author: COBBS, J.

text:
    HARRISON BLDG. CO. v. B. F. DITTMAR CO.
    (No. 7976.)
    Court of Civil Appeals of Texas. San Antonio.
    April 4, 1928.
    1. Brokers @=>54 — Broker procuring person ready, able, and willing to make loan on terms specified held entitled to commission.
    Where broker, employed under written agreement to procure loan for defendant on certain terms and security for specified commission, secured lender ready, able, and willing to make the loan on the terms specified, and promptly notified defendant- thereof, contract was complete and binding on defendant and commission was earned, though, because of defendant’s act in procuring loan elsewhere, transaction was never consummated.
    2. Brokers @=>40 — Application reciting that defendant would pay specified brokerage for procuring loan held unambiguous.
    Application for loan through plaintiff broker, reciting that brokerage of 5 per cent, should be payable “2½% cash and 2½% 13 months after date,” held unambiguous, and merely meant that when broker procured the loan through any source applicant would pay him the stipulated brokerage.
    3. Contracts 162 — Inconsistencies and conflicts in contracts must be construed together to give effect to intention of parties as collected from whole contract and surrounding circumstances.
    Inconsistencies and conflicts in contracts must he construed together so as to give effect to the intention of the parties as collected from the whole contract, and all the surrounding circumstances will be considered for the purpose of ascertaining the real intention of the parties.
    Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.
    Action by B. F. Dittmar Company against the Harrison Building Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    R. M. Bounds, of McAllen, for appellant.
    Strickland & Ewers and J. Q. Henry, all of Mission, for appellee.
   COBBS, J.

This suit was brought by ap-pellee against Harrison Building Company for certain commissions and brokerage. _ The basis of this suit is predicated upon the following contract:

“Date: May 12th, 1927.
“We hereby make 'application to B. F. Ditt-mar Co. (Inc.) of San Antonio, Texas, for a loan of $35,000.00 for the term of 7 years, payable in gold coin of the United States of America, with interest at 7 per centum per annum, payable semiannually, and to be secured by a first mortgage (or trust deed) on the property hereinafter described, and to be payable as follows, to wit: 5% semiannually, balance at end of 7th year — and warrant the following statements and answers to questions to be true and correct.”

Here follows a great amount of description and details, all of which are unimportant for a construction of the contract, and the contract concludes as follows:

“I havé no homestead exemption. ,
“Who will indorse the note? J. G. Harrison.
“Worth of indorser: $-.
“Will you furnish abstract of guaranty title? Abstract.
“Will you stand expense of drawing up papers, examination of title, etc.? Yes.
“What brokerage will you pay? 5 per cent, or $ — ——.
“Said brokerage payable 2½ per cent, cash and 2½ per cent. 13 months after date.
“Name: Harrison Building Company, “By J. G. Harrison, Pres.
“Address: McAllen, Texas.
“Accepted May 15, 1927.
“B. F. Dittmar Co.,
“By Elmer A. Dittmar, Pres.”

The cause was submitted to the jury on two special issues:

“Question No. 1. Do you find and believe from a preponderance of the evidence in this cause, that after the defendant applied to plaintiff, in its written application, dated May 12, 1927, and introduced in evidence before you, the plaintiff, in good faith, with due diligence and within a reasonable time, procured for said defendant, Harrison Building Company, a loan, or some person who offered and was able and willing to make a loan, to said defendant, in the sum of $35,000, in accordance with the terms set forth in said application in evidence before you? You will answer this question ‘yes’ or ‘no’ as you may find and believe from the evidence. Answer: Yes.
“If you have answered the foregoing question in the affirmative, then you will answer the following question, but if you have answered the same in the negative, then you need not an- . swer the following question:
“Question No. 2. Did the plaintiff,' after it secured said loan or procure a person who was ready, able, and willing to make said loan, if you find plaintiff did so do, use due diligence in notifying defendant of such fact? You will answer this question ‘yes’ or ‘no’ as you may find and believe from the evidence. Answer: Yes.”

The testimony showed that the loan was to be made directly to the Harrison Building Company paying out its money on the same and to be thereafter transferred to the Lincoln National Life Insurance Company.

The evidence shows that the money was secured by appellee for appellant from the Lincoln National Life Insurance Company, who approved the said loan agreement, and appellant was promptly notified that the lender was ready, willing, and able to deliver the money as soon as appellant would deliver an abstract of title for examination. The application, though in writing, was not a contract alone relied on, but when this application was approved by Lincoln National Life Insurance Company and Harrison Building Company was notified of such approval and acceptance, then the contract was complete and B. F. Dittmar Company had performed all the services for Harrison Building Company, as agreed upon; that is, it had brought together and procured some one ready, willing, and able to make the loan on the terms and conditions set-out in the application of Harrison Building Company.

The contract seems clear enough that the application was made to B. F. Dittmar Company and no one else to secure the loan, with a stipulation for the payment of “2⅛ per cent, cash and 2½ per cent. 13 months after date.” This is not ambiguous; it simply means to tell B. F. Dittmar Company, when you procure the loan (through any source), we will pay you the brokerage stipulated. There is no other construction that can be logically placed on it. The evidence supports this construction and the jury have so found.

Here an executory- contract was created, mutually binding on the parties and enforceable against. each other. Appellant could sue to enforce the 'loan had he not breached the contract, and in the same way appellee could sue to enforce the contract and recover the brokerage or commission stipulated.

Upon the facts submitted the contract represents one where the well-known principle of the law applicable to real estate brokers applies. For upon the finding of the jury, supported by all the evidence, B. F. Dittmar Company procured the Lincoln National Life Insurance Company to make the loan upon the terms and conditions set out in the application of Harrison Building Company. Appellant was promptly notified that the Insurance Company had accepted the loan and that it was willing and able to carry it out, and that the money was available for that purpose.

Appellee went to trouble and expense in securing the loan, making various efforts to conclude it. Appellant did not comply with his part of the agreement at all. He delayed, for instance, in furnishing the abstract of title agreed upon, though frequently so urged until after much time had been used in these negotiations. Along about the 15th of June—

“We spoke to the Doctor and told him that we were- ready to go ahead and put the loan through, and .we wanted to know if he didn’t have the abstract ready; that it had been running a Jong time and that we were anxious to go ahead; and the Doctor said; Well, you fellows just forget that; I have decided I won’t need that money: lend it to some one else, and if I need it I will call on you later for it.’ And Mr. Dittmar told him that the application was of long standing and asked him if anything was wrong with it, and he said: ‘You fellows are charging me too much money.’ And Mr. Ditt-mar asked if he had been negotiating with anybody else; he said, ‘Yes, I will tell you frankly I have made application with another concern and am going to get the money from them.’ ”

At that time the appellant had begun negotiations with the Central Trust & Loan Company and had closed the deal, giving the same securities that were to be given appellee, that is, a deed of trust on the land, and thereby not only breached the contract but placed it beyond their own power to perform. The Harrison Company could not thus avoid its liability for the payment of said brokerage or commission by refusing or neglecting to accept the loan when so tendered. But for the breach by appellant the contract would have been carried out and the money loaned. The failure of consummation under such conditions could not be of any detriment to appellee’s recovery of the damages, or, more plainly speaking, the brokerage commission resulting from the breach. Lundell v. Allen (Tex. Civ. App.) 244 S. W. 1098; Bark v. Swartz, 110 Tex. 564, 222 S. W. 156. In the latter case Justice Phillips, speaking for the court, said:

“The loss suffered by the plaintiff is the measure of his damages. That loss is the "amount as fixed by the contract which he would have earned but for the wrongful conduct of the defendants in preventing him from earning it. Upon establishing the contract, his readiness and willingness to perform it, and' that he was denied opportunity to perform it through its wrongful breach by the defendants, rendering its performance by him impossible, the plaintiff made out his case; and prima facie was entitled as damages to the amount which under the contract he would, presumably, have earned if his rights had been respected.”

In Curlee v. Phelps (Tex. Civ. App.) 242 S. W. 517, Justice Huff, speaking for the court, held:

“When the appellee had found a purchaser who was ready and willing to buy upon the terms proposed, he had performed his part of the contract, and the commission was due, although, through the fault of- the appellant, the sale was not consummated.”

When appellant breached his contract and put himself beyond the power to perform, by completing the loan with security on the same property which was intended to stand as sécurity for the Lincoln National Life Insurance Company’s loan, and expressly refused to accept the money tendered, the full amount of the commission became, eo instante, due and payable, for otherwise the Harrison Building Company might prevent the Dittmar Company from ever collecting the remaining 2½ per cent, commission for the services performed. Knisely v. Leathe (Mo. Sup.) 178 S. W. 453. This case, though a Missouri ease, is very much in point. Willson et al. v. Crawford et al., 61 Tex. Civ. App. 580, 130 S. W. 227; Burnett v. Edling, et al., 19 Tex. Civ. App. 711, 48 S. W. 775; Danciger v. Wood et al. (Tex. Civ. App.) 240 S. W. 694.

The trial court did .not therefore err in rendering judgment for the full amount on the evidence, and the assignment is overruled.

It may Be said that the entire contract was not in writing, but partly in parole and partly in writing. There is no stipulation as to the loan being procured from Lincoln Life Insurance Company, but it was understood that B. F. Dittmar might procure it from some one else or that he could advance it, so that it might for the reasons stated come under the rule of a contract construed as a parol contract, partly written and partly in parol. 13 Corpus Juris, 246. But when Dittmar secured the loan from the said insurance company and notified appellant on the 21st and again on the 23d day of May, 1927, the minds of the parties met, and from that time the contract existed. Bogata Merc. Co. v. Outcault Adv. Co. (Tex. Civ. App.) 184 S. W. 333.

