none ourselves, we recognize the theory upon which the case was tried and proceed to dispose of each of the propositions upon which this appeal is predicated.

The first proposition, to the effect that, since this court formerly held the parties to be tenants in common, and entitled to one-balf of the water in the tank for any purpose, the defendant was entitled to an instructed verdict in the absence of pleadings and proof that it used more than one-half the water from the tank. This proposition must be overruled, because, as previously noted, the pleadings and testimony in this case present a case fundamentally different to that appearing in the record on the former appeal. The principles governing the rights of tenants in common controlled in the disposition of that appeal, but different principles are to be applied under the circumstances of this ease. This case is one in which the defendant’s right to use the water from the tank was limited strictly to the Knox lease owned by it. Under the agreement alleged and established it was prohibited from selling water to other operators, and it is this water which the plaintiff claims was converted by the defendant, and for the value of which he sues. This distinguishes the instant case from the former one, as will be more fully shown .in the disposition of proposition No. 10.

The appellant’s second proposition, complaining that it was prejudiced by argument of plaintiff’s counsel, to the effect that it was “stealing and hogging plaintiff’s water,” is overruled. The bill of exceptions discloses that the words were “selling and hogging,” instead of “stealing and hogging.” The remark was merely in line with the allegations of the petition which, if true, would indicate a very unjustifiable conversion of the plaintiff’s water. Also the court sustained the defendant’s objection, and instructed the jury not to consider the remark. Apparently no error was committed, and, if so, it was rendered harmless.

The third proposition is: “Special Issues Nos. 1 and 2 were multifarious, containing more than one material question, and each called for a finding of the jury upon two separate and distinct issues.”

It is not believed that the issues contained the vice alleged. At least it is not so apparent as in the proposition under consideration. Certain matters are stated in each proposition about which there was no controversy. The only controverted issue in the first one was whether or not the defendant was restricted to the use of water from the tank on its “Knox lease,” and in the second issue practically the same question was propounded, but in a little broader sense, in that, by that issue, the jury found that the plaintiff and the defendant were each limited to the use of the water “exclusively for their own use”; such use being fully and specifically defined in the pleadings and shown by the testimony.

In City of Abilene v. Moore, 12 S.W.(2d) 604 (4), this court, in disposing of a like proposition under analogous facts, where the testimony on one phase of the issue was conclusive, held that the issue complained of was not duplicitous. - This point will be further considered in disposing of proposition No. 10. Opinions in Sweetwater Prog. Mut. Life, etc., Ass’n v. Allison (Tex. Civ. App.) 22 S.W. (2d) 1107 (4), and W. F. R. & Ft. W. Ry. Co. v. Emberlin (Tex. Civ. App.) 274 S. W. 991, hold likewise.

It is asserted that the court erred in submitting special issue No. S, as to whether the water in the tank was capable of partition in kind, since there were no pleadings or evidence to support the same, and since it was contrary to the judgment of this court on the former appeal. This issue was wholly immaterial and without any bearing upon the results of the case. Plaintiff’s right to recover was not dependent upon whether the water in the tank was capable of partition. 1-Iis suit was for conversion upon an entirely different theory. The fourth proposition is overruled.

The fifth proposition, to the effect that the plaintiff alleged himself entitled to share in the proceeds derived from the sale of water by his eotenant, without having alleged facts entitling him to so share, defendant’s special exceptions to such pleadings, for that reason, should have been sustained. This proposition is without merit and apparently based upon a misconception of 'the character of the case prosecuted by the plaintiff who is suing for water converted, or water used by the appellant for purposes other than the development of the “Knox lease.” This case was tried on amended pleadings, and the plaintiff could not be required to plead as in the first trial.

The sixth proposition complains that the defendant’s special exception to plaintiff’s pleadings relative to the amount of water the defendant permitted one Geske to use from the tank should have been sustained unless the plaintiff alleged that the defendant used more than one-half of the water. This contention is evidently due to a failure to recognize the fundamental difference between the case now on appeal and the one on the former appeal, but regardless of that matter it should be overruled, for the plaintiff did not seek to recover and did not recover any judgment based upon the amount of water used by Geske. There being no recovery based on this item, the error, if any, was harmless.

