author: PLEASANTS, C. J.

text:
    HACKER v. HACKER et al.
    Court of Civil Appeals of Texas. Galveston.
    March 8, 1928.
    1. Receivers ¡§=>77(2) — Sale under trust deed of property placed in charge of receiver held void, where had without court’s consent.
    Where court acquired jurisdiction over property in divorce proceedings and appointed receiver to take charge of it and dispose of it in accordance with the -decree, sale of property without court’s consent under trust deed, for foreclosure of trustee’s lien, did not affect title held by receiver 'and was ineffectual to pass any title to purchaser at sale, since property was in custodia legis.
    2. Tenancy in common ¡§=3l 9 (4)— Outstanding title acquired by, divorced wife as tenant in common with former husband inured to benefit of husband.
    Where divorce decree partitioned community property, making husband and wife coten-ants, title which wife acquired by virtue of conveyance from purchaser at foreclosure sale under trust deed inured to husband’s benefit, since one joint tenant cannot acquire superior outstanding claims against the other.
    3. Tenancy in common ¡§=319(1) — One cotenant cannot acquire superior outstanding claim as against the other.
    One cotenant cannot acquire superior outstanding claim as against another so long as relationship of joint tenants continues.

      4. Tenancy in common <§=H9(5) — Interest of tenant held chargeable with proportion of indebtedness due under trust deed, notwithstanding unauthorized sate of property thereunder and subsequent purchase by cotenant.
    Unauthorized sale of property under trust deed and subsequent purchase thereof by one of catena nts held not to discharge indebtedness of other cotenant, but his interest was charged with proportionate amount of indebtedness, which he was required to pay before his title could be perfected.
    5. Tenancy in common ©=>28(3) — Cotenant in possession holding under unauthorized foreclosure sale was not liable for rent to cotenant unless she excluded him from joint possession after his offer to pay proportion of indebtedness.
    In suit by tenant to cancel deed to cotenant in possession given under unauthorized foreclosure sale under trust deed, cotenant- in possession was not chargeable with rents unless after her purchase she excluded plaintiff from joint possession of property after an offer on his part to pay his proportion of indebtedness, /in which case she would be liable for reasonable rental value of plaintiff’s interest during period of such exclusion.
    6. Tenancy in common (®=»28 (3) — Tenant wrongfully excluding ootenant from joint possession is liable for reasonable rental value of other’s interest.
    Tenant in common who improperly excludes other tenant from joint possession of property is liable for reasonable rental value of other’s interest therein.
    7. Tenancy in common <®=>38(I3) — Tenant suing cotenant to set aside deeds under unauthorized foreclosure sale was entitled to judgment for bis undivided interest or proceeds thereof, charged with indebtedness due by him.
    In suit by tenant against cotenant to set aside deeds given pursuant to unauthorized sale under foreclosure of trust deed, plaintiff was entitled to recover judgment for his undivided interest, charged with amount due by him, or to division of proceeds in ease property was incapable of partition.
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by William Hacker against Etta W. Hacker and others. Judgment for defendants, and plaintiff brings error.
    Reversed and remanded, with instructions.
    King <& Wood and H. G. Butts, all of Houston, for plaintiff in error.
   PLEASANTS, C. J.

Plaintiff in error brought this suit against Etta W. Hacker, Sam McNeill, W. S. Hunt, and L. F. Schwiek-art, defendants in error. The purpose of the suit is to cancel a deed executed hy defendant Hunt to defendant Sehwiekart, and a deed executed hy Sehwiekart to defendant Etta W. Hacker, conveying land described as lot 11 in block 249, south side of Buffalo bayou, in the city of Houston, and to recover .of the defendant Hacker an undivided twenty-three twenty-fifths of said land.

Plaintiff’s petition alleges, in substance, that by a decree rendered by a district court of Harris county on May 9,1922, in a suit for divorce and partition of community property brought by him against the defendant Etta Hacker, it was adjudged that he was the owner of twenty-three twenty-fifths and the defendant Etta Hacker two twenty-fifths of the property before described. At the time this divorce and partition decree was rendered the property in controversy was subject to a vendor’s lien and deed of trust to secure the payment of $9,000 due the defendant Sam McNeill as part of the purchase money for the property, which, amount was payable in monthly installments of not less than $100. In the decree of divorce and partition a receiver was appointed andi directed to take charge of the property and directed to sell or rent it and out of the proceeds to pay the debts of the parties and to hold the balance, if any, subject to the further orders of the court. The receiver so appointed qualified as such by taking the oath and filing the required bond. The defendant Etta Hacker has remained in possession of the property continuously since the rendition of this decree and paid no rent therefor. Soon after the rendition of this decree plaintiff removed from.Harris county to the state of Colorado, where he now resides, but before leaving he made a verbal agreement with defendant McNeill, who held the indebtedness on the property, that such indebtedness would not be declared due for failure to pay the monthly installments, as provided in the deed of trust, until this defendant had complied with his contract with plaintiff to perfect plaintiff’s title to the property.

It is then alleged that in violation of his agreement and without such default in the payment of the monthly installments as would under the original contract between the parties authorize the holder to declare the whole indebtedness due, and while the property was in the custody of the receiver, the defendant McNeill declared the whole indebtedness due, and by conspiring with defendant Mrs. Hacker for the purpose of enabling her to defraud plaintiff of his interest in the property, he procured a sale of the property by the trustee Hunt under the deed of trust executed by the plaintiff; that the defendant Sehwiekart was the ostensible purchaser at this sale, but in fact took the title for the defendant Mrs. Hacker and in a few days after the sale conveyed the property to Mrs. Hacker for the exact amount of his bid therefor, he having in fact paid nothing therefor, and defendant McNeill having accepted the obligations of Mrs. Hacker for payment of the indebtedness due him upon the same terms under which plaintiff acquired the property.

It is further alleged that, by reason of the facts before stated, the title thus acquired by the defendant Mrs. Hacker was held in trust for plaintiff to the extent of his twenty-three twenty-fifths interest in the property, and that he is and has at all times been ready, able, and willing to comply with his original contract and pay whatever may be found due by him under his contract.

The prayer of the petition is for cancellation of the Hunt and Schwiekart deed and recovery of plaintiff’s interest in the property and for equity and general relief.

The defendant McNeill answered by general demurrer, special exceptions, and general denial, and further specially pleaded that the sale under the deed of trust was after plaintiff had made default in the payment of installments due under his contract of purchase, had failed to pay taxes due on the property and to keep the property insured as provided in his contract, and by reason of such defaults defendant had the option under his contract with plaintiff to mature the whole indebtedness and foreclose his lien by sale under the deed of trust.

He then specially denied any conspiracy or any dealing with Etta W. Hacker, either directly or indirectly, with reference to the foreclosure of his lien or with reference to a resale thereof to her, but alleged that after said sale had taken place she came to him to enlist his sympathy and assistance to repurchase said property, and he thereupon requested the defendant Schwiekart, the purchaser at the sale, to sell the same to Mrs. Hacker upon the terms stated in the deed evidencing the same, and prays judgment accordingly.

Defendants' W. S. Hunt and D. E. Schwiek-art filed their joint answer, consisting of general demurrer and general denial and special denial of any conspiracy of any agreement of any kind with any one that did or could in any way affect the validity of the sale under the deed of trust and adopted, so far as applicable to them, all and singular, the allegations contained in the answer of the defendant Sam McNeill.

The trial in the court below resulted in a verdict and judgment in favor of the defendants.