B. F. Dittmar Company was by Harrison Building Company expressly appointed to secure a loan, and it was to be paid the commissions named for the services to be performed. The application, in bold type, at tlie bead stated: “Application for Loan Through B. IT. Dittmar Company, Inc.” Dr. Harrison, the president of .the company, was introduced to the loan representative of the said Lincoln Insurance Company on May 12, and advised of his purpose in seeing him, and Dr. Harrison was advised that Dittmar Company was making this loan through the said insurance company, and that Dittmar Company would handle all the details connected with it, securing abstract of title, etc. and pass the loan to the insurance company. This was thoroughly consistent with its duty in securing the loan for appellant and closing same and was well known to both parties. Bass v. Tolbert, 51 Tex. Civ. App. 437, 112 S. W. 1077; Gilliland et al. v. Ellison et al. (Tex. Civ. App.) 137 S. W. 168; Burk v. Estes (Tex. Civ. App.) 236 S. W. 514.

'It is the settled law that inconsistencies and conflicts in contracts must be construed together so as to give effect to the intention of the parties as collected from the whole contract, and likewise all the surrounding circumstances will be considered for the purpose of ascertaining the real intention of the parties to such contract. Corbin v. Booker (Tex. Civ. App.) 184 S. W. 696; Thompson v. Waits (Tex. Civ. App.) 159 S. W. 82; Stone v. Robinson (Tex. Civ. App.) 189 S.W. 135.

However, we do not think there are any inconsistencies in the contract that create any doubt as to its meaning and purpose, and we overrule the contention. .

We have considered each and every proposition claiming error, and, finding none that should cause a reversal, they are each severally overruled, and the judgment of the trial court is affirmed.
      ®s»For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    WICHITA HOME INS. CO. v. MONTGOMERY.
    (No. 2891.)

    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1927.
    Rehearing Denied Dec. 14, 1927. Petition for Writ of Error Refused April 11, 1928.
    I. Insurance <§=825 (2) — Whether notice of assessment was mailed to assured held for jury.
    Whether any notice of assessment, levied by directors of mutual insurance association on death of member in assured’s class, was mailed to assured as required by life insurance policy, 7ieid for jury on conflicting evidence in action on policy.
    Insurance <§=>817(2) — Insurer asserting for-, feiture of policy for nonpayment of assessment must show due levy and notice thereof., 2.
    It was incumbent on mutual insurance association, asserting forfeiture of life policy for' nonpayment of assessment, to show that such assessment was duly levied by directors and notice thereof given assured as prescribed by policy.
    3. Insurance <S=8I7(2), 819(2) — Notice of assessment may he proved by custom of insurer’s mailing official, but must be shown to have been properly stamped and received by . postal authorities.
    Required notice of assessment to assured may be proved by evidence of custom of official mailing notices, though he had no independent recollection of particular notice, but inference so arising may be refuted, and it must be shown that notice was properly stamped and reached postal authorities.
    4. Insurance <§=>825(2) — Insurer’s custom to notify policy holders before forfeiting policy for nonpayment of dues and assured’s knowledge thereof held for jury.
    In action against mutual insurance association on life policy, evidence 7teM sufficient to take to jury issue of defendant’s custom to notify policy holders 15 days before forfeiture of policy for nonpayment of dues and assured’s knowledge of such custom.
    5. Insurance <§=755 (4) — Insurer held estop-ped by custom and agent’s statements as to notice of forfeiture and period covered by dues paid to defeat recovery on life pojicy for nonpayment of dues.
    Where plaintiff, in action on'life insurance policy, properly pleaded estoppel against defendant by custom and statements of its representa- ■ tives when application was made and policy issued, and jury found on testimony not attacked as insufficient that it was defendant’s custom to notify policy holders 15 days before forfeiture of policy for nonpayment of dues, and that defendant’s agents represented to assured that payment made when policy was issued covered all dues until certain date after assured’s death, defendant was estopped to defeat recovery for failure to pay semiannual dues six months prior to such date.
    6. Insurance <§=>755(4) — Insurer or authorized • > agent, by customary dealings inducing belief that punctual payment of premiums will not be insisted on, waives forfeiture.
    Insurance company or its authorized agent, inducing honest, reasonably founded belief in policy holder’s mind that strict compliance with stipulation for punctual payment of premiums will not be insisted on, by habits of business, declarations, customs, or other course of conduct, will be deemed to have waived right to claim, or estopped itself to enforce, forfeiture for nonpayment of premiums as stipulated, though policy also provides that agents cannot waive forfeiture.
    7. Estoppel <§=>52 — Principle of equitable es-toppel gives effect and imeaning to parties, actions which common sense and justice dictate.
    . Principle of estoppel in equity considers and weighs conduct of men in their dealings with each other and gives that effect and meaning to their actions which common sense and justice dictate.
    8. Insurance <®=»755(l) — Fraternal insurance association is subject to principles of equitable estoppel.
    A fraternal insurance association is as much subject to operation of principles of equitable estoppel as any other, association or individual.
    9. Insurance <S=o755(2) — Insurer held bound by soliciting agents’ statements as to custom of notifying assured before forfeiture for nonpayment of dues and time covered by dues paid.
    Insurance company, whose manager testified that company had agency force, working exclusively for it and authorized to take policies and applications, and that he knew agents who secured assured’s application and issued policy to him, as such agents testified without objection, held bound by their statements and declarations to assured as to insurer’s custom of notifying policy holders 15 days before forfeiting policy for nonpayment of dues and time covered by dues paid when policy was issued.
    10. New trial <®=nl24(l), 150(4) — Affidavits of insurance company’s agents and president held not to warrant new trial of action on policy, where motion was not verified, nor any affidavit as to why testimony was not discovered before trial presented.
    Affidavit of agent, participating in securing .application for and issuing life insurance policy, and of insurer’s president, that they would have given testimony contradicting that of plaintiff and insured’s brother held not to warrant new trial for newly discovered evidence, where motion therefor was not verified, nor any affidavit showing why such testimony was not discovered before trial presented.
    11. Appeal and error <©= 1050(1) — Insurance <®=s>8!8(3) — Admission of testimony of assured’s brother that he would have paid assessments had he known of them held not reversible error, in absence of showing that 'assured would not have paid them if notified.
    In action on life insurance policy, admission of testimony of assured’s brother, who lived and had joint bank account and kind of partnership with assured, that he never received any notices of assessments without responding thereto and would have paid any assessment-due on policy had he known of them, held not reversible error, in absence of showing that assured intended to permit policy to lapse or was unable or unwilling to pay assessments had he received notice thereof.
    Appeal from District Court, Wichita County; W. W. Cook, Judge.
    Action by Laura Belle Montgomery against the Wichita Home Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Davenport & Crain, of Wichita Falls, for appellant.
    Weeks, Morrow, Francis & Hankerson and Neal Powers, all of Wichita Falls, for ap-pellee.

      Writ of error dismissed.

   JACKSON, J.

This suit was instituted by the appellee Laura Belle Montgomery, a widow, in the Seventy-Eighth district court of Wichita county, Tex., against the appellant, the Wichita Home Insurance Company, a local, mutual aid association.

Appellee alleges that on the 10th day of March, 1925, for a valuable consideration, the appellant issued to John Lewis Montgomery a policy of insurance upon his life, the provisions of which were substantially as follows : That the appellant would pay to the order of Laura Belle Montgomery, the mother of assured and beneficiary in said policy, the sum of $1 for each member in good standing of said mutual aid association, at the time of the death of the assured, if he should be in good standing at such time, but said amount was not to exceed $1,000; that the assured, John Lewis Montgomery, should pay, within 15 days of the date ot the call therefor, the assessments of $1.10 levied by the directors of the appellant, upon the death of any member in “class D,” to which class the assured was assigned, and also pay $3 per year to appellant as annual dues; that appellant should mail a written or printed notice properly stamped, addressed, and mailed, to the assured at his last address, of each assessment, as made, and that said certificate or policy of insurance should be subject to all of the laws of the company or orders of the board of directors in force at the time of the issuance of the certificate of insurance or that might thereafter be enacted.

Appellee further alleges that John Lewis Montgomery died on or about the 6th day of July, 1925, and at the time of his death he had in all things complied with the provisions and terms of the policy of insurance; that there were more than 1,000 members in the class to which the assured belonged at the time of his death, and appellant was bound and obligated to pay the appellee the sum of $1,000, for which demand had been made, more than 30 days prior to the filing of the suit, but which sum, or any part thereof, the appellant had failed and refused to pay.

The appellant answered by general demurrer, special exceptions, and general denial; admitted the execution and delivery of the policy to John Lewis Montgomery, in which it promised to pay to the order of Laura Belle Montgomery, the appellee, $1 for each member in good standing at the time of the death of the assured, said amount not to exceed $1,000, bn the condition that the assured was in good standing at the time of his death; that the assured was not in good standing at the time of his death, as he had failed to pay assessment No. 13 within the 15 days allowed for the payment thereof and had failed to pay the assessment of $1.50 for semiannual dues, as provided by the Constitution and bylaws of the association, as a membership fee; that, by virtue of his failure to pay assessment No. 13, and his membership dues, he was not in good standing at the time of his death, and the company was not liable on said certificate or policy of insurance.'