The seventh proposition is to the effect that, there being no evidence to support the finding of the jury that the plaintiff was prevented from irrigating because of the use of the water by the defendant, judgment should not have been rendered on said finding. The jury, in answer to the issue, found that the defendant’s use of the water prevented the plaintiff from irrigating his land in 1929, but no issues were submitted to the jury for the purpose of ascertaining the damages, if any, by reason of that fact. The answer of the jury to the issue in no way appropriated as a support for the judgment. If propounding this immaterial issue in any way prejudiced the rights of the defendant, it is not pointed out except in the proposition under consideration, and in accordance with that proposition the record discloses that no judgment was in fact “rendered on said finding.”

By the eighth proposition complaint is made that the plaintiff’s counsel, in his closing argument, made statements prejudicial to the rights of the defendant, in that the counsel stated that the defendant “did not have the right under its lease, as a matter of law, to sell water for use off the lease”; the gist of the complaint being that it constituted an improper attempt to instruct the jury as to the law. It does not clearly appear that any error was committed in the argument complained of, but, if we be mistaken in this, the facts and circumstances appearing in the record do not show that the argument was calculated to prejudice the rights of the complaining parties. Emberlin v. W. F. R. & Ft. W. Ry. Co. (Tex. Com. App.) 284 S.W. 539; Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S. W. 808.

Further, the court sustained the defendant’s objection and instructed the jury not to consider the remarks of the plaintiff’s counsel. The proposition is overruled.

The ninth proposition asserts error in that there was no evidence and no finding by the jury that the defendant used more than one-half the water in the tank. This proposition is based upon a false hypothesis to the effect that the instant suit is the same as that on former appeal. That not being the case, and the plaintiff not alleging that the defendant owned one-half of the water, and for reasons heretofore stated, the proposition is overruled.

By proposition 10 appellant contends that the answers of the jury to issues Nos. 1 and 2, respectively, are in conflict, and therefore destructive of each other, and furnish no basis for the judgment. By these issues the jury found that the plaintiff, Collins, and the defendant production company each had equal rights to the use of the water exclusively for the particular designated uses (issue 2 and answer), and that the production company’s rights to such water were for úse in .“drilling and operating its oil wells on the Knox lease” (issue 1 and answer). In other words, these litigants had equal rights to the use of the water, limited to particular purposes. Had the necessities of Collins and the production company required that each have one-half of the water, each would have been entitled to that amount by virtue of their agreement. Had Collins’ particular purpose required one-third of the water and the production company two-thirds for drilling and operating the “Knox lease,” each, under the agreement, could have used such an amount, and vice versa. Upon the same principle, and in varying amounts, they each could have used the water under the agreement alleged and established, and that without conflict in rights. Their uses were limited and the term “exclusive use” found in issue 2 was defined and explained by the pleadings; the allegation in that respect be‘ing: “* ⅜ ⅜ The plaintiff the right to use water for domestic and irrigation purposes, and the defendant the right to use water for drilling and operating oil wells on the leases contiguous thereto, (Knox lease) but for no other purpose.”

The findings of the jury in respect to issues 1 and 2, when construed in the light of the pleadings, both general and special, in this record, do not carry any suggestion of conflicts. These conclusions are predicated upon the law that “all the issues must be considered together as a whole. If, when construed as a whole, they admit of inore than one reasonable construction, the trial court has power to apply that reasonable construction which he deems proper.” Bank v. Rush (Tex. Com. App.) 246 S. W. 349, 353; Elder, Dempster & Co. v. Weld-Neville Co. (Tex. Com. App.) 231 S. W. 102.

And further, as stated in Graham v. Hines (Tex. Civ. App.) 240 S. W. 1015: “It is the court’s duty to reconcile apparent conflicts in the answers on special issues if it can be reasonably done in the light of the pleadings and the evidence.”

For authorities holding likewise, see T. & N. O. Ry. Co. v. Wagner (Tex. Civ. App.) 224 S. W. 377; St. L., S. F. & T. Ry. Co. v. Wilson (Tex. Civ. App.) 262 S. W. 1074, 1075; Texas Cent. Ry. Co. v. Bender, 32 Tex. Civ. App. 568, 75 S. W. 561.

The proper application of these rules of law to the verdict before us, read in' the light of the pleadings and the testimony, requires that this proposition be overruled. As heretofore indicated, this point, like others herein advanced, is predicated upon the proposition that the plaintiff pleaded a case as in the first trial, in which the litigants were alleged to own a one-half interest in the water. Such not being the case, such propositions are without merit.