The evidence shows that the property in controversy was conveyed to plaintiff and defendant Etta W. Hacker, who were then husband and wife, by defendant Sam Mc-Neill and wife, on July 1, 1920. This deed recites a consideration of $11,000, of which amount $2,000 was paid by the grantees in cash, and for the remaining $9,000 they executed their note in favor of the grantors payable in monthly installments of not less than $100, with interest at the rate of 7 per cent, per annum. To further secure the payment of this note, the Hackers executed a deed of trust to W. S. Hunt conveying the property, and authorizing its sale by the trustee on request of the holders of .the note in event of default in the payment of the note or the failure of the grantors to comply with any of the conditions and covenants contained in the trust deed.

On May 9, 1922, in a suit for divorce brought by plaintiff against Mrs. Hacker in the district court of Harris county, Eleventh judicial district, and in which the defendant Mrs. Hacker, by her answer therein, asked for a partition of all the property owned jointly by the parties, a decree was rendered, upon the verdict of a jury, granting plaintiff’s prayer for divorce and settling the rights of the parties in all of their property.

This decree adjudged and decreed that plaintiff was the owner and entitled to recover from Mrs. Hacker an undivided 2390.59/2568.69 of the property in controversy in this suit, and that the defendant Mrs. Hacker was the owner and entitled to recover of plaintiff the remaining portion of the property. It is further ordered and decreed that a receiver be appointed to sell the property in controversy,

—“with full power and authority to rent, collect the rents therefrom, and to issue his receipts therefor, and to sell said property either at public or private sale subject to the approval of the court, and report said sale at once to this court and to pay the commjmity debts, after the sale of said property, owing by the plaintiff and defendant, as follows:” (Here follows a list of the debts ordered to be paid.)

The bond of the receiver was fixed at $5,000.

It was agreed on the trial that the receiver appointed by the court duly qualified as such. There was no appeal from this decree, it has not been set aside and remains as the final adjudication of the interests of the parties in the property in controversy.

In June, 1922, plaintiff removed from Houston to Denver, Colo., where he now resides.

In July, 1922, defendant McNeill, claiming such default in the monthly payments due on his indebtedness and in the covenants to pay taxes and keep the property insured as authorized him under the provisions of the deed of trust to declare the whole indebtedness due, exercised such option and requested the trustee Hunt to sell the property under the provisions of the deed of trust. In compliance with this request the property was sold by the trustee on August 1, 3.922, after due notice in accordance with the terms of the trust deed. At this sale the defendant Schwiekart bid in this property and procured a deed from the trustee. In so obtaining the title Schwiekart paid no money, and was acting as agent for defendant McNeill, and thereafter, on August 10, 1922, he conveyed the property to Mrs. Hacker for a consideration of $300 in cash and a note for the balance of the amount due on the original indebtedness payable in monthly installments of $100.

Upon his qualification the receiver endeavored to obtain an agreement from Mrs. Hacker, who was in possession of the property, to pay $100 per month rent for the premises. She would not agree to pay this amount, nor the sum of $75 per month which the receiver finally offered to take. No steps were taken by the receiver to dispossess her, and she was in possession at the time of the trustee’s sale. Some time after the sale the receiver obtained his discharge, and no further action was taken in the court in which the receivership was pending.

Appellant, under proper assignments and propositions presented in his brief, complains of the judgment upon various grounds. The appellees have filed no briefs.

We find it unnecessary to set out or discuss all of the propositions contained in appellant’s brief.

We agree with appellant that the sale under the trust deed was unauthorized and did not pass appellant’s title to the defendant Schwiekart, because the property at the time of the sale was in custodia legis. The district court of[ Harris county having acquired jurisdiction over the property by the divorce proceeding, and having appointed a receiver to take charge of it and dispose of it in accordance with the decree of that court, no valid sale of the property could be made under process from any other court without the consent of the court in which the receivership was pending, and for a stronger reason a sale by a trustee foreclosing a Ren would not affect the title held by the receiver. Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Wiswall v. Sampson, 14 How. 52, 14 L. Ed. 322; Ellis v. Vernon Ice Co., 86 Tex. 109, 23 S. W. 859 ; Scott v. Crawford, 16 Tex. Civ. App. 477, 41 S. W. 697.

We also agree with appellant's contention that any title which Mrs. Hacker may have acquired by her conveyance from Schwiekart inured to the benefit of appellant. Mrs. Hacker and appellant being joint tenants, as long as such relationship continued neither could acquire as against the other a superior outstanding claim. The following quotation from the case of Johnston v. Johnston (Tex. Civ. App.) 204 S. W. 469, correctly states the rule and cites many of the authorities sustaining it:_

“As a general rule the redemption of the common property by one joint tenant, whether accomplished by the acquisition of the incum-brance or by the purchase of the property at a foreclosure sale, will inure to the benefit of the joint owners. Roberts v. Thorn, 25 Tex. 735, 78 Am. Dec. 552; 7 R. C. L. 857 et seq. But the tenant who redeems has a right to demand contribution from his co-owners'. As between him and defaulting co-tenants the lien is not extinguished, but is kept alive for his benefit, and may be foreclosed upon the failure of the co-owners to reimburse him within a reasonable time. Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1029; Hogan v. McMahon, 115 Md. 195, 80 A. 695, 24 Ann. Cas. 1912C, 1260; Starkweather v. Jenner, 216 U. S. 524, 30 S. Ct. 382, 54 L. Ed. 602 17 Ann. Cas. 1167, and, notes; 7 R. C. L. 868. The tenant who redeems the common property becomes subrogated to the rights of the original lienholder.”

The general rule here stated is approved and followed in the cases of Rogers v. White (Tex. Civ. App.) 194 S. W. 1001, Ford v. Weisher (Tex. Civ. App.) 253 S. W. 958, and Magruder v. Johnston (Tex. Civ. App.) 233 S. W. 665.

Sttch unauthorized sale of the property and its purchase by Mrs. Hacker did not discharge appellant’s indebtedness on the property, and his interest therein is still charged with his proportion of the indebtedness which he must pay before his title can be perfected.

The record does not disclose the ‘ amount of such indebtedness, nor to whom it is now due," and the cause must therefore be remanded for an ascertainment of those facts. Mrs. Hacker, being a cotenant with appellant, cannot be charged with rents unless it be shown that after her purchase from Schwiekart she has excluded appellant, aftfer an offer by him to pay his proportion of the indebtedness, from joint possession of the property with her. For such time as she has done this she would be liable for the reasonable rental value of appellant’s interest in the property. Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748.

The judgment of the court below is reversed and the cause remanded, with instructions to the trial court to render judgment for appellant for his undivided interest in the property, charged with such amount as may be found from the evidence to be due by him. If the property is incapable of partition, it should be ordered sold and the proceeds divided in accordance with the equities of the parties under the rules above stated.