By supplemental petition, in reply to appellant’s answer, the appellee pleaded general demurrer and general denial and alleged that assessment No. 13 was not a legal assessment; that no notice of such assessment had been given to the assured or to the appellee, and .that no attempt was made by the appellant to notify either appellee or the assured that such assessment had been made; that, prior to and at the time of the issuance of the policy, both appellee and the assured were informed by the agents of appellant that the •$3 annual dues charged as a membership fee was payable on December 1st of each year; that appellee and assured were also informed that the initial fee which was paid at the time of the issuance of the policy paid all membership fees and annual dues accrued or to accrue up to December 1, 1925; that' they were also informed that notice of all payments for annual dues and for assessments arising on the death of a member would be given by mail 15 days prior to the last date on which such payments could be made; that appellee and assured were both familiar with the custom of appellant to send out such notices, and that they relied upon such custom and upon the promises made to them that such notices would be sent out by appellant; that, if such statements were not true, such representations were made by the agents of appellant with the fraudulent intent of defeating the rights of the assured and appellee under the policy; that such representations were relied upon, and the appellant has thereby estopped itself from urging as a defense that the annual dues or assessment No. 13 had not been paid.

In response to special issues-submitted by the court, the jury found, in effect, that the agents of appellant represented to the -assured that the down payment o'f $10 would cover all dues until December 1, 1925; that the appellant did not, 15 days prior to declaring the policy of assured forfeited, deposit in the United States post office notice properly addressed to the assured, notifying him that assessment No. 13 was due and payable; that, if such notice had been deposited in the post office, properly addressed to assured, such assessment would have been paid prior to the date the policy was declared forfeited.

In response to special issues requested by the appellee and submitted by the court, the jury found in effect that it was the custom of the appellant to notify its policy holders 15 days prior to the forfeiture of a policy of the failure to pay annual dues, and that such dues were due and payable; that the assured knew of this custom; that no such notice was deposited by appellant in the mail, addressed to assured at his last-known address, notifying him that the semiannual dues of $1.50 was due and payable on or before June 1, 1925; that, if such notice had been so mailed, the payment of the semiannual dues of $1.50 would have been made.

On these findings of the jury, judgment was entered in favor of appellee against appellant for the sum of $1,000, with interest thereon at the rate of 6 per cent, per annum from January 1, 1926, and for costs, from which judgment this appeal is prosecuted.

The appellant, in its first and third propositions, urges as error the action of the trial court in refusing its requested peremptory instruction, because the policy sued on provided that in giving notice of an assessment it should not be necessary for the company to do more than mail a written or printed notice, properly stamped and addressed, to the assured at his last-known address, and that failure to pay such assessment within 15 days from the date of the call therefor should forfeit all claims of assured under the policy, and that the testimony disclosed that notice of assessment No. 13 was properly stamped, addressed, and mailed to the assured at his last-known address, and that such assessment was never paid.

The provisions of the policy necessary to a disposition of this appeal are:

“That he or she agrees to pay assessments levied by the directors of this company of $1.10 upon the death of any member within fifteen days of date of call for same, and $3.00 per year for expenses, as needed. $1.50 is to be paid by June 1st and $1.50 by 'December 1st of each year; and agrees further that failure to pay any assessment so levied within fifteen days from date of call, or to pay said yearly dues on or before June 1st and December 1st of each year shall forfeit all claims as a member of the company.”
“That it shall be the duty of each member to keep the secretary of the Wichita Home Insurance Company informed of the post oifice address of such member, and in giving notice of any assessment it shall not be necessary for the Wichita Home Insurance Company to do more than mail a written or printed notice properly stamped and addressed to such member, at his or her last address.”

The record discloses that the appellee, the deceased, and his brother, Alvin Edwin Montgomery, lived on a farm, and that their address was Burkburnett, Tex., and the number of the post office box in which they had their mail delivered was 568, and that each of them received their mail in said box at the post office in Burkburnett, and that this was the address and the number of the post office box given to the appellant by deceased, which had not been changed; that the appellee, the deceased, and his brother lived together and farmed the same place, had a joint bank account, in which they placed their earnings, and upon which they all drew checks for the payment of their obligations; that the appel-lee, the deceased, and his brother each made application to appellant for insurance at tie sime’time and each was issued a policy. The testimony tends to show that neither of the three parties ever received the notice of assessment No. 13.

Mr. Edgar P. Haney, the manager of the appellant company, during the times involved in this controversy, testified in detail that the company installed an addressograph about February, 1925, and that on assessment No. 13 he checked the notices with the young lady operating the machine, and a notice was addressed to the assured, “Burkburnett, Tex., Box 56S; ” that the cards on which notices are sent out are United States post cards and are mailed under the supervision of the cashier in the office; and that he did not handle the mailing of cards personally. The cashier of the company did not testify, nor did any other person testify, that the notice of assessment No. 13 was deposited in the post office to be transmitted to the assured. This testimony, in our' opinion, was sufficient to present an issue of fact for the determination of the jury, as to whether or not any notice had been mailed to the assured.

“Having asserted a forfeiture, it was incumbent upon the association to show it. To do so, it must have shown that assessment No. 23 had been duly levied by its board of directors as prescribed both in the certificate and in the by-laws of said association; that notice thereof had been given, as prescribed, to such member; and that such member had failed to pay the assessment. Of necessity, notice of an assessment made upon the membership by the board of directors must be given the members before they could be held liable thereon, and the method prescribed for giving such notice must be pursued. 32 O. .T. 1218, 1223; Mutual Reserve Fund Life Ass’n v. Hamlin, 139 U. S. 297, 11 S. Ot. 614, 35 L. Ed. 167. And a's stated in 14 R. O. L. 985: ‘Where notice is required in order to establish a forfeiture fornonpayment of premiums, the burden is on the insurer to show that required notice was given. Such notice may be proved by evidence of the custom of the official mailing notice, even if he had no independent recollection of the particular notice though the inference so arising may be refuted; but it must be shown that the notice, if mailed, was properly stamped, and that it found its way into the custody of the postal authorities, and evidence of its nonreceipt may be received for the purpose of showing that it was not mailed.’ ” Winters Mut. Aid Ass’n v. Corum (Tex. Civ. App.) 297 S. W. 240.'

Appellant presents as error the action-of the trial court in submitting to the jury the issue as to the custom of appellant to notify its policyholders 15 days prior to the forfeiture of the policy on their failure to pay their annual dues, because the suit was based on the written policy and it could not be altered or modified by the custom of the company, and because the testimony failed to show any such custom, or that the assured knew of such custom.

Paul E. Parkins, one of the agents of the company to receive applications for and write insurance, and who was present at the time the application of the assured was made to appellant, testified, in effect, that at the time the Montgomerys made application for insurance he was the authorized representative of the association and they were told that they would be notified when any further payments should be or were to be made; that they would be notified 15 days prior to the expiration of the date for the payment of any further sums of money; that, as a matter of fact, that was the custom of the company; that, notwithstanding the policy might have provided for semiannual dues to be paid at a certain time, the company had a custom at that time of notifying the policyholders 15 days before the date of the dues by sending them a card, and when a death in the membership occurred, they gave 15 days’ notice to the policyholders of the assessment for such death. The testimony tends to show that appellee, the deceased, and his brother knew of this custom and relied upon it, and the assurance that they would be notified of any sum due before their policies were forfeited.

In passing upon a stipulation in a policy, which provided that failure to make payment of the monthly dues without notice, on or before the 20th of the month, would ipso facto forfeit the policy, Judge Looney, in the case of Supreme Lodge K. P. v. Hooper, (Tex. Civ. App.) 282 S. W. 867, in which a writ of error was refused, says:

“This provision was inserted in the contract by appellant for its own benefit, and, of course, it was at liberty to waive it, and, in our opinion, did waive it, by this general custom or method of business. The law applicable to these facts is announced in 19 R. O. L. § 74, pp. 1274, 1275, as follows:
“ .‘Where a mutual benefit association has, in repeated instances, received from a member the payment of overdue assessments, so as to establish a custom of dealing between the-parties, and lead the member to believe that a strict observance of a requirement as to the time of payment is not required, it is held that the certificate of insurance is not forfeited by failure to pay an assessment at the time when the bylaws of the society or a stipulation in the certificate requires it to be paid, provided it is paid within the customary period of extension of the time of payment, for the association is estopped by its course- of conduct from claiming a forfeiture according to the strict letter of .its contract. * ⅜ * And it must be shown that the delinquent member had notice of the practice and relied thereon.’ ”

The appellee having properly pleaded estoppel against the appellant by custom and statements made by its representatives at the time application Vas made for the insurance and the policy issued, and' the jury having found that it was the custom of the appellant to notify its policy holders, on the failure to pay annual dues, 15 days prior to the forfeiture of a policy, and that the agents of appellant represented to the assured that the $10 payment made at the time of the issuance of the policy covered all dues until December 1, 1925, neither of which findings is attached for insufficient testimony, appellant is estopped from defeating appellee’s recovery because of his failure to pay the semiannual dues on June 1, 1925.

“If an insurance company or its authorized agent, by its habit of business, or by its acts or declarations, or by a custom to receive overdue premiums without objection, or by a custom not to exact prompt payment of the same, or, in brief, by any course of conduct, has induced an honest belief in the mind of the policy holder, which is reasonably founded, that strict compliance with a stipulation for punctual payment of premiums will not be insisted upon, but that the payment may be delayed without a forfeiture resulting therefrom, it will be deemed to have waived the right to claim the forfeiture, or it will be estopped from enforcing the same, although the policy expressly provides for forfeiture for nonpayment of premiums as stipulated, and even though it is also conditioned that agents cannot waive forfeitures, and even though the policy provides that receiving overdue premiums is merely an act of courtesy.” 3 Joyce on Insurance,' § 1356.