The eleventh proposition pertains to an alleged error in the court’s charge on the burden of proof. No objection was made to the charge before its' submission to the jury by the court. The error, if any, was waived. 3 Tex. Jur. § 137, p. 202.

Clearly, under the pleadings and the verdict, such unused portion of the water as remained in tlie tank and not necessary under the agreement for the purposes of Republic Production Company in “drilling and operating the oil wells on the Knox lease” belonged to the owner of the freehold, the plaintiff herein. The pleadings do not call for' construction; there is no complaint that the court overruled any general demurrer to them. There are perhaps some immaterial matters alleged in the plaintiff’s pleadings, but that can be said of most pleadings. In this case they are of no importance. The judgment has not been influenced by them, nor have the rights of the appellants been prejudiced thereby. To appropriate such in this case as a ground for reversing the judgment would be to employ technical rules of construction to effect the reversal of the judgment obtained under pleadings and procedure deemed to be in reasonable and substantial compliance with the law.

There are no cross-assignments attacking the judgment. Therefore, for the reasons assigned, each of appellant’s propositions are overruled, and the judgment is afiirmed. It is so ordered.

EUNDERBURK, J.

(dissenting).

Plaintiff’s petition contained three counts, each expressly alternative to the others. The verdict of the jury clearly identifies the first count as being that upon which recovery was awarded to plaintiff. The other counts therefore become unimportant except to aid in the interpretation of the first count. The third count may be disregarded as without any bearing, even on the question of construction. The second count, I think, is important in determining the nature of the cause or causes of action attempted to be alleged in the first count, and, if more than one, in identifying that upon which the judgment must depend for support. The theory upon which recovery was sought in the second count was that plaintiff, the landowner, constructed a tank on his own land, and by agreement, in consideration of the aid given him by defendant in doing so, the latter was given the right to a particular limited use of the water for a specified purpose. Under the allegations of this count clearly the water belonged to plaintiff, and, in order to show a cause of action for conversion, he only had to allege that the water had been diverted to a use different from that which, under the agreement, the defendant had the right to use it. Such cause of action was sufficiently pleaded, and the right of recovery thereon was wholly unaffected by the former decision of this court.

However, the judgment under attack is based upon allegations of one or more causes of action expressly alternative to, and therefore different from, that alleged in the second count. Allegations in the second count 'can therefore afford no support whatever to the judgment. ' '

What was that other and different theory of plaintiff’s right to recover judgment attempted to be stated in the first count, and upon which, if any at all, the judgment must •be supported? The allegations are so inconsistent, some with others, as to make the question difficult to answer. One thing certain' is that a contract is alleged which is an entirely different agreement from that alleged in the second count. The alleged provisions, of the agreement, omitting for the present, the allegations in the nature of conclusions, as to its legal effect, are, in the language of, the petition, as follows: “⅜ ⅜ ⅜ Plain-, tiff and defendant made and entered into an, agreement for the completion of a large tank situated on said premises, (i. e. the Collins, homestead) which had been previously begun, and left unfinished by the owners of said, land, whereby plaintiff was to furnish certain, amount of labor and the defendant the re-, mainder to complete said tank, in considera-, tion therefor, the plaintiff would and should; have the right to use water free for his oym. use in his occupancy of said premisos, and! for irrigation purposes of land adjacent to; said tank, and that the defendant should; and would have the right to use water from, said tank for its use in drilling and operating> oil and gas wells on its leases contiguous, thereto, the same being known as the Knox lease, but for no other purpose; that said, tank was completed by plaintiff and defend-, ant, and designated by them as a partnership tank, with the understanding and express, agreement that plaintiff and defendant would have an equal interest or right in the use of, the waters impounded in said tank for the respective and exclusive use, to-wit: the, plaintiff the right to use water for domestic and irrigation purposes, and the defendant the right to use water for drilling and operating oil wells on the leases contiguous thereto, but for no other purpose.”