Reversed and remanded, with instructions.
      ¡@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    DE LEON et al. v. LONGORIA et ux.
    (No. 7892.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1928.
    1. Appeal and error @=>345(1) — Notice of appeal from order overruling second motion for new trial, made after judgment was rendered, gave appellate court jurisdiction, though made more than two days after entry of verdict.
    Where verdict in'death action was on special issues, plaintiffs held to have properly served notice of appeal within two days after overruling of second motion for new trial on whole case which was made within two days after entry of judgment for defendants, though more than two days after entry- of verdict, notwithstanding failure to give notice of appeal from order overruling plaintiffs’ motion for judgment or for mistrial and new trial.
    2. Automobiles @=>247 — Findings held to require judgment for defendants in action for death of pedestrian on highway, who became confused and stepped in path of defendants’ automobile.
    In action against automobile owners for death of pedestrian on highway, who became confused and stepped in path of approaching car, findings as to negligence and contributory negligence held to require judgment for defendants, notwithstanding findings that defendants’ car was not provided with adequate brakes and that defendants by exercising ordinary care could have avoided accident.
    3. Automobiles <©=3247 — Finding that defendants could have avoided accident held not to authorize judgment for plaintiffs in death action, where issue of proximate cause was not submitted.
    In action against automobile owners for death of pedestrian on highway, finding that defendants, by use of ordinary care, could have avoided colliding with deceased, held not to authorize judgment for plaintiffs, where issue whether such negligence was proximate cause of accident was not requested nor submitted to jury.
    4. Automobiles @=>247 — In death action, findings for defendants held not so conflicting as to preclude judgment, notwithstanding findings as to defendants’ defective brakes and failure to avoid accident.
    In action for death of pedestrian, struck by defendants’ automobile on highway, findings for defendants held not so conflicting and contradictory as to preclude judgment thereon, where findings that defendants’ car was equipped with defective brakes and that defendants could have avoided accident were neutralized by finding that defective brakes were not proximate cause of accident and failure to submit issue whether negligence in failing to avoid accident was proximate cause.
    5. Appeal and error @=31001(0 — Findings supported by testimony are conclusive.
    Where there was sufficient testimony in death action to support jury’s findings, reviewing court is without authority to disturb such findings.
    6. Trial @=>140(1) — It is juror’s province to weigh testimony and appraise credibility of witness in his own way.
    It is province of juror to weigh by his own processes testimony of witnesses and to appraise in his own way their credibility.
    7.'Trial @=>304 — It is improper for juror, during examination of witness, to give audible voice to conclusion that witness is lying.
    It is highly improper for juror, during examination of witness, to give audible voice to his conclusion that witness is not telling truth.
    8. New trial @=>44(2)— Juror’s exclamation indicating conclusion that witness was lying held not to warrant disturbing of verdict, where fellow jurors were not influenced.
    Action of juror during examination of witness, in indicating, by statement in audible tone, conclusion that witness was not telling truth, held not to warrant trial court in disturbing ultimate verdict, where fellow jurors did not hear his exclamation and were not influenced by it.
    9. New trial @=>55 — Plaintiffs waived right to complain of juror’s exclamation during examination of witness by failing to make objection until after verdict was returned.
    Plaintiffs in death action held to have waived right to complain of juror’s exclamation during examination of witness, indicating conclusion that he thought witness was lying by failing to make objection until after trial was concluded and verdict returned.
    10. New trial @=>140(1) — Parties seeking new trial because juror was under indictment must prove that they knew nothing of pendency of indictment till after verdict (Rev. St. 1925, art. 2133, § 7).
    In order to secure new trial because juror was under indictment for felony, contrary to Rev. St. 1925, art. 2133, § 7, it is necessary for moving parties to prove as well as allege that they knew nothing of pendency of indictment till after jury’s verdict was returned.
    11. New trial @=>42(1) — That juror in civil case is under indictment for felony does not of itself require setting aside of verdict (Rev: St. 1925, art. 2133, § 7).
    Mere fact that member of jury in civil case is under indictment for felony does not of itself require that verdict of jury be set aside, though pendency of such indictment disqualifies juror, under Rev. St. 1925, art. 2133, § 7.
    12. New trial @=>55 — Party knowing that juror is under indictment for felony waives objection by failing to make it till after verdict (Rev. St. 1925, art. 2133, § 7).
    Where party knows that juror is under indictment for felony within Rev. St. 1925, art. 2133, § 7, he waives objection by failing to make it until after verdict; since such objection must be “seasonably” made.
    13. New trial @=>44(1) — Disposition of contentions as to misconduct of jury during deliberations is primarily within discretion of trial judge.
    Disposition of contentions relative to misconduct of jury during deliberations is primarily and peculiarly within discretion of trial judge who saw and heard jurors testifying at hearing.
    14. Appeal and error <&wkey;!068(5) — In death action, in whieh jury found brakes of defendants’ automobile defective, refusal to instruct that law violation in operating motor vehicle is negligence per se, if error, held harmless, in view of findings on proximate cause.
    In action for death of pedestrian struck by automobile in which jury found that defendants’ brakes were defective, refusal of instruction that violation of law in operating motor vehicles resulting in injury is negligence per se, if error, held harmless, where jury found defective brakes were not proximate cause of accident, and that accident was proximately caused by contributory negligence of decedent.
    15. Trial <&wkey;>252(8) — In action for death of pedestrian struck by automobile which she saw approaching, charge that one .entering highway is presumed to have stopped, looked, and listened held properly refused as inapplicable.
    In action for death of pedestrian struck by automobile on highway, charge that person entering highway is presumed to have stopped, looked, and listened for approaching automobiles held properly refused as inapplicable to facts, where undisputed evidence showed that deceased saw car approaching, moved out of its path, and then, becoming confused, stepped back into its path.
    16. New trial <&wkey;X02(l) — New trial for newly discovered evidence held properly refused, in absence of showing of diligence to discover it before trial.
    Motion for new trial on ground of newly discovered evidence held properly overruled, where moving parties showed no diligence in discovering before trial that such testimony was available to them.
    17. New trial <§=^105 — In death action, new trial will not be granted for newly discovered evidence to contradict testimony of defendants’ chauffeur.
    In action for death of pedestrian struck by automobile on highway, new trial will not be granted for newly discovered evidence proffered for purpose of contradicting testimony of defendants’ chauffeur as to speed of car.
    Appeal from District Court, Webb County; J. XT. Mullally, Judge.
    Action by Simon L. De Leon and another against O. L. Longoria and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.
    Pope, Pope & Pope and M. J. Raymond, all of Laredo, for appellants.
    Mann, Neel & Mann, of Laredo, and J. D. Dodson, of San Antonio, for appellees.
   SMITH, J.

On Easter Sunday, 1926, Maria B. De Leon and her husband and minor .son, accompanied by a driver, set out in an automobile upon a journey from Laredo to San Antonio. When they reached a point about 20 miles from Laredo they stopped their car, on'the extreme east side of the road, and Mrs. Leon left the car, crossed the paved highway, and stopped in a ditch beyond, in response to a call of nature. Shortly afterwards she emerged from the ditch and approached the highway, along which motorcars were quite frequently passing. A car was approaching, followed within a short distance by another, which was owned by O. L. Longoria and wife, and occupied by Mrs. Longoria and’ some friends, and driven by her chauffeur. Mrs. Leon waited by the roadside until the first car passed, and started across the highway. She had gotten nearly across, it seems, when she realized the Longoria car was close at hand. Had "She continued on her way, or if she had stopped at that juncture, she would have been in the clear. But, in her excitement and confusion, she hesitated, turned back west, and came immediately in the path of the on-coming car, which struck her, crushing the life out of her. Her husband, in his own behalf and as next friend of their minor son, brought this suit against Mrs. Longoria and her husband for damages resulting from the death of the wife and mother. In response to jury findings, the trial court rendered judgment denying recovery to the Leons, plaintiffs below, and they have appealed.