“The principle of estoppel in equity stands upon the very foundations of right and fair dealing. It considers and weighs the conduct of men in their 'dealings with each other, and gives that effect and meaning to their actions which common sense and justice dictate. A fraternal insurance association, such as appellant, is as much subject to the operation of its principles as any other association of persons or as an individual.” Sovereign Camp, Woodmen of the World, v. Putnam (Tex. Civ. App.) 206 S. W. 970; McCorkle et al. v. Texas Benevolent Association, 71 Tex. 149, 8 S. W. 516; Independent Order of Puritans v. Brown (Tex. Civ. App.) 229 S. W. 939.

Appellant assails as error the action of the trial court in refusing to submit, at appellant’s request, the issue as to whether the agents who took the application for insurance had the authority to vary the written terms of the policy by parol statements.

The manager, Mr. Edgar P. Haney, testified that the company had an agency force that worked exclusively for the company and who was authorized to take policies and the applications, and that those agents were trained and gave their exclusive time to representing the company; that he knew the agents Mr. and Mr.s. Parkins, whom the evidence shows secured the application of the deceased and the issuance of a policy to him by the appellant.- •

These agents testified, without objection, that they were employed as agents of the appellant to receive applications and write insurance, and that they secured the application of deceased and the issuance of his certificate of insurance to him by the company.

Under these facts, we think the company was bound by the statements and declarations made by its agents to the deceased. Joyce on Insurance, supra.

Appellant urges as error the action of the trial court in refusing to grant it a new trial because of newly discovered evidence. Attached to the motion for a new trial is the affidavit of J. B. Lowry, one of appellant’s agents, who participated in securing the application of deceased and having policy issued to him, as well as the affidavit of J. W. Boren, the president of the company, which discloses that they would have given testimony contradicting, on certain material issues, the testimony of appellee and her son, Alvin. E. Montgomery. These affidavits do not disclose why the testimony of these witnesses was not offered on the trial or why appellant had failed to discover what their testimony would be. The motion for a new trial is not verified, and no affidavit showing why this testimony was not discovered prior to the trial, and this assignment is overruled. Ruhrup v. Southwest Cigar Co. (Tex. Civ. App.) 293 S. .W. 284, and authorities cited.

Appellant challenges as error the’action of the trial court in permitting the witness Alvin E. Montgomery, over its objection that such testimony was irrelevant, immaterial, and prejudicial, to testify that he had never received any assessment of dues that he had not responded to, and that, if he had known there were any assessments due on the policy held by his deceased brother, or his mother, he would have paid them. The record discloses that this witness, his mother, and deceased' brother lived together, farmed together, had the same post office box and a joint bank account, upon which each checked and out of which their indebtedness was paid; thát they had a kind of a partnership and whatever they had they all had together; that, if he had known there were any assessments due on his policy or his mother’s policy or the policy of his deceased brother, he would have paid them. The certificate of insurance had been issued and accepted and there is nothing in the record to show that deceased intended to permit his policy to lapse,, or that he was unable to pay the dues and assessments thereon, or that he would not have paid them had he received notice thereof, and, under these conditions, it was immaterial to the appellant as to who paid such obligations, and the admission of this testimony, in our opinion, is not reversible error.

The record shows, by agreement of the parties,. that there were more than 1,000 members in good standing at the date of the death of John Lewis Montgomery.

The judgment is affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^?For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HALL, O. J.

text:
    ROCKHOLD et al. v. LUCKY TIGER OIL CO. et al.
    (No. 2919.)

    Court of Civil Appeals of Texas. Amarillo.
    Dec. 7, 1927.
    Rehearing Denied Jan. 4, 1928.
    I. Pleading <3=>251— Amended pleading should Identify pleading which it substitutes by giving date of filing and of original pleading, or be subject to special exception (District and County Court Rules 3-13).
    Under District and County Court Rules 3-13, requiring original pleadings to show respective positions in process of pleading, ahd requiring amendments and supplemental pleadings to show instrument amended or supplemented, amended pleading should identify pleading for which it is a substitute by giving date of its filing and date of original pleading, and failure in this particular renders pleading subject to special exception.
    • 2. Pleading <3=3241 — Trial judge must see that amended pleadings give dates and descriptions of pleadings superseded (District and County Court Rules 3-13).
    It is the duty of the trial judge to see that all amended pleadings give dates and descriptions of pleadings which they supersede, as required by District and County Court Rules 3-13.
    3. Pleading <3=3286 — Trial court should have required parties to replead where transcript included abandoned -pleadings, omitted amendment to pleading, and disregarded rules for preparing transcript (District and County Court Rules 2, 84, 85, 88, 89).
    Where transcript included several abandoned pleadings and omitted greater part of amendment to one pleading, contained no order permitting filing of pleadings or action by court on numerous exceptions to pleadings filed and prepared in disregard of District and County Court rules 84, 85, 88, 89, requiring pleadings to be incorporated in chronological order, clerk to note name and date of proceedings and number of pages of transcript, trial court should have ordered all parties to replead, under Rule 2.
    4. Pleading <3=34 — Plaintiffs’ original answer to defendants’ answer and cross-petition should have been styled “plaintiffs’ first supplemental petition’’ (District and County Court Rule 3).
    Under District and County Court Rule 3, original answer by plaintiffs to first amended original answer and cross-petition of defendants, containing general demurrer, plea of not guilty to cross-action, and general denial, should have been styled “plaintiffs’ first supplemental petition.”
    5. Pleading <3=3251 — Allegations in original petition could not be incorporated by reference in amended pleading, which must be tested by own allegations without reference to abandoned pleadings.
    Allegations in pleading, if considered as an amended original pleading, could not adopt and incorporate by reference any allegations in-original petition; but such allegations should be specifically made in amended pleading, which must be tested by own allegations without reference to abandoned pleadings.
    6. Pleading <3=>4 — Plaintiffs’ first amended original answer to defendants’ cross-action.should, have been styled “plaintiffs’ second supplemental petition” (District and County Court Rule 3).
    Under District and County Court Rule 3, plaintiffs’ first amended original answer to defendants’ cross-action as set up in their first amended original answer and cross-petition, containing general demurrer, plea of not guilty, general denial, and plea of limitations, should have been styled “plaintiffs’ second supplemental petition.”
    7. Pleading <3=3229 — “Amended pleading” is intended to add or withdraw from previous pleading, to perfect deficient pleading (District and County Court.Rules 8, 12).
    Under District and County Court Rules 8 and 12, office of an “amended pleading,” as con-tradistinguished from a “supplemental pleading,” is to add something to or withdraw something from that which has been previously pleaded, so as to perfect that which is or may be deficient, or to correct that which has been incorrectly stated by party, making amendment.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Amended and Supplemental Pleading.]
    8. Pleading <3=3.162 — “Supplemental pleading” is intended to allege new facts in reply to allegations by opposite party (District and County Court Rules 8, 12).
    Under District and County Court Rules 8, 12, office of “supplemental pleading” is to allege new facts not before alleged by pleader, in reply to allegations by opposite party in last preceding pleading filed by opposite party.
    9. Appeal and error <3=714(5) — Appellate court must decide questions submitted from record not challenged or corrected, and should not be required to depend on conflicting statements in briefs and arguments.
    Court of Civil Appeals should not be required to depend on conflicting statements in briefs and oral arguments to determine what issues were in trial court, but must decide questions submitted from record before it when that record has not been properly challenged, amended, or corrected.
    10. Appeal and error <3=3648 — Record containing instruments improperly inserted must be corrected in trial court unless appellate-court can determine error from record.
    If record filed with Court of Civil Appeals contains instruments which should not be properly inserted therein, correction must be made in trial court, unless record itself contains something from which, appellate court can determine such fact; but inaccuracies in the transcript cannot be corrected after the cause has been submitted.
    11. Appeal and error <§==>837(4) — Pleading not stricken in trial court, and permitted to stay until judgment, must be considered, regardless of what it is called1.
    If pleading has not been stricken on exceptions urged in trial court, and is permitted to stay in case until judgment, it must be considered for all that it means, regardless of what it may be called.
    12. Appeal and error <§=>837(4) — Appellate court must determine questions presented in light of issues tendered by pleading shown in transcript, not challenged or amended (Rev. St. 1925, art. 2278; Court of Civil Appeals Rule 22).
    Where defendants in error did not file transcript of their own, as they had right to do under Rev. St. 1925, art. 2278, and transcript filed contained pleadings that should not have been included, but transcript was not challenged or corrected as required by Court of Civil Appeals Rule 22, Court of Civil Appeals must determine questions presented in light of issues tendered by pleading shown in transcript, except for pleadings superseded.
    13. Appeal and error <§=>837.(4) — Amended pleading, making original petition part thereof by reference, not stricken on exception, should be considered on appeal.
    Amended pleading filed by plaintiff, which by reference makes original petition part there- ■ of, should be considered on appeal, where such pleading was not stricken on exception.
    14. Appeal and - error <§=>837(4) — Pleadings filed day of trial, containing matters pleadable by amendment and supplement, not excepted to nor stricken on motion, should be considered on appeal.
    Pleadings filed on day of trial, containing matters properly pleadable by amendment and supplement, should be considered on appeal, where pleadings were not excepted to nor stricken on motion.
    15. Quieting title'<§=>43 — Pleadings in action to quiet title held tó show that plaintiffs claiming under husband presented issue that husband claimed land as separate property.
    In action to quiet title to land claimed by defendants as heirs of' wife entitled to community interest in property, pleadings held to show that plaintiffs tendered issue that husband, under whom plaintiffs claimed, had claimed land as separate property and sold it as separate owner.
    16. Quieting title <§=>43 — Cross-action of trespass to try title held not to eliminate plaintiffs’ plea, in action to quiet title, that husband under whom they, claimed was separate owner.
    In action to quiet title to land claimed by defendants as heirs of wife entitled to community interest in property, and by plaintiffs under husband claimed to have sold property as separate owner, cross-action by defendants of trespass to try title did not eliminate issue whether husband sold property as separate owner, since cross-action did not change attitude of parties at trial.
    17. Quieting title <§=>52 — Judgment for several plaintiffs as to ail land claimed held insufficient for failure to decree to each of plaintiffs several tracts to which they were entitled.
    In action to quiet title to land, in which defendants filed cross-action of trespass to try title and prayed for partition, judgment for plaintiffs as to all land described was insufficient on its face as failing to decree to each of plaintiffs several tracts which leases showed they were entitled to, since judgment must describe each portion to be recovered by several parties litigant.
    18. Appeal and error <§=>171 (3)— Action to quiet title, tried on theory that plaintiffs’ grantor claimed separate ownership, must be tried on same theory on appeal.
    Where action to quiet title was tried in trial court on theory that plaintiffs were entitled to recover as vendees of husband who owned land in own separate right, case must be determined on same.theory in Court of Civil Appeals.
    19. Appeal and error <§=>882(3) — Party must recover in same capacity and on. same cause of action on appeal as urged in trial court.
    Party may not try case on one theory in trial court and recover on inconsistent theory in Court of Civil Appeals, but must recover in capacity and on cause of action urged in trial court. ■»
    20. Judgment <§=244, 250 — Judgment for party in different capacity or on different cause of action than stated in pleadings, though supported by evidence, is improper.
    Judgment rendered for party in different capacity or on different cause of action than stated in pleadings, although supported by evidence, is improper.
    21. Husband and wife <§=>262(1) — Land acquired' by husband after marriage, under deed not reciting that property was his separate property, is presumptively community property.
    Where husband acquired land after marriage by deed which contained no recitation showing that it was his separate property, land is presumptively community property, in which heirs of wife would inherit her interest.
    22. Quieting title <§=>47(I) — Directed verdict, quieting title for plaintiffs claiming under husband as separate owner, held error under evidence raising presumption of community prop-' erty.
    In action to quiet title to property claimed by plaintiffs under husband selling land as separate property, and claimed by defendants as heirs of wife having community interest in property, directed verdict for plaintiffs was error, where evidence raised presumption that property purchased by husband after marriage was community property, and no evidence was introduced to .show that husband paid for property out of separate funds but borrowed money during community relation to make final payment on property.
    23. Estoppel <§=3(2) — Plaintiffs seeking to quiet title, repeatedly asserting title under husband as separate owner, could not claim under husband as survivor of community despite defendants’ cross-action of trespass to try title (Rev. St. 1925, arts. 2040, 2041).
    In action under Rev. St. 1925, arts. 2040, 2041, to quiet title to land claimed by defendants as heirs of wife having community interest in property, in which plaintiffs pleaded title resting! on separate estate of husband at time of conveyance, plaintiffs, though considered as defendants in defendants’ cross-action in trespass to try title,'were still confined to title and defenses pleaded by them, especially where plaintiffs repeatedly asserted title under sale by husband as separate owner, and not as survivor of community, precluding their recovery on ground that husband had right to sell for payment of community debts, which issue was not in case.
    24. Quieting title <@=43 — Plaintiffs seeking to quiet title, not pleading bona fide purchase, could not show they were such purchasers by pleading not guilty to defendants’ cross-action in trespass to try title (Rev. St. 1925, art. 7373).
    In action to quiet title to land claimed by plaintiffs under sale by husband as separate owner, and claimed by defendants as heirs of wife having community interest in property, plaintiffs by pleading not guilty to defendants’ cross-action in trespass to try title held not entitled to show that they were bona fide purchasers of land under Rev. St. 1925, art. 7373, where plaintiffs did not plead bona fide purchase.
    25. Pleading <@=380 — Party basing right to recover or defense on good faith must allege good faith before he can prove it.
    Generally, party who bases right to recover or defense on good faith must allege it before ' he will be permitted to prove good faith.
    26. Action <@=36 — Character of action is determined from complaint and is not changed by answer or reply.
    Generally, character or form of action is determinéd from complaint, and is not changed by nature of defendant’s answer Or defense, or by plaintiff’s reply.
    27. Action <@=36 — Action to quiet title, in which defendants filed cross-action of trespass to try title, remained action to quiet title as to plaintiffs.
    Where plaintiffs sued to quiet title, and defendants set up cross-action of trespass to try title, though action as to defendants was partly a suit in trespass to try title, neverthless as to plaintiffs it remained one to quiet title.
    28. Quieting title <@=44(l) — Defendants filing cross-action to plaintiffs’ action to quiet title were not required to prove any fact until plaintiffs made out prima facie case.
    In action to quiet title, in which defendants filed a eross-áction of trespass to try title, defendants were not required to prove any fact until plaintiffs made out prima facie case, under their pleadings, entitling them to judgment.
    29. Appeal and error <§=927(7) — Evidence on issues presented by plaintiffs, for whom verdict was directed, must be considered in light most favorable to defendants.
    Where court directed verdict for plaintiffs, evidence on issues presented by plaintiffs must be considered on appeal in light most favorable to defendants.
    30. Appeal and error' <@=927(7) — Appellate court cannot presume that trial court based peremptory instruction for plaintiffs on any phase of defendants’ case, where plaintiffs failed to make prima facie case.
    Where plaintiffs failed to make out prima facie ease in action to quiet title, Court of Civil Appeals cannot presume that court based peremptory instruction for plaintiffs on any phase of defendants’ case.
    Error from District Court, Moore County; Reese Tatum, Judge.
    Action by the Lucky Tiger Oil Company and others against Rachael J. Rockhold and others, in which defendants filed a cross-action. Judgment for plaintiffs, and'defendants bring error.
    Reversed and remanded.
    K. C. Barkley, of Houston, W. S. Parker, of Amarillo, V. R: McGinnis, of Leon, Iowa, and Cooper & Lumpkin, of Amarillo, for plaintiffs in error.
    Underwood, Johnson, Dooley & Simpson, Madden, Adkins & Pipkin and Yance Huff, all of Amarillo, Tatum & Strong, of Dalhart, Williams & Martin, of Plainview, Koemer, Fahey & Young, of St. Louis, Mo., and Robert D. Hawley, of Ft. Collins, Colo., for defendants in error.