By the contract as thus alleged, the parties fixed with reasonable certainty their respec-' tive rights to use the water from the tank, and provided as between each other the lim-' itations upon such rights of user. . Under this contract the only limitation on the rights of the plaintiff to use all of the water in the' tank for domestic arid irrigation purposes1 was the equal right of defendant to-use water in drilling and operating'' oil and gas wells on the Knox lease. Conversely, .the only limitation on the right’ of the defendant, to use all of the water! if necessary, in drilling and operating oil and gas wells .on the' Knox lease, was the equal right of plaintiff1 to use water for domestic and irrigation purposes aforesaid. So long as neither party used more than ohe-half of the water for authorized purposes, the limitation on the re-! spective rights of user as a practical proposition was unimportant. If,' however, plaintiff, for his authorized purposes, needed more than one-half the water, and defendant, for its authorized purposes at the same time, needed more than one-half the water, the equality of their respective rights would result in limiting the right of each to one-half of the water.

Upon this interpretation of the alleged agreement I am, I think, in accord with the majority opinion. But, if. this be the correct construction of the contract alleged, then it is wholly unimportant that, in specifying the uses which plaintiff could make of the water, it was not stipulated that it was to be “for no other purpose” ; while, in defining the uses which defendant was to make of the water, it was stipulated that it was to be “for no other purpose.” The equality of their rights imposed that same restriction on each party, whether expressed or not. It was wholly immaterial that it was expressed as to the defendant and not expressed as to the plaintiff. ' Under the express terms of the -contract plaintiff could no more have, used the water for purposes other than domestic and irrigation purposes, so as thereby to interfere with the defendant’s equal right of user, than the defendant could have used the water for purposes other than drilling and operating oil án.d gas wells on the Knox lease, so as to interfere with plaintiff’s equal right of user. By pleading and proving the facts to show, that any use of the water by either party for any purpose other than those specified would result in injury to the right of the complainant to make his or its authorized usés of the water would have enabled either party to prohibit the other from so using any of the water.

But, to my mind, it is clear, and in this aigain I am in accord with the majority opinion, as I understand it, that plaintiff, by the judgment in question has not been awarded a recovery to compensate him for any injury suffered as a consequence of a deprivation of, or interference with his right to use water for domestic or irrigation purposes. It is obviously true, as said in the majority opinion,'that: “The jury, in answer to the issue, found that the defendant’s use of the water prevented the plaintiff from irrigating his land in 1929, but no issues were submitted to the jury for the purpose of aseertakñng the damages, if any, by reason of that foot.” (Italics mine.) The majority correctly, I think, have regarded the finding immaterial and that the judgment was in no way dependent upon it for support. In other words, if plaintiff had a cause of action, or attempted to allege one, for any interference with his contract right to use the water, which manifestly he may have had, and which some of his a rerments indicate he did attempt to allege, it is certain that such was not the cause of action upon which he recovered judgment.

This brings us to a consideration of the important question: Upon what theory of plaintiff’s rights and violation thereof by. defendant does the judgment rest? Briefly stated, it is that plaintiff was sole owner of the water and the utmost extent of defendant’s rights in reference to it was to use water for drilling and operating oil and gas wells on the Knox lease; that defendant, by the sale of the water, thereby converted it. Incidentally, it results that plaintiff, having a right of election, by claiming the proceeds of the sale, thereby condoned and ratified the conversion. This, as I see it, is identically the theory, in its essential nature, upon which recovery was sought in the second count of the pleading, which, as already said, was abandoned.

Since unquestionably the judgment must find its support, if at all, upon the’allegations in the first count, let us examine same carefully to find the averments of fact, if any, to show that, as against the defendant, plaintiff was the sole owner of the water.

The inquiry should be made in the light of certain legal principles. One of the requirements of a pleading is consistency. This requirement is no restriction on the right to plead inconsistent grounds of recovery or of defense. Inconsistent facts must be pleaded in the alternative or in separate counts. “The rule requiring consistency, however, does apply to the different allegations in the same count. These must be harmonious and stand together.” Townes’ Texas Pleading, p. 425. See Hillebrant et al. v. Booth, 7 Tex. 501; Steinback v. City of Galveston (Tex. Civ. App.) 41 S. W. 822; Barry et al. v. Screwmen’s Benev. Ass’n, 67 Tex. 250, 3 S. W. 261; Kynerd v. Security Nat. Bank et al. (Tex. Civ. App.) 207 S. W. 133; Rowe v. Horton et al., 65 Tex. 89.