The jury returned a verdict upon special issues, and within two days thereafter appel-lees filed a motion for judgment in their behalf. Within that time also appellants filed a motion for judgment in their behalf, or, in the alternative, to set aside the verdict and declare a mistrial, and for a new trial. The trial court overruled appellants’ and granted appellees’ motion, and rendered judgment against the former and in favor of the latter. Appellants did not give notice of appeal from the order overruling its said motion. Within two days after entry of judgment, but more than two days after the verdict was returned, appellants filed a second motion for new trial upon the whole ease, which was overruled. To the order thereon, appellant excepted, and gave notice of appeal.

Appellees contend that, because appellants did not seasonably give notice of appeal from the first order overruling their motion for. judgment, or for mistrial and new trial, this court has acquired no jurisdiction; that notice of appeal from .the second order, overruling appellants’ second motion for new trial, was not sufficient to give this court jurisdiction; that the law does not contemplate a second motion for new trial, and the right of appeal springs from the first motion only. We overrule this contention. Appellants had the right to file the first motion, and some courts hold that they were required to file an intermediate motion for judgment and to set aside the verdict in order to entitle them on appeal to complain of that verdict. Until that motion was acted upon, appellants could’not know the nature and terms of the judgment to be rendered upon the verdict, and were within their rights . in withholding motion for new trial upon the whole case until that judgment was rendered. When they filed that motion within two days after rendition of judgment, they were acting within the law, and, when they gave notice of appeal within two days of the overruling of that motion, they preserved their right of appeal.

The jury found in response to one group of special issues that at the time of the collision appellees’ car was not being driven at a rate of speed in excess of 35 miles an hour; that appellees’ chauffeur was a competent and skillful one; that, after discovering the position of the decedent upon the ¡highway, appellees could not have avoided the collision by the use of ordinary care and the means at their command; that appel-lees were not guilty of gross negligence, of liable for exemplary damages. These findings, if standing alone, would have required a judgment exonerating appellees from liability as a matter of course.

The jury also found in a second group of findings that at the time of the accident ap-pellees’ ear was not provided with “adequate brakes, kept in good working order,” but the adverse effect of this finding upon appellees’ liability was neutralized by the further finding that the death of the decedent was not proximately caused by the defective condition of the brakes, wherefore this element of , negligence was eliminated from the case, and the findings in the first and second groups of issues, if standing alone, would have required a judgment for appellees.

In a third group of issues, the jury found that the decedent failed “to exercise, for her own safety, at the time and place of the accident alleged in plaintiffs’ petition, such care as an ordinarily prudent person would have exercised under the same or similar circumstances which surrounded her at the time of the accident,” and that such failure on the part of the decedent was the proximate cause of her injuries. Thus the findings on the first, second, and third groups of issues, considered together, and if standing alone, required the rendition of judgment in favor, of appellees.

There remains but one other issue upon ' the matter of liability which was submitted to and answered by the jury, which was, “Do you believe from the evidence that defendants, by the use of ordinary care in traveling upon the highway, could have avoided colliding with deceased V” The jury answered “Yes” to this issue. The issue of whether or not the negligence so found was the proximate cause of the accident was not submitted to or found upon by the jury, nor did either party request •the submission of that issue. So the first finding, in the absence of the second, afforded no basis for a judgment, against appellees.

In their second proposition of law, appellants contend that the findings of the jury are “so conflicting and contradictory to each other that an intelligent judgment could not be based thereon.” We have set out and analyzed the effect of each of those findings, and conclude that they do not present such conflict as appellants claim. They say the conflict arises from the findings that appel-lees’ car was equipped with defective brakes, and that by the use of ordinary care in traveling upon the highway appellees could have avoided the accident; that those findings are in conflict with the remaining findings. But, when the jury found that the accident was not proximately caused by the defective brakes on the car, the effect of the finding of defective brakes was destroyed, and it was rendered impotent as an element of conflict. So much may be said also of the finding that, by the use of ordinary care in driving upon the highway, appellees could-have avoided the collision. If the jury had gone further and found that the negligence was the proximate cause of the accident, a different question might have been presented, although the finding of contributory negligence might still have controlled; it is not necessary to decide the effect of this hypothesis, however, for the jury did not find upon proximate cause as related to the issue, and the barren finding upon that issue, and the neutralized finding upon the issue of defective brakes, could not operate to create a conflict with effective findings upon other issues. We overrule appellants’ second -proposition.

The evidence in the case was such as to require the submission to the jury of each of the issues mentioned. There was sufficient testimony to support the jury’s findings on those issues, and therefore this court is without authority to disturb thbse findings. This conclusion requires the overruling of appellants’ first proposition.

Appellants assert In their third proposition that, during the examination of the very first witness testifying in the case, one of the jurors, Henry Orumpler, asked, in an audible tone, “Why the hell doesn’t he (meaning the witness) tell the truth; why does he wish to lie?” Appellants claim that this conduct upon the part of the juror showed that he went into the trial with a preconceived prejudice against appellants, and that on that account the court, upon motion made at the conclusion of the trial, should have set aside the verdict and declared a mistrial. Upon the hearing of the motion, Orumpler testified at some length, explaining his interpretation of the witness’ testimony, and giving his reason for his impatient exclamation; he concluded that the statement of the witness, which called forth this exclamation, ■ was so inconsistent with other statements of the witness as to show that the witness could not possibly be telling the truth, wherefore the exclamation. It is not shown that other jurors heard the exclamation, or were influenced by it. It was the province of the juror to weigh, by his own processes, the testimony of the witness, and to appraise in his own way, the credibility of the witness, and, if he concluded from the conduct, manner, and words of the witness that the latter was not testifying truthfully, he was but exercising his prerogative as a juror; whether justly or unjustly was a matter for his own judgment and conscience, and not for an appellate court to determine. Of course, however, it was highly improper for him to give audible voice to his conclusion, at that time and place, but, if his fellow jurors did not hear his exclamation, or were not influenced by it, the incident did not warrant the trial court in disturbing the ultimate verdict of the jury. Besides, it appears that appellants were aware of the incident at the time it occurred, but made no objection until after the trial was concluded, and the verdict returned. Thus they waived the right to complain. Blanton v. Mayes, 72 Tex. 417, 10 S. W. 452.

The same juror, Crumpler, is the subject of appellants’ eleventh proposition, in which it is contended that the court should have granted a new trial because Crumpler was under indictment for a felony at the time of the trial of this case. This juror was “picked up” after the regular panel was exhausted, and appellants assert, with obvious reason, that in this way they had no opportunity to investigate the juror or ascertain this or any other fact about him. If appellants or their counsel knew at the time of his voir dire examination, that the juror was under indictment for a felony, as the record discloses he was, they could not develop the fact through •him, since they were prohibited by statute from asking him questions which would elicit that fact. Article 2145, R. S. 1925. The juror was a resident of Laredo, as were appellants and their counsel, and the latter were personally acquainted with him. The juror testified that shortly following his indictment he met one of appellants’ counsel, when the latter proffered help to him, and the juror understood the proffer was with reference to the indictment. This testimony does not appear to have been contradicted,. and the inference from the whole record is that appellants knew of the pendency of the indictment against the juror. No one testified on the point upon the hearing of the motion for new trial, when this objection to the juror was first raised. It is true that it was alleged in the motion that appellants and their counsel knew nothing of the pendency of the indictment until after the jury’s verdict was returned. But this is not sufficient; it was necessary to prove the allegation in order to render it operative.

The law is that' — •

“No man shall be qualified to serve as a juror who does not possess the following qualifications: * * * He must not be under indictment or other legal accusation of theft or of any felony.” Section 7, art. 2133.