      Writ of error dismissed.

   HALL, O. J.

In their briefs, the parties are unable to agree as to what constitutes a correct statement of the nature and result of this suit. This is due to the fact that there is much confusion in the preparation of the transcript, and the further fact that both parties have utterly disregarded District and County Court Rules 3-13, inclusive, in the preparation of their original pleadings as well as in the amended and supplemental pleadings. • Said rules provide that original pleadings shall be indorsed, so as to show their respective, positions in the process of pleading, and that in filing amendments and supplements to original pleadings, they shall point out the instrument with its date sought to be amended, or the pleading to which the supplement is a reply. An amended pleading should identify the pleading for which it is a substitute, by giving the date of its filing and especially the date of the original pleading, and a failure in this particular renders it subject to a special exception. Ward v. Hinkle (Tex. Civ. App.) 252 S. W. 236; Hinkley v. Brewer (Tex. Civ. App.) 274 S. W. 227; Demetri v. McCoy (Tex. Civ. App.) 145 S. W. 293; and it is the duty of the trial judge to see that all amended pleadings give the dates and descriptions of the pleadings which they supersede. Lewis v. Alexander, 51 Tex. 578.

The failure upon the part of all the parties to observe these rules has resulted in much confusion in briefing the case and has entailed considerable extra labor upon this court in an effort to outline the issues upon which the case was tried and to make a correct statement of the nature and result of the suit. The, original transcript includes several abandoned pleadings and omits the greater part of an amendment to one of them, which has subsequently been brought up by a certiorari to perfect the record.

The transcript shows that this is a case where the trial court should have ordered all parties to replead. District and County Court Rule 2; Perry v. Herbert, 8 Tex. 1; Harrell v. Houston, 66 Tex. 278,17 S. W. 731; Dutton v. Norton, 1 White & W. Civ. Cas. Ct. App. § 360.

The suit was filed Jqne 7, 192,6, by the Lucky Tiger Oil Company against C. H. Brewer (also spelled Breuer) and his wife, Rachael J. Brewer (who was formerly Mrs. Rachael J. Wasson), and numerous other defendants, some of them alleged to be the legal representatives of these defendants, some the unknown heirs of Brewer, being children of his first wife, and others the unknown heirs of Mrs. Rachael J. Brewer by her first husband.

The cause of action, as shown by the original petition, is to remove the cloud from and quiet plaintiff’s title to four sections of land in Moore county, in which plaintiff specially pleads its chain of title. The transcript also contains a pleading filed July 19,1926, by the plaintiff in error Rachael J. Rockhold, a daughter of Mrs. Rachael J. (Wasson) Brewer, joined by numerous other ehildren, grandchildren, and greatgrandchildren of Mrs. Brewer. This is alleged to be their answer to plaintiff’s petition, and by cross-action in form of trespass to try title they sought to recover the said lands and premises from the Lucky Tiger Oil Company, H. C. Poe, Roxana Petroleum Corporation, Union Oil Company, R. M. Davis, and C. H. Brewer. This pleading consists of a general demurrer to the petition, and a plea of not guilty, and as shown by the amended transcript, brought up by a certiorari, the defendants, by cross-action in form of trespass to try title, seek to recover the land, together with $50,000 damages.