If, by application of rules of construction, apparently contradictory allegations can be reconciled, it should be done. In so ascertaining the true meaning of the allegations, however, the further rule must not be lost sight of that specific allegátions in a pleading, when ambiguous, are to be construed most strongly against the pleader. Wall v. Royal Ind. Co. (Tex. Civ. App.) 299 S. W. 319; W. U. Tel. Co. v. Henry, 87 Tex. 165, 27 S. W. 63; Webb County v. Board of Trustees, 95 Tex. 131, 65 S. W. 878; Snipes et al. v. Bomar Cotton Oil Co., 106 Tex. 181, 161 S. W. 1; Meador v. Rudolph (Tex. Civ. App.) 218 S. W. 520; Celli v. Sanderson (Tex. Civ. App.) 207 S. W. 179; Gillis et al. v. Rosenheimer et al., 64 Tex. 243; Ft. Worth v. First Baptist Church (Tex. Civ. App.) 268 S. W. 1016; Baker v. Galbreath (Tex. Civ. App.) 211 S. W. 626; S. A. Fire Fighters v. Bell (Tex. Civ. App.) 223 S. W. 506; Broussard v. May-umi (Tex. Civ. App.) 144 S. W. 320, 321; Hill v. Allison, 51 Tex. 390; Mueller v. Simon (Tex. Civ. App.) 183 S. W. 63.

By so construing specific allegations, every reasonable intendment arising upon tlie pleading must be in favor of its sufficiency as against a general demurrer. Rule 17, 142 S. W. xviii. And so also, I think, as against a contention that the pleading is insufficient to support the judgment.

The contract alleged, and which the jury found to have been made, while it would have been very material had the judgment awarded a recovery for some wrong done in violation of plaintiff’s rights under the contract, is, in considering the basis of the judgment actually rendered, only important as evidence to show that, if defendant had any right to sell the water, such right was not one given to it by the terms of the contract itself. The contract did not deal with ownership of the water as any part of its subject-matter. So far as the rights of the parties were created by, and dependent upon, the contract, it was wholly immaterial whether the water was owned solely by the plaintiff or by the defendant, or by them jointly as tenants in common. Whoever owned the water, such rights of ownership were subject to the equal rights of user of both parties as provided in the contract. If the defendant required all of the water and plaintiff none, then by the contract defendant had the right to use all of it for the authorized purposes, even though the ownership of the water may have been exclusively in either party or in both of them jointly. The ownership of the water was simply burdened with the contract, which, as said before, did not, at least expressly, deal with the subject of ownership. This is true, unless the plaintiff is to be understood as having attempted to allege that it was one of the provisions of the contract that the surplus water (i.‘ e., the part not used by either plaintiff or defendant for the authorized purposes) was “to remain in said tank for the benefit of the freehold estate.” There was, in substance, such an allegation, but I think clearly it should, be construed, not as an allegation that such was one of the stipulations of the contract, but merely the statement of a conclusion of the pleader as to the legal effect of the contract. This construction is required for several reasons. In the first place, it is not directly alleged that the contract contained such provision. In other words, on its face it appears to be the statement of the legal effect of the provisions alleged. Again, it is significant that the jury were not asked to find the existence of a contract containing such a provision, an indispensable requisite if any judgment was to be based upon such contract. An examination of the statement of facts discloses that there was not a scintilla of evidence by either party.that the agreement included any such stipulation. There exists no one of at least two essentials to support the judgment on such a theory; namely, no evidence, no verdict. So, if the validity of the judgment is dependent upon the fact that plaintiff was owner of the surplus water only because the contract in effect so provided, then the judgment is fundamentally erroneous because there is no verdict to support it.

But I take it that it is not even contended that plaintiff’s exclusive ownership of the water was by virtue of the contract, but on the contrary that it exists independently of the contract. The majority opinion recognizes this, and holds, as I understand it, that such exclusive ownership in plaintiff arises solely as an inference, or implication, from the fact that the water was impounded on plaintiff’s land.

I cannot concur in the view that such exclusive ownership in plaintiff is either a necessary or reasonable inference from the fact alone that the water was impounded on plaintiff’s land. Surface or flood water, thus artificially impounded, is I think to be considered as personal property. Plaintiff so. treats it in suing for the proceeds of the sale thereof rather than for damages for injury to the freehold. We so regarded it in the former opinion in holding that, it being capable of measurement in kind, and plaintiff being a tenant in common with defendant, could not recover in the absence of a showing that defendant had sold more than its share of the water.