Although contrary to the rule in criminal cases (Amaya v. State, 87 Tex. Cr. R. 160, 220 S. W. 98), the mere fact that a member of a jury in a civil case is under indictment for a felony does not of itself require that the verdict of that jury be set aside. The pendency of such indictment disqualifies a juror, just as the fact that he is not a freeholder or householder disqualifies hiia, and either party may object to a juror laboring under either disability. If the objection is raised at the appropriate time, the trial court must sustain it and excuse the juror. But the objection must be seasonably made, and, if not, will be considered as waived. So must the parties exercise diligence to ascertain if the jurors on the panel are subject to disqualification, which may be done on their voir dire examination in the case of nonfreeholders or nonhouseholders, but by other means if any of them are under accusation of felony. If a party seeks to set aside a verdict upon the ground that one of the jurors was under such accusation, he must show by allegation in the motion, and by evidence upon the hearing, that the ground of the objection to the juror was unknown to the complainant at the time of the selection of the jury, and that he had exercised due diligence to ascertain the status of the juror in that respect. In this case, because the juror was “picked up” off the street at the time, and appellants had no opportunity to make investigation, appellants met the requirement of diligence. But, in addition to the total absence of any evidence that appellants knew nothing of the indictment pending against the' objectionable juror, the record warrants the inference that appellants or their counsel had previous knowledge thereof. It is obvious, then, that by not seasonably raising the objection to the juror at a time when the trial court could and would have excused him, and allowed, the parties to agree upon another, appellants waived their objection, and must be content with his participation in the deliberations and findings of his fellows. Any other rule would permit litigants to speculate upon the disqualification of jurors, to the prejudice of orderly procedure in the trial and disposition of causes. These conclusions are supported by the decisions, and particularly of this court in the opinion of Chief Justice Fly, in the ease of Sinsheimer v. Weil Co., 61 Tex. Civ. App. 209, 129 S. W. 187.

Appellants’ twelfth, thirteenth, fourteenth, seventeenth, eighteenth, nineteenth, twenty-first, twenty-second, and twenty-third propositions relate to the alleged misconduct of the jury during their deliberations. We have very carefully considered these propositions and the contentions of appellants arising from them. We have concluded that neither of those propositions presents* reversible error, but we are not disposed to prolong this opinion by a discussion of them in detail. The disposition of such matters was primarily and peculiarly within the discretion of the trial judge. Pie presided over the trial; he heard the evidence presented in support of the motion for new trial concerning the conduct of the jury; he saw and heard the jurors who testified at the hearing; and these facts, in connection with his long and honorable service on the bench, his learning ability, and fairness, peculiarly fitted him to pass upon the matters raised. Nothing is presented .which could indicate that he has abused his wide discretion in- such matters, and this court declines to overrule his decision concerning them. ■ In nearly every jury case which has lately reached this court attacks are made upon the judgment appealed from, because of alleged misconduct of the jury. Such assaults, if improvidently yielded to, will go far towards breaking down the integrity and efficiency of our jury system. The tendency should be discouraged, and the determination of such matters left more and more to the trial judges, who are in the best position to pass upon those matters. Appellate courts should look coldly upon efforts to discredit the conduct of jurors in their deliberations, and with suspicion upon jurors who seek to befoul their own. nests, who stultify themselves and endeavor to discredit their fellows. We think the trial judge in this case wisely and properly disposed of the attacks upon the conduct of the jury, and we overrule the propositions through which those attacks are raised.

Appellants requested the court to instruct the jury that “the violation of law in the operation of motor vehicles resulting in injury to another is negligence per se.” The court overruled the request, and appellants complain of this ruling in their fourth proposition. It is contended in the argument under this proposition that the requested charge should have been given, in view of the finding of the jury that appellees’ car was equipped with defective brakes, in violation of the statute. Without determining the propriety of the charge as a general proposition, its refusal was rendered immaterial and harmless in the particular instance by the affirmative finding of the jury that the defective condition of the brakes was not the proximate cause of the accident, especially when coupled with the further finding that the accident was proximately caused by the contributory negligence of the decedent. The fourth proposition is overruled.

Appellants requested, and the court refused to give, a special charge that:

“The presumption at law is that a person who enters upon a highway has stopped, looked, and listened for approaching automobiles, and this presumption' continues unless rebutted by the evidence.”

Of the refusal of this charge, appellants complain in their fifth proposition, which is overruled. The question of whether or not decedent stopped, looked, and listened is not in the ease, for the undisputed evidence is that she saw the car approaching, moved hurriedly out of its path, and then, in obvious confusion and excitement, stepped back into its path, and was then struck. The charge was properly refused, as not being applicable to the facts of the case. Nor was appellants’ requested charge No. 6 applicable, for which we overrule their sixth proposition. Eor a like reason appellants’ seventh proposition is overruled. The eighth is overruled because the charge therein mentioned was inapplicable, and in any event its refusal was harmless to appellants. The jury having found against discovered peril that appel-lees’ car was being operated within the rate of speed fixed by statute, and that the accident proximately resulted from decedent’s negligence, a possible finding of the jury that appellees’ car was “being operated at such rate of speed as might endanger the life or limb of deceased” would not have affected the judgment rendered. There is no merit in appellants’ ninth proposition, which is overruled, nor in the tenth, nor in the sixteenth, nor in the twentieth,, which are also overruled.

The witness T. A. Bunn testified in behalf of appellants upon the trial of the ease. His whole testimony related to statements made to him, after the accident, by-the driver of appellees’ car. Among other things, -he testified that the driver stated to him that, after he saw that the decedent “did not get out of the way-, he was running so fast he could not stop, and hit the woman, and that it was not his fault, because Mrs. Longoria (one of the appellees) wanted him to drive fast.” The driver in question testified upon the trial that the death car was running at a rate of not more than 25 miles an hour when it collided with decedent. In their motion for new trial, appellants alleged that since the trial they had ascertained that the witness Bunn would testify further, if put on the stand, that the driver of appellees’ car told him, in the conversation about which Bunn testified on the main trial, that appel-lees’ car was being driven at the rate of 60 or 65 miles an hour at the time of the accident. Appellants set this up as newly discovered evidence of such importance as to warrant the granting of a new trial. The court overruled the motion, and appellants complain thereat in their fifteenth proposition, which must be overruled, upon the ground that appellants showed no diligence in discovering that such testimony was available to them. He was, their witness; his, whole testimony related to the conversation in which the alleged statement of the chauffeur was made to him; he was asked no question which would have elicited the statement he now agrees to make, which fact alone warranted the court in overruling the motion. Moore v. Lehmann (Tex. Civ. App.) 165 S. W. 83; Moores v. Wills, 69 Tex. 109, 5 S. W. 677. Moreover, the newly discovered evidence is proffered for the purpose of contradicting the testimony of the chauffeur, and 6 new trial will not be granted for such purpose. Houston & T. C. Ry. v. Forsyth, 49 Tex. 171; Houston & T. C. Ry. v. Davenport, 102 Tex. 369, 117 S. W. 790.