On November 23, 1926, plaintiffs in error, Mrs. Rockhold and the other heirs and legal representatives Of Mrs. Rachael J. (Wasson) Brewer, filed “their second amended original answer and cross-action in lieu of their origin' nal answer and first amended answer and cross-action heretofore filed herein.” This reference is the only thing in the transcript-which indicates that a first amended answer and cross-action had been previously filed, and we assume that this pleading was evidently their first amended original answer and cross-action and superseded the original filed by them July 19, 1926. This amendment consists of a general demurrer, a general denial, and special denials of the facts alleged by the defendants in error that they are the owners of all the lands. The allegation is that these defendants are the owners in fee simple of an undivided half interest in the lands described in the petition. They deny that C. H. Brewer acquired the property in his own separate right and as his own separate estate, and assert that it is the community property of said Brewer and his wife, Rachael J. (Wasson) Brewer, and that the one-half interest of Mrs. Brewer, upon her death, vested in these defendants, who are her heirs at law and legal representatives. This is followed by a plea of not guilty. By a separate count, the defendants plead over against the Lucky Tiger Oil Company, H. C. Poe, its president, the Roxana Petroleum Company, the Union Oil Company, R. M. Davis of Swisher county, and C/ H. Brewer of Wayne county, Iowa, in form of trespass to try title for the land involved, and to recover $50,000 damages, and pray for partition of the four sections of land and writ of restitution.

On January 24, 1927, the Lucky Tiger Oil Company, Union Oil Company, and H. C. Poe filed “this our original answer t9 the first amended original answer and cross-petition of the above-named defendants”—Rachael J. Rockhold et al. being the defendants referred to. The Union Oil Company and Poe having allied themselves with the Lucky Tiger Oil Company, the original plaintiff, this pleading should have been styled “plaintiffs’ first supplemental ' petition.” District and County Court Rule 3; Towne’s Texas Pleading (2d , Ed.) 379. This pleading consists of a general demurrer and a plea of not guilty to the cross-action of Mrs. Rockhold et al., a general denial, and by way of reply to the cross-action of the defendants, they adopt “all allegations set out in the original petition filed in this cause against the above-named defendants by the defendant in the cross-petition, the Lucky Tiger Oil Company, being plaintiff in the original suit, and without repeating the allegations contained in the original petition filed by the Lucky Tiger Oil Company, these three defendants in said cross-petition plead the same chain of title set out therein and say that the fee-simple title to the four sections of land described in said original petition . and in the cross-petition of the above-named defendants is vested in the Lucky Tiger Oil Company, and these three defendants adopt said original petition as part of their* answer to the cross-petition of the above-named defendants.” • ' • •

If this pleading isi an amended original-pleading, it could not adopt and incorporate by reference any of tbe allegations in tbe original petition, but sucb allegations should be specifically made in tbe amendment; tbe rule being that an amended pleading must be tested by its own allegations, and that no reference to abandoned pleadings can aid it. City of Aransas Pass v. Usher (Tex. Civ. App.) 191 S. W. 157; American Indemnity Co. v. Burrows Hardware Co. (Tex. Civ. App.) 191 S. W. 574; Poon v. Miller (Tex. Civ. App.) 234 S. W. 573. No exceptions were filed or urged to this pleading on this account. Tbe pleading further alleges that Mrs. Rockhold et al. are not entitled to any interest in tbe four sections of land in controversy, as tbe heirs of Rachael J. (Wasson) Brewer and her first bus-band, for the reason that said land was tbe separate property of C. H. Brewer, who, following tbe death of bis first wife, about the year 1902, in the state of Iowa, married Rachael J. Wasson, now deceased; that at the time Brewer married Mrs. Wasson she was wholly without property of any kind or character; that Brewer had previously acquired a large amount of property situated in the states of Iowa and North and South Dakota, all of which, according to-the laws of Texas, was his separate property at the time he married Rachael J. Wasson in the State of Iowa; that after their marriage, Brewer and his then wife, Rachael J. Wasson Brewer, made a temporary visit to the'Panhandle of Texas, in about the year 1906, and while here the said Brewer, with his own separate means, purchased the four sections of land involved in this suit from J. W. Crudgington, for a total consideration of $7,600, $4,000 of which was paid to Crudgington in cash by Brewer, out of his separate funds, and that the remaining $3,600 was evidenced by Brewer’s assumption of notes against the land in that amount, owing by Crudgington; that in. the month of August or September, 1906, Brewer paid oft said notes out of his own separate property and estate owned by him prior to his marriage to Rachael J. Wasson, and out of the proceeds of a mortgage which he gave to secure a loan in 1906, upon separate property owned by him prior to the time of his marriage, which property was situated in the s'tate of Iowa.

It is further alleged that prior to the date of their marriage, C. H. Brewer and Mrs. Rachael J. Wasson entered into a written contract, in consideration of marriage, which recites that “Whereas, both of. said parties have property and each have children of former marriages, and both parties desire to arrange their property rights before the marriage is entered into,” that in the event said parties are married and of the death of Brewer, then the said Rachael J. Wasson agrees to accept, in lieu of her distributive share of Brewer’s separate property, the sum of $1,000, said sum-to be .in full of her distributive share, alimony, or allowance from his estate “by reason of the marriage relation and the law.” It was further stipulated that should the said Rachael J. Wasson predecease the said Brewer, he should have no greater claim in and to her property than $1,000, which sum he would accept in full of all claims he might have in and to her property “by reason of said marriage relation and the law.” It was further stipulated that in addition to the $1,000, the said Rachael J. Wasson should have the use and control of the house, orchard, and garden, and a reasonable support for one year after the death of said Brewer, at the expiration of which time she would vacate and surrender the possession of the house. It is alleged that this contract was valid, under the laws of Iowa, where the parties lived and where it was executed; that neither of said parties have ever lived in Texas or been domiciled there, and that by virtue of said antenuptial contract, had she outlived the said Brewer, her rights would have been limited to $1,000 and one year’s support, but having predeceased Brewer, all rights in and to his property, whether separate or community, had absolutely lapsed, and that her heirs, the cross-petitioners, by reason of that fact, could claim no interest in any of the separate property of said Brewer, part of which is represented by the land in controversy. This pleading further sets up the Statutes of Limitation of Three and Eive Tears.

It is further alleged that Rachael J. (Was-son) Brewer died in the year 1917 in the state of Iowa-; and under the laws of said state, a certificate of her depth was required to be filed, showing that there were no probate proceedings had with reference to her estate, because she owned no property at the time of her death, which said certificate was filed, and that for nine years the defendants have stood idly by, asserting no claim to any portion of the lands in controversy, but have permitted Brewer and his assignees, these cross-defendants, to continue to use, enjoy, and hold the lands in question in absolute, exclusive, adverse possession and pay taxes thereon, and under title and color of title, by deeds duly recorded, by reason of which the claims of cross^petitioners are barred by laches.

The court appointed an attorney at Dalhart as guardian ad litem for such of the defendants as had been cited by publication and had not appeared, and he answered for them by general demurrer and pleaded the general issue.

On February 2, 1927, the Lucky Tiger Oil Company, Union Oil Company, Roxana Petroleum Corporation. C. H. Brewer, and R. M. Davis filed “their first amended original answer to said cross-action of the said H. F. Wasson et al., as set up in their first amended original answer and cross-petition.” This pleading should have been styled “plaintiffs’ second supplemental petition.” District and County Court Rule 3. Just what previous pleading this instrument amends is not stated. It consists of a general demurrer, plea of not guilty, and a general denial, pleads the Three, Five, and Ten Year Statutes of Limitation (Rev. St. 1925, arts. 5507, 5509, 5510), and contains a plea of stale demand and laches, and prays that the cross-petitioners take nothing by their suit, and that these parties go hence without day, and that they he confirmed in their respective titles now of record.

On February 2d (presumably in the year 1927, because the year is not stated in the file mark), the Lucky Tiger Oil Company, Union Oil Company, Roxana Petroleum Corporation, and R. M. Davis, Jr., filed “their first supplemental answer in reply to the supplemental •cross-petition heretofore filed in this cause by the said H. F. Wasson et al., as cross-petitioners.” This pleading contains no demurrers or exceptions of any kind, but consists of a general denial, and specially pleads that under the laws of the state of Iowa, where Brewer and his wife were domiciled, at the time of their marriage, and where they continued to live until the death of Mrs. Brewer, all property acquired by the husband during marriage or by joint efforts of husband and wife, during the marriage, became, in virtue of the laws of Iowa, the separate property of the husband. It is further alleged that the defendants were not entitled to recover because of the antenuptial contract which is set out in the pleading in haee verba, and according to its legal effect.

On the same day, the defendants, Mrs. Rachael J. Rockhold et al., filed what is styled “first supplemental answer and first supplemental cross-petition of the defendants, in reply to the original answer of H. C. Poe, the Lucky Tiger Oil Company, Union Oil Company, et al.” This pleading contains first a general demurrer followed by special exceptions to the pleas of limitation of three, five, and ten years, and to the plea of laches and stale demand. It also contains special exceptions to the plea setting up the laws of Iowa and the antenuptial contract, asserting that the laws of Texas and not the laws of Iowa govern the rights of the parties. There is also a general denial, a plea of not guilty, and it is specially alleged that the antenuptial agreement is not complete, in itself, and is not sufficient, under the statutes of Iowa, to constitute a valid agreement affecting the title to real property or the dower rights of Mrs. Brewer, and that under the laws and decisions of that state, parol evidence would not be admissible in support of said contract, and that, as pleaded, the contract would-be a nullity under the laws of said state. The pleading also contains a special denial of the allegations that the lands in question constituted Brewer’s separate property and asserts that Mrs. Brewer, at the time of the sales thereof and of the execution of the mortgages affecting the same, was possessed of a valuable dower right therein to the extent of one-third in value of all the legal and equitable estate possessed by her husband in said real property at the time of'their marriage, and that her expectancy and the value of her rights “constituted a contribution to the purchase price of the land herein, if the money received therefrom or any part thereof was paid on the purchase price thereof.”