As already said, Í do agree that, if plain-' tiff, by his .individual effort had impounded the water, thus reducing it to his possession,' he would be the owner. If defendant was merely his “hired hand,” assisting him to do so, the water would nevertheless have belonged to plaintiff. But plaintiff in his pleadings, which alone must constitute the support of his judgment, alleged, not that he, but that he and the defendant, by their joint and combined effort, impounded the water; that1 a part of the agreement under which this joint enterprise was carried out was that the tank was to be called a “partnership tank.” Had the defendant, with the knowledge and consent of plaintiff, but without any other agreement, alone constructed the dam and sold water, plaintiff would have had no cause of action for the proceeds of sale, at least without allegations and proof of facts to rebut the presumption of an' implied license., Suppose defendant, with simple- consent of plaintiff, had installed a fish trap on plaintiff’s land and caught and sold fish. Could plaintiff, without revoking the license, recover the proceeds of such sale or any part thereof, without showing some other title or right than the fact that the trap was on his land? I do not think so. The cases, it seems to me, are governed by the same principle. Plaintiff pleaded sufficient facts to rebut any presumption of Ms exclusive ownersMp of the water. There are allegations in the pleading which necessarily imply, as to the surplus water, which alone is involved,, that the defendant had a “share” therein. Por example: “Plaintiff has made repeated demand upon defendant for an accounting to him of his interest in the moñey collected, by defendant, hut defendant has refused and still refuses to pay plaintiff, to plaintiff’s damage in the sum of one-half of the total proceeds. * * * That defendant used more than his share of said water.” That defendant “took from said tank more than his just share of said water. * ⅜ * That plaintiff and defendant were tenants in common in their respective rights to the use of said water; that said water in said tank, less the amount necessary for the respective uses of plaintiff and defendant (note: thus identifying water which was surplus water, and therefore not necessary to the preservation of the respective rights of user provided in the contract) was not capable of partition or division in kind ⅜ * * and plaintiff is entitled to his share of the proceeds of the sale of said water (i. e. surplus water) received by his co-tenant or joint owwr in the i’ight to use said water for said limited purposes, which plaintiff alleges to be not less than one-half of the sum of $3,-000.00.” Plaintiff prayed under this count “for an accounting for his part or interest in the amount collected hy defendant from the sale of water from said ta/nlc." (Italics ours.)

To me the conclusion is irresistible that ■plaintiff assumed that, 'by simply alleging that the water was not capable of partition or division in kind, he thereby cliánged a law question into a fact question, and avoided the qffect of the former decision of this court. Allegations that plaintiff and defendant were tenants in common in the use of the surplus water cannot be controlled and their effect avoided by tacking on the meaningless clause, “in the right to use said water for said limited purposes.” By the alleged provisions of the contract plaintiff was not and could not be a tenant in common with defendant in the water which the contract gave the defendant the exclusive right to use on the Knox lease. Neither was the defendant, nor could he be, q tenant in common with plaintiff as to the water used by plaintiff for domestic and irrigation purposes. Such an idea involves a manifest contradiction of terms. The only subject-matter to which such allegations can be applied is the surplus water, the proceeds of the sale of which plaintiff recovered by the judgment in question.

' The record affirmatively discloses that the most‘material issues necessary to be established in'plaintiff’s favor, in order to justify tlie judgment, were not ‘submitted to or found by the jury. One such issue was that of plaintiff’s exclusive ownership of the water which was sold. If there was any evidence whatever that plaintiff was such exclusive owner, it was certainly not conclusive of the fact. No other issue was submitted or found that was not just as consistent with defendant’s ownership of the water as of plaintiff’s, or of their joint ownership as tenants in common. The issue therefore cannot be supported by any presumption -that it was found in plaintiff’s favor.

In my opinion, essentially the same case is presented as upon the former appeal. The only difference is that by amendment plaintiff struck out some of his express allegations that the parties were tenants in common in the ownership of thp water, and left or added allegations which, if they do not also affirmatively show such fact, nevertheless do so by reasonable inference. There was therefore no basis in the pleading for the judgment, nor was there in the evidence.

It is therefore my opinion that the judgment of the trial court should be reversed, and the cause again remanded.