In our opinion, no reversible error has been presented, and the judgment is therefore affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: COBBS, J.

text:
    RANKIN v. PARKER.
    (No. 7947.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 29, 1928.
    1. Appeal and error <§=>742(I) — Assignments on which no proposition nor statement has been made will be treated as waived (Courts of Civil Appeals (rules 29, 30, 31).
    Under rules 29, 30, and 31 of Courts of Civil1 Appeals, assignments on which no proposition nor statement has been made will, on appeal, be treated as waived.
    2. Exchange of property <&wkey;8(3) — -Petition in suit for damages resulting from exchange of property due to defendant’s alleged misrepresentations as to irrigability of land and failure of title to part thereof held not subject to general demurrer.
    In action to recover damages resulting from exchange of lands because of defendant’s alleged misrepresentations that all of lands exchanged by him were irrigable lands and because title failed to part thereof which was of greater value than the balance of the land, petition held not subject to general demurrer.
    3. Pleading <&wkey;>l93(2) — If petition shows good cause of action against general demurrer, demurrer must be overruled, though cause was based on erroneous theory.
    If the petition shows a good cause of action against a general demurrer, the demurrer must be overruled, even though the cause of action was based on an erroneous theory.
    4. Pleading <§=193(8) — Petition is not subject to general demurrer where otherwise good because claiming improper measure of damages.
    Where petition claims an improper measure of damages a demurrer should be sustained, but no general demurrer will be sustained where there is otherwise stated a good cause of action, since in such, case the defect must be pointed out by special exception.
    5. Pleading <&wkey;428(2) — Defect In petition could not be raised by objecting to testimony for first time on trial and by moving court to strike it.
    The question of' defect in a petition could not be raised by objecting to the testimony on the particular point for the first time on the trial and by moving court to strike it out.
    6. Evidence <&wkey;474(l8) — Witness may testify as to market value of land, though he does not know of a particular sale.
    Witness may testify as to market value of land, though he states on cross-examination that he does not know of single sale of land in locality, within the past year; weight and value of his testimony being for jury.
    7. Trial &wkey;l39(l), 140(1) — Credibility of witness and weight *of his testimony is for jury.
    The credibility of the witness and weight and value of his testimony is for the jury.
    Appeal from District Court, Cameron County ; A. M. Kent, Judge.
    Suit by W. L. Parker against A. E. Rankin. From the judgment, defendant appeals.
    Affirmed.
    E. T. Yates, of Brownsville, for appellant.
    Myrick & Coursey, of Harlingen, for ap-pellee.
   COBBS, J.

This suit was instituted in the district court of Cameron county, Tex., by W. L. Parker, appellee, against A. E. Rankin, appellant, on November 9, 1926. Appellant thereafter filed his original answer in the form of a general demurrer and general denial. On January 2, 1927, appellee filed his first amended original petition, and on January 18, 1927, appellant filed his first amended answer and a general demurrer and general denial and special answer and cross-action, and on the day of .trial amended said answer by interlineation, admitting that title failed to 14.26 acres of 68 acres of land sold to the appellee by appellant, but alleged the value thereof to be only $165 per acre instead of the value set up by the appellee.

The cause was tried on plaintiff’s first amended petition, defendant’s first amended answer, after amending by interlineations on the day of trial, ■ as hereinabove set out, and upon plaintiff’s first supplemental petition. Appellee alleged: That in August, 1925, he was the owner of 240 acres of land situated in Greer county, Okl., and that appellant claimed to own 68 acres of land situated in Cameron county, Tex., which land the appellant valued at $250 an acre, or at a total of $17,000, and the appellee valued his equity in said land in Greer county, Okl., at $10,000. That appellant represented to the appellee that all of said 68 acres described in appel-lee’s petition was in the territorial limits of the San Benito irrigation district, and being Cameron County water improvement district No. 2, and that upon payment of proper water charges could be irrigated. That relying upon said representations, appellee executed deed to the nominee of appellant in Greer county, Okl., to his 240 acres of land upon appellant’s agreement to deed to appellee said 68 acres of land, said appellant or his nominee assuming $6,000 of the said $7,750 then against the 240 acres, and join the appellee in the execution of a note at a bank at Oklahoma for $1,000, and appellee was to execute, and did later execute, his note to appellant for the sum of $7,000, due January 1, 1931, and in the deed executed to him by appellant assumed a mortgage outstanding against said' property in the sum of $1,000.

Said petition further alleged that at the time that appellant sold or traded said land to the appellee, and appellee sold or traded the 240 acres of land to appellant, that as a part of the consideration to induce the ap-pellee to surrender said premises to the appellant during the fall of 1925, so that appellant could have possession of said premises for the crop year 1926, appellant agreed and promised to appellee that he would place in cultivation and havé ready to plant by the early part of January, A. D. 1926, 50 acres of land in Cameron county, Tex., 10 acres to be planted in beans and 10 acres in tomatoes and 30 acres in potatoes, for which the appellant agreed to furnish seed and have same ready to plant for the winter season of 1926, and that appellant and appellee would go fifty-fifty on what they could make on same, and' that upon the failure of appellant to so keep said agreement appellee was damaged in the sum of $5,500, the various items shown in said petition.

Said petition further alleged that at the time said transaction was closed and possession to the 240 acres of- land delivered to the appellant by appellee appellant agreed to pay the appellee:

For a wheat crop then growing-upon a part o£ said 240 acres the sum o£. $200
For money advanced to appellant during the spring o£ 1926.. 200
Money advanced J. C. Phillips for appellant.... 60 Boarding a hand £or appellant for 6 months.... 160 Labor £or clearing land, etc., for appellant.200

■ Petition further alleged: That the title to 15 acres of said land failed, and that the same was all of the land upon said premises that was in cultivation and was of exceedingly high value, and that the way the line ran, to take the said 15 acres off of the tract would injure the value of the other land, and that said land was worth the sum of $300 per acre to 'the said 68 acres, or a total of $4,500. That appellee was damaged, by reason of failure of 53 acres of said land to irrigate in accordance with .the representations made by the appellant, the sum of $7,200.

In appellee’s petition he admitted that he would owe the appellant certain sums of money to settle, amounting to $1,042.75, and the $7,000 in a vendor’s lien note would be due the 1st of January, 1931.

Appellee prayed: For $4,500, value of 15 acres of land to which title failed. For $7,-200, damages sustained by reason of 53 acres of land being nonirrigable. For $5,500, damages on account of breach of -contract to furnish land cleared and ready to plant in potatoes, beans, and tomatoes for the season of 1926. For $800 for other items, being for a wheat crop, $20(1; money loaned, $200; money advanced to J. O. Phillips, $50; boarding hand for appellant, $150; labor for clearing land and building fence, etc., $200 — total, $800, and asked that any judgment obtained against the appellant be credited with the items which he admitted owing appellant, being $1,042 as shown under paragraph 10 of amended petition, and the note of $7,000, making total which he asked to be charged against any judgment he obtained against the appellant over $8,042, and prayed that said $7,000 note be canceled and that his title to the remaining 53 acres of land be quieted as against said note and any claim of the appellant.

In appellant’s first amended answer he alleged that the appellee was indebted to him for certain items set forth in said amended answer, in the sum of $2,746.50; denied that title to any of said land had failed, but on the day of trial, this part of the pleading was amended by interlineation to show that he had admitted that title had failed to 14.28 acres of said land, which 14.28 acres of land he alleges to be of the reasonable value per acre of $165, and offered to credit the $7,000 note of the appellee with the value of said land at $165 per acre, total $2,356.20, and says that the trade price for said land was $6,000 in vendor’s lien note given by appellee and the appellee’s equity in the Oklahoma property which the appellant alleged is not over $5,000, alleging that in that ease the total consideration paid for the 68 acres' of land by appellee was $11,000 instead of $17,-000, reaching this conclusion by placing what he says is a reasonable value upon the ap-pellee’s equity in the Oklahoma land. Appellant alleges that he made no representations that said 68 acres of land was in any irrigation district non that it was irrigable, but he did represent to the appellee and assured him that appellant would have said land put under irrigation, at his own cost, at any time the appellee so desired; and further alleged, that he has been ready and willing at all times to do so, and remains ready to do so.