They further allege that the antenuptial agreement was, under the lav/s of the state of* Iowa, void and without force and effect. In another paragraph, it is alleged that Mrs. Brewer was possessed of an estate when she married O. H. Brewer, consisting of cash and other property, which he used during their married life in payment of community expenses and for the acquisition of property generally; that after their marriage, she worked.upon the farm with him and contributed by her labor, to his accumulations; that she came with him to Texas, where they lived and became domiciled, and that she gave him the companionship and care which a wife should give to her husband, and that under the laws of this state, while Brewer was the active manager of their property, she was, under said laws, entitled to an undivided one-half interest in and to all that was acquired by them in Texas, and that as her heirs, they are entitled to a one-half interest therein; that there was never an administration in Texas upon the estate of Rachael J. Wasson and no necessity for such administration. In reply to the pleas of limitation, they allege;

“That all the possessions claimed and had was, by their cotenants, without knowledge to them of any denial of their ownership or of the ownership of their mother, they not knowing until the filing of this suit, of the acquiring of the said land by their mother, Rachael J. Was-son, and the said O. H. Brewer.”

The office of an amended pleading, as defined by-District and County Court Rule 12, as contradistinguished from a supplemental pleading, is to add something to or withdraw something from that which has been previously pleaded, so as to perfect that which is or may be deficient or to correct that which has been incorrectly stated by the party making the amendment. The office of a supplemental pleading is to allege new facts not before alleged by the pleader, in reply to that which has been alleged by the opposite party in the last preceding pleading filed by such adversary. District and County Court Rule 8.

From the foregoing brief summary of each of the several instruments constituting the pleadings found in the transcript, it will be observed that these rules have been utterly disregarded. The defendants in error insist in their brief that the ease was tried in the court below only upon (1) the original petition filed by the Lucy Tiger Oil Company on June 7, 1926; (2) the second amended original answer and cross-action of the plaintiffs in error filed November 23, 1926;' and (3) the first amended original answer of the defendants in error filed February 2, 1927.

If the court had submitted the issues to the jury, we might have been able to determine, from the issues submitted, what particular pleadings were read to the jury; but we think it is clear that the pleading filed November 23, 1926, has been superseded, and we doubt whether we are authorized to consider the original petition filed June 7, 1926, since an effort was made to amend it by the pleadings filed on January 24, 1927, which, by reference, seeks to adopt the allegations of the original petition.

Defendants in error have not filed a transcript of their own, as they had a right to do, under R. S. 1925, article 2278; Cassin v. Zavalla, 71 Tex. 203, 9 S. W. 105; nor have they sought to strike the abandoned pleading from the transcript which was filed by plaintiffs in error. The transcript contains no order of any kind permitting the filing of pleadings, and shows no action by the court upon any of the numerous exceptions to the various pleadings filed. In the preparation of the transcript, District and County Court Rules 84 and 85, which require that pleadings and other proceedings shall be incorporated into the transcript in chronological order, have been entirely disregarded. Rule 88, requiring the clerk to note on the left hand margin of the page the name and date of each proceeding, and Rule 89, with reference to numbering the pages of the transcript, have also, with few exceptions, been ignored.

The court directed the jury to return a verdict against all defendants in favor of the Ducky Tiger Oil Company, Union Oil Company, Roxana Petroleum Corporation, R. M. Davis, and O. H. Brewer, as to all of the lands described in the petition.

By their joint pleadings, the defendants in error claimed these lands in common; but their evidence shows that each party claimed separate portions of the sections. The only witness who testified was Mrs. Rachael J. Rockhold, for the defendants. All other testimony was documentary. The substance of her testimony is that she was the daughter of Mrs. Rachael J. (Wasson) Brewer; that her mother first married Miles Wasson; that ten children were born to that marriage; that her father died in 1888, and after naming the children and other heirs, she stated that her mother married Brewer in May, 3902, and lived fifteen years after that, dying in' 1917; that after their marriage, her mother and Brewer lived in Texas, in .Amarillo, in the winter of 1906 and 1907, for about six months after the. land in question was purchased; that -the land was purchased in May or April, 1906. After the purchase of the land, they went to Iowa, and in the fall of the year 1906, they came back to Amarillo, and returned, to Iowa in the spring of 1907. There was an agreement entered of record that J. W. Crudgington was the common source of title; that the four sections were state school lands and had been awarded to W. C. Sanders by the Commissioner of the General Land Office July 5, 1922, and that neither of the sections had ever been patented; that there was still due the state of Texas 97½ cents per acre as original purchase money.

This court should not be required to depend upon conflicting statements made in briefs and in' oral arguments to determine what the issues were in the trial court, but it is our duty to decide the questions submitted here, from the record before us, when that record has not been properly challenged, amended, or corrected. West Side Oil Co. v. McDorman (Tex. Civ. App.) 244 S. W. 167; Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165; Sumrall v. Russell (Tex. Civ. App.) 262 S. W. 507; Parnell v. Barron (Tex. Civ. App.) 261 S. W. 529.

If the record filed here contains instruments which should not be properly inserted therein, then unless there is something in the record itself from which we can determine that fact, the correction must be made in the trial court. Eaton v. Klein (Tex. Civ. App.) 174 S. W. 331.

Inaccuracies in the transcript cannot be corrected after the cause has been submitted. Court of Civil Appeals Rule 22; H. & T. O. Ry. Co. v. Parker, 104 Tex. 165, 135 S. W. 369.

If a pleading has not been stricken upon exceptions urged to it in the trial court and is permitted to stay in the case until judgment, it must be considered for all that it means, regardless of what it may be called. Glenn v. Dallas County Bois D’Arc Island Levee District, 114 Tex. 325, 268 S. W. 452.

According to the rules announced. in these and numerous other cases which might be cited, we must proceed to a determination of the questions presented, in the light of the issues tendered by the pleadings shown in the transcript, unless, possibly, it be the original answer filed by the plaintiffs in error on July 19, 1926. It would seem that this pleading was superseded by their pleading filed November 23, 1926. The pleading filed by the Lucky Tiger Oil Company, which, by reference, makes the original petition a part thereof, should also be considered, since it was not stricken upon exception. The three pleadings filed on February 2, 1927, the day of the trial, were not excepted to nor stricken upon motion, and while they contain many matters, properly pleada-ble, both by amendment and supplement, we do not feel authorized to disregard them. When the pleadings are so taken, it is clear that the defendant in error tendered in the trial court the issue that Brewer claimed the land as his separate property and sold it as separate owner. The insistence of defendants in error that, because their adversaries sought, by cross-action, to recover in trespass to try title, this plea'was eliminated, cannot be sustained. The cross-action did not change the attitude of the parties in the trial court, with reference to the property and the titles under which they claim. Defendants in error were still plaintiffs below, and Mrs. Rochhold and the other plaintiffs in error were still defendants, and the case was tried below upon that theory. This is made clear by the fact that the trial court so considered them, as shown by his peremptory charge to the jury to find for plaintiffs, who are defendants in error, and against the defendants, who are plaintiffs in error here. The recital in the judgment confirms us in the view that the case was tried upon that theory in the court below.

Upon its face, the judgment is insufficient in that it fails to decree to each of the defendants in error the several tracts of land which the leases showed they were entitled. This should have been done under the prayer for partition. The judgment is that the defendants in error recover all four sections, and the rule is that a judgment must describe each portion to be recovered by the several parties litigant. Stevenson v. Barrow (Tex. Civ. App.) 265 S. W. 602.

The case having been tried in the court below upon the theory that defendants in error were entitled to recover as the vendees of Brewer, who owned the land in his own separate right, the case must be determined upon the same theory in this court. A party may not try the case upon one theory below and be permitted to recover upon an inconsistent theory in' this court, and the rule is further well settled that he must recover in the capacity and upon the cause of action urged in the court below, and a judgment rendered for him in a different capacity or upon a different cause of action than that stated in his pleadings, although supported by evidence, is improper. Moerlein v. Heyer, 100 Tex. 245, 97 S. W. 1040; Reisenberg v. Hanhins (Tex. Civ. App.) 258 S. W. 904; Griffin v. Shamburger (Tex. Civ. App.) 262 S. W. 144, and authorities .cited; A. L. Wolff & Co. v. M. K. & T. Ry. Co, (Tex. Com. App.) 289 S. W. 1000; Robinson v. Moore, 1 Tex. Civ. App. 98, 20 S. W. 994; McAfee v. Robertson, 43 Tex. 591.

As was said in Chambers v. Rawls (Tex. Civ. App.) 158 S. W. 208:

“Appellee pleaded his ’title specially, and averred that he claimed under the heirs of Salvador Chavira. The premises belonged to the community estate of Salvador and Aniseta and the interest of Aniseta was in her own right, and not as an heir. Deed from Aniseta, however, was offered in evidence. Judgment was rendered in appellee’s favor for an undivided one-half interest, the same being the interest acquired from the children and heirs of Salvador, and it was further ordered that he recover .possession of the entire premises. By cross-assignment appellee contends that he should have recovered the entire title as well as exclusive possession. As we understand the correct rule, the owner of an undivided interest in lands as against a trespasser is entitled to the exclusive possession, and upon recovery of his undivided interest he is entitled to judgment further for such possession. We can conceive of no theory upon which judgment could properly be rendered in his favor for the complete title when, in fact, he is not the owner thereof. * * * Appellee having pleaded his title specially, he was by a well-defined rule confined and restricted to the title pleaded, and in the judgment he was therefore properly limited in his recovery to the one-half interest in the title acquired from the children and heirs, together with exclusive possession of the whole. * * * The principle here recognized would not be applicable if the land had been patented. In such case the entire legal title would have been vested in Salvador, subject to the wife’s equitable title to an undivided one-half interest, and the children and heirs of Salvador would have inherited the entire legal title. * * * By their conveyance to Smith the legal title would have passed, and Rawls, as the vendee of Smith and holder of the complete legal title, should have recovered the entire title and possession of the whole, notwithstanding the state of his pleadings. But the legal title was still in the state, and under the deed from the heirs of Salvador the equitable title to an undivided one-half interest only passed.”