Appellee denies owing the items set forth in appellant’s amended answer, but says that the $1,000 reférred.to therein, for which appellant says he paid a note for appellee in the sum of $1,000. Appellee alleges that the appellant took care of $1,000 above the amount that he originally agreed upon, but that ap-pellee added $1,000 to the $6,000 note that was to he given upon the 68 acres of land, making $7,000 vendor’s lien note executed by appellee to appellant upon the 68 acres of land, and that said $1,000 taken care of by said appellant was paid by the appellee adding $1,000 to the original amount of the note . that he had agreed to give, this is, he gave a $7,000 note instead of $6,000. Appellee further alleges in his supplemental petition that, if appellant was ready and willing to put said land under irrigation, as alleged in his amended answer, appellee would accept same and deduct from the damages sought any sum claimed by reason of failure of said land to irrigate. This supplemental answer was filed on January 20, 1027, and nothing further was done toward putting said land under irrigation, but appellant testified that he was still ready and willing to put it under, although the case was not tried until March 21, 1027, and nothing had been done toward putting said land under irrigation during the 60 days’ time after the appellee had agreed to accept the land if put under irrigation.

The court overruled all exceptions, special and general. Thereupon the case was submitted to the jury on special issues. The jury found the 14.28 acres to which title failed to be of the value of $300 an acre. It found the 53 acres without irrigation was of the value of $100 an acre. It found that appellant represented said 68 acres was irrigated. It found appellant priced the 68 acres at $250 an acre when the exchange was made. It found appellee’s 240 acres was of the value of $65 an acre. It found against ap-pellee on claim for crop damage. Upon these findings the court entered judgment for $300 an acre on the 14.28 acres to which title had failed, and judgment for the difference between the 240 acres at $65 an acre and 53 acres at $100 an acre. The $7,000 of notes appellee owed appellant were canceled and appellee given a deficiency judgment for the balance. E*rom that judgment appellant appeals.

Appellant has made no proposition nor statement on assignments 1, 2, 3, 4, 5, 6, 7, 8, 12, and they will be treated as waived. Rules 29, 30, and 31.

Appellant’s first proposition of law presents his contention that his general demurrer should have been sustained to the entire petition. We do not think so. No proper assignment of his complaint that the court committed error in overruling it is set out in his brief, nor is there any reference in this proposition directing our attention to any such assignment.

The petition, among other things, shows that all of said items of debt and damages grew out of the transaction wherein plaintiff had sold or traded to the defendant 240 acres of land in said state of Oklahoma, in which land plaintiff claimed to have an equity of $10,000 after the payment of mortgages in the sum of $7,000, and defendant sold or traded to the plaintiff 68 acres of land in Cameron county, Tex., at the stated and agreed price of $250 per acre upon the representations by the defendant that all of said 68 acres of land was irrigable land and within the territorial limits of Cameron County water improvement district No. 2, and was entitled to irrigation by reason thereof, and in which petition it was alleged that the 15' acres of land to which title failed was in cultivation and all of the land that was on said premises that was in cultivation, and was of greater value than the balance of said land by reason that the same was resaca land and was in a high state of cultivation and was of the reasonable value of $300 per acre. The proposition is one that shows the particular ground of objection to be one that should have been presented by special exception if there was any merit in it at all. The petition is not subject to a general demurrer.

Appellant’s second proposition under his assignments 12, 14, 15, and 16, which challenge the right of appellee to recover damage the difference between land with and without irrigation, or the difference between $250 an acre and $100 an acre on the 53 acres, or to prove and recover judgment on the difference between the value of the land he exchanged and the value of the 53 acres, is overruled. This proposition is not germane to any issue.of fact in the case, but raises a question of law that was overruled when appellant’s general demurrer was disposed of. It is raised and discussed on the alleged error of the court in overruling the general demurrer, and all such kindred propositions are overruled.

If the petition shows a good cause of action against a general demurrer, even though the cause of action was based upon an erroneous theory, it must be overruled.

N. W. National Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185, holds that:

“A defective statement of a cause of action, if amendable, is good against a general demurrer.” ,

In the case of S. W. Portland Cement Co. v. Latta & Sapper (Tex. Civ. App.) 193 S. W. 1115, the court used this language:

“If a petition to which general demurrer was . filed stated a cause of action in any particular, the demurrer was properly overruled.” Earle v. Earle (Tex. Civ. App.) 268 S. W. 232: “Gen- , eral demurrer to a petition is properly overruled, where parts of petition state a cause of action.”

In the case of Swartz v. Park (Tex. Civ. App.) 159 S. W. 338, the court used this language : “A petition, which alleged the plaintiff’s damage to be the full compensation allowed by a contract for lots sold by others, is not subject to general demurrer, since it is not necessary to plead the measure of damages.”

It is held in the case of Thompson v. Mills, 45 Tex. Civ. App. 642, 101 S. W. 560, that a petition showing a good cause of action will be held good against a general demurrer, though it discloses that the action was brought on the wrong theory. In the cases of Millard v. Nacogdoches County (Tex. Civ. App.) 170 S. W. 828, and S. W. Portland Cement Co. v. Latta & Happer (Tex. Civ. App.) 193 S. W. 1115, the courts announce the following doctrine:

“On a general demurrer to a petition all reasonable intendments must be resolved in favor of the pleading.”

The court held in the case of Celli v. Sanderson (Tex. Civ. App.) 207 S. W. 179:

“Pleadings not objected to below, except by interposition of general demurrer, on appeal will be given most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor, a rule particularly applicable to a bill in equity.”

In the case of Posey v. Hanson (Tex. Civ. App.) 196 S. W. 731, the court states:

“If a petition to rescind a sale of real estate and cancel deeds and recover compensation for personal services was defective in other respects, but stated a cause of action for the personal services, a general demurrer should have been overruled.”

In the case of Sovereign Camp, Woodmen of the World, v. Piper (Tex. Civ. App.) 222 S. W. 649, it was held:

“A general demurrer admits the facts pleaded to be true, but denies that they constitute a cause of action or ground of defense, and, if enough is stated to enable the court to see that a good cause of action exists, however defectively, the insufficiency or defectiveness of the averment cannot be taken advantage of by a general demurrer."

■ It was held in the case of Chapman v. Mooney (Tex. Civ. App.) 257 S. W. 1106:

“Every reasonable intendment should be read into the petition, when assailed by general demurrer, and any lack of formal averment reached by special exception.”

It was held in City of Austin v. Schlegel (Tex. Com. App.) 257 S. W. 238:

“District and county court rule 17, requiring that in passing upon a general demurrer every reasonable intendment arising from the pleading excepted to shall be indulged in favor of its sufficiency, will be followed by the appellate courts.”

In Stovall v. Texas Co. (Tex. Civ. App.) 262 S. W. 152, the court states:

“Where a pleading is tested by a general de-, murrer, every reasonable intendment from the allegations, taken as a whole, will be indulged.”

In the case of Cochran v. People’s National Bank (Tex. Civ. App.) 271 S. W. 433, the court has used practically the same language, as follows:

“Every reasonable intendment arising on pleading excepted to is indulged, as against a general demurrer, in favor of its sufficiency.”

The petition states at very great length and in very minute and lengthy detail all the facts connected with the transaction and growing out of the contract of sale and the exchange of property.

Of course, as stated in Western Union Co. v. Steele (Tex. Civ. App.) 110 S. W. 546, where a petition claims an improper measure of damages a demurrer should be sustained, but no general demurrer will be sustained where there is otherwise stated a good cause of action. In such a case the defect must be pointed out by special exception.

The question of defect in the petition could not be raised by objecting to the testimony on the particular point for the first time on the trial and by moving the court to strike it out. The testimony was admissible under the general allegations of the petition whether erroneously stated or not.

For reasons already stated, we overrule appellant’s second proposition, under assignments 12, 14, 15, and 16, raising the question that appellee could not recover damages for the difference between the land with and without irrigation or the difference between $250 an acre and $100 an acre on the 53 acres, or on the difference between the land he exchanged and the value of the 53 acres. It will be permitted to stand if a good cause of action is otherwise stated. To the same effect is his first proposition of law under his general demurrer.

This is indirectly calling in question the same defect alleged in the pleading which was raised by general demurrer already passed upon, so those propositions are overruled as without merit.

His third proposition under his ninth, tenth, eleventh, and thirteenth assignments of error is to the effect, when a witness testifies he knows the market value of land and states it, but says on cross-examination th'at he does not know of a single sale of land in the locality, or the value of crops grown on the land the previous year, the testimony should be stricken out on objection. No legal ground for such position or authority supporting such contention is stated. The substance of the testimony is that they know the market value of land and that market value is from $70 and $75 per acre, and on cross-examination, one or more of said witnesses testified that he does not now recall any particular sales in that particular locality during the year on or about the time the transaction between plaintiff and defendant, and one or more of said witnesses testified that lie does not recall more than one sale in that locality within the past year, and said testimony does not disclose whether or not a number of sales were made previous to that year, nor that there has been any change in the market value of said property within the last year. German-American Insurance Co. v. Paul, 2 Ind. T. 625, 53 S. W. 442; Union Elevator Co. v. Kansas City Suburb Belt Ry. Co., 135 Mo. 353, 36 S. W. 1071; Schrodt v. City of St. Joseph, 100 Mo. App. 627, 83 S. W. 543; M., K. & T. Ry. Co. v. Murray (Tex. Civ. App.) 150 S. W. 217; Callen v. Collins (Tex. Civ. App.) 154 S. W. 673; Porter v. Langley (Tex. Civ. App.) 155 S. W. 1042.

The objection is not maintainable; it is a matter for the jury to pass on as to the weight or value of the testimony as well as the credibility of the witness.

Appellant concedes that the assignments which challenge the damage as the difference between the Cameron county land with and without irrigation are based upon the pleadings and ruling of the court. The entire basis of appellant’s objections, many times urged, have been raised only by general demurrer and disposed of for the reasons heretofore given.

The jury answered to the special issues submitted by the court;

“Eirst. That the value of the 14.28 acres of land to which title failed was $300 per acre.
“Second. That at the time of the trade Parker and Rankin valued the 68 acres at $250 per acre.
“Third. That Rankin represented that the land was irrigable land.
“Fourth. That the value of the land to which title did not fail wás $5,342.
“Fifth. That the market value of the 240 acres in Greer county, Okl., was $65 per acre, or $15,600.”

There is nothing in the record, as presented to this court, impeaching or attacking the answer of the jury to these special issues. There is not an assignment presented to this court under which the action of the jury could be reviewed. Scott v. Farmers’ & Merchants’ Nat. Bank (Tex. Civ. App.) 66 S. W. 485; Smith v. Hessey, 63 Tex. civ. App. 478, 134 S. W. 256; Essex v. Mitchell (Tex. Civ. App.) 183 S. W. 399; Houston E. & W. T. Ry. v. Hooper (Tex. Civ. App.) 184 S. W. 347; Texas & N. O. R. Co. v. Weems (Tex. Civ. App.) 184 S. W. 1103; Blackwell v. Vaughn (Tex. Civ. App.) 176 S. W. 912; West Texas Supply Co. v. Dunivan (Tex. Civ. App.) 182 S. W. 425; First Texas State Insurance Co. v. Burwick (Tex. Civ. App.) 193 S. W. 165; Messimer v. Echols (Tex. Civ. App.) 194 S. W. 1171; Richmond v. Hog Creek Oil Co. (Tex. Civ. App.) 229 S. W. 563; International & G. N. R. Ry. Co. v. Biles & Ruby, 56 Tex. Civ. App. 193, 120 S. W. 952; Arlington Heights Sanitarium v. Deaderick (Tex. Civ. App.) 272 S. W. 497; M., K. & T. R. Co. v. Blachley, 50 Tex. Civ. App. 141, 109 S. W. 995; Texas & Pacific Ry. Co. v. Jowers (Tex. Civ. App.) 110 S. W. 946; Davidson v. Jones et al. (Tex. Civ. App.) 196 S. W. 571; Martinez v. Gutierrez Heirs (Tex. Civ. App.) .172 S. W. 766; Bomar V. Powers (Tex. Civ. App.) 50 S. W. 142; St. Louis & S. F. Ry. Co. v. Finley (Tex. Civ. App.) 163 S. W. 104.

In entering judgment on the findings of the jury and other testimony adjusting the accounts and differences between the parties, the court recited:

“It is the further opinion of the court that the other items of accounts set forth by plaintiff and defendant in their petition and answers should not be adjusted, as there was not sufficient ' testimony upon either of said items to permit them to be submitted to the jury.
“It is therefore the opinion of the court that the plaintiff, W. L. Parker, should have and recover of and from the defendant, A. E. Rankin, judgment for the sum of $9,665.25 after adjusting the accounts between said plaintiff and defendant, and that upon said judgment of $9,-665.25 said defendant should have a credit of said note of $7,000, leaviiíg a balance on said judgment against the defendant, after all credits, including said $7,000 note, of $2,665.24.
“It is therefore ordered, adjudged, and decreed by the court that the $7,000 note executed by W. L. Parker on the 1st day of December, 1925, to the said A. E. Rankin, as a part of consideration for the following described land, situated in Cameron county, Tex. [description omitted here], containing 67.7 acres, more or less, be and the said note is hereby canceled, discharged, set aside, and held for naught, and the said defendant given credit upon the judgment of $9,665.25, which the court finds the plaintiff entitled to herein; and it is further ordered, adjudged, and decreed by the court that, in addition to the cancellation and satisfaction of said $7,000 note, the plaintiff have and recover of and from the defendant, A. E. Rankin, an additional judgment of $2,665.25 and the costs of this suit, for all of which let execution issue in due time.
“It is further ordered, adjudged and decreed by the court that the title of the said W. L. Parker to the above described tract of land, less 14.28 acres [described, but not copied herein] more or less, be and the said title of the said W. L. Parker to said remaining 53.42 acres of land is hereby quieted in the said W. L. PaT-ker in so far as the same is affected by said $7,000 note executed by the said W. L. Parker and delivered to the said A. E. Rankin on the 1st day of December, 1925, and said land is fully released and discharged from any lien claimed or right of said defendant or any one claiming, attempting to claim by, through or under him, by reason of said $7,000 vendor’s lien notes.”

There is no alleged error assigned as to the ruling of the court and none to the findings of the jury that shows error that was reasonably calculated to cause or did probably cause the rendition of an improper judgment.

The answers of the jury are in response to the evidence, and no assignment in the brief seeks to set aside their answers to the special issues, which answers are conclusive on the parties, hence there has been no error of law committed by the court that should require a reversal, and, as the assignments point out no error of law committed that should require a reversal, they are severally overruled and the judgment is affirmed.
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