The rule, supported by a multitude of authorities from practically every jurisdiction, is stated in 33 O. J. 1139-1143, as follows:

“A court eannbt properly put upon its record a judgment which is not a proper sequence to the pleadings. The judgment must conform to and be supported by the pleadings in the case. It is a general rule that a recovery must be had, if at all, upon the facts alleged in the pleadings, and facts proved but not pleaded will not support the judgment, although found by verdict or findings, proof of a state of facts different from that alleged constituting a variance. A judgment must also be sustained by the evidence adduced in connection with the facts admitted by the parties in the pleadings, or otherwise. Facts pleaded but not proved, or admitted on the trial, will not support a judgment. In other words, the judgment must conform to both the pleadings and the proof and be in accordance with the theory of the action upon which the pleadings are framed and the case was tried. This rule is of universal application, and whether the action or suit is at law, in equity, or under the Code, the judgment must be secundum allegata et probata.” Phelps v. Zuschlag, 34 Tex. 371; Davis v. Davis, 51 Tex. Civ. App. 491, 112 S. W. 948; Burns v. Burns, 59 Tex. Civ. App. 549, 126 S. W. 333; Fred v. Moseley (Tex. Civ. App.) 146 S. W. 343; Patterson v. Sylvan Beach Co. (Tex. Civ. App.) 171 S. W. 515.

The uncontradieted evidence in the case shows that the land was acquired by Brewer after his marriage to Mrs. Wasson, by deed which, contained no recitation showing that it was his separate property, and the land, therefore, is presumptively community property, in which the plaintiffs in error would inherit Mrs. Rachael J. (Wasson) Brewer’s interest. No testimony was introduced to show that Brewer paid for the property out of his separate funds. Therefore, a directed verdict in favor of Brewer and his grantees was contrary to the theory upon which the case was tried in the court below and is unsupported by the evidence. This will require a reversal of the judgment.

Presumptively this action was instituted under Revised Statutes 1925, articles 2040 and 2041. Article 2040 provides that when property in this state has accrued to the heirs of any deceased person, such heirs or legal representatives shall be cited by publication, and that the citation shall contain a brief statement of the cause of action. Article 2041 provides that in suits involving land, the brief statement of the cause of action to be made in the citation shall contain any special pleas which are relied upon (by the plaintiff) in such suit.

The plaintiffs’ chain of title was specially pleaded by setting out the muniments of title and by the further special plea that the title rested upon the fact that the property was .the separate estate of Brewer at the time of the conveyance. These pleadings were adopted by all the defendants in error. They did not plead that the land was community estate or that Brewer sold it as community survivor, so even if they are considered as defendants in the cross-action in trespass to try title brought by plaintiffs in error, they were still confined to the title and special defenses pleaded by them. Koenigheim v. Miles, 67 Tex. 113, 2 S. W. 81; Rivers v. Foote, 11 Tex. 662; Hughes v. Lane, 6 Tex. 289; Gatewood v. Graves (Tex. Civ. App.) 241 S. W. 264; Shields v. Hunt, 45 Tex. 424; Custard v. Musgrove, 47 Tex. 220; St. Louis, etc., Ry. Co. v. Whitaker, 68 Tex. 633, 5 S. W. 449; McSween v. Yett, 60 Tex. 183; Joyner v. Johnson, 84 Tex. 465, 19 S. W. 522.

In the pleading filed by defendants in error on February 2, 1927, and which they term a .“supplemental answer,” and which is therefore presumably the last pleading filed by them, they are still insisting, in paragraph 2, that the property which they purchased was the separate property of Brewer,' in virtue of the laws of Iowa, where Brewer and his then wife lived; and in the third paragraph they emphasize this issue by pleading the antenuptial contract as a relinquishment by Mrs. Rachael J. (Wasson) Brewer of all her possible rights in Brewer’s property, in the event he should die first, by her agreement to accept $1,000 and the possession of their home for one year in lieu of and in satisfaction of such possible interest. But that is not all, for, as further evidence of their intention to recover upon thd theory that Brewer claimed and sold the property as his separate estate, they allege that the cash payment for the land, of $1,600, was his separate fund, and that when he afterward borrowed $5,000 to pay Crudgington in full, he mortgaged his separate property to secure the loan and that the proceeds of the loan were his separate property. It would seem, therefore, whether the defendants in error be considered either as plaintiffs or defendants in the trial court, they must prove their title, as alleged, or fail. Having repeatedly, from the filing of their first petition to the filing of their last supplement, asserted title under a sale made by Brewer as the separate owner, and not as survivor of the community, they cannot recover upon the ground that he had the right, as survivor, to sell for the payment of community debts, especially when, according to their contention, if true, the debt due the state would be his individual obligation. Part of the consideration recited in the deed from Brewer to Poe was •the assumption by the latter of the 97½ cents per acre due the state as purchase ' money. This being the condition of the pleadings, the issue of the right of a survivor to sell community property to pay community debts is not in the case, and will therefore not be discussed.

It was contended by defendants in error, during the oral argument, that because they had, by supplemental petition, pleaded not guilty to plaintiffs in error’s cross-action in trespass to try title, they were entitled to show that they were bona fide purchasers of the land. We cannot assent to this contention. Because Revised Statutes 1925, art. 7373, provides that in a trespass to try title suit, under a plea of not guilty, the defendant may prove any defense except that of limitation, it has been held that under such plea the defendant may prove that he was a bona fide purchaser. This is because such an action is purely statutory and the privilege is extended in virtue of the statutory provision. In all other cases, the-general rule is that a party who bases his right to recover or his defense upon good faith must allege it before he will be permitted to prove it. Kurz v. Soliz (Tex. Civ. App.) 231 S. W. 424; Vickers v. Carnahan, 4 Tex. Civ. App. 305, 23 S. W. 338; Murray v. Randolph (Tex. Civ. App.) 174 S. W. 825; 39 Cyc. 1867.

Defendants in error did not plead that they were bona fide purchasers and cannot rely upon that fact, if proven, to sustain their title. Their action is throughout a suit to quiet their title.

“As a general rule, the character or form of an action is to be determined from the complaint and is not changed by the nature of defendant’s answer or defense, or by-plaintiff’s reply.” 1 O. J. 1006, § ISO.

As presented by the pleadings, the defendants in error sued to quiet title, and the plaintiffs in error set up their defenses to that action, and then by cross-action sued in trespass to try title. While, as to plaintiffs in error, the action is, in part, a suit in trespass to try title, nevertheless, as to defendants in error, it remains one to quiet title and remove clouds. Stevens v. Palmour (Tex. Civ. App.) 269 S. W. 1057.

Under such conditions, plaintiffs in error were not required to prove any fact unless and until defendants in error had made out a prima facie case under their pleadings, entitling them to a judgment. Even if defendants in error had pleaded the defense of bona fide purchaser, no direct evidence was introduced to sustain the issue.

The court having directed a verdict for plaintiffs, the evidence upon the issues presented by plaintiffs must be considered in its most favorable light for the defendants. Crudgington’s deed to Brewer raised the presumption that Brewer acquired it as community property. This presumption is also sustained by the fact that Brewer borrowed money during the existence-of the community relation and made the final payment with the loan. The evidence further shows that the land having been acquired during coverture, the children of Brewer’s wife were entitled to her community interest unless it had been shown by positive proof that the property was Brewer’s separate estate, or that some of Brewer’s coplaintiffs were bona fide purchasers. Considering all the evidence introduced, from the defendants’ standpoint and most favorably to them, it necessarily follows that the trial court erred in instructing a verdict for plaintiffs. Plaintiffs, defendants in error, having failed to make out a prima facie case, we cannot presume that the court based his peremptory instruction upon any phase of the defendants’ case.

The judgment is therefore reversed, and the cause is remanded.
      <3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: MARTIN, J.

text:
    SCARBROUGH v. STATE.
    (No. 11580.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    Criminal law <§=>784(1) — Refusal of charge on circumstantial evidence held error, where identity of liquor bottles defendant was charged with transporting rested on circumstantial evidence.
    In prosecution for unlawful transportation of intoxicating liquor, where jury could deduce guilt from three circumstances, namely, that defendant, when followed by officers, ran and threw bottles away, that he had odor of whisky about him when arrested, and that some of bottles of whisky were found near route traversed by him when he ran, identity of which rested upon circumstantial evidence, refusal of requested charge on circumstantial evidence held error.
    Commissioners’ Decision.
    Appeal from District Court, Camp County; R. T. Wilkinson, Judge.
    J. D. Scarbrough was convicted for unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.

      Florence & Florence, of Gilmer, and Everett Bryson, of Pittsburg, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful transportation of intoxicating liquor; penalty, one year.

Officers testified that appellant came up on the Cotton Belt Railroad track at night. They followed him, and he ran. They heard bottles rattling, and observed him throwing some bottles. It was too dark for them to tell what, if anything, was in the bottles. They could just see the “flash of the bottles.” They followed appellant up town, arrested him, and detected.the odor of whisky on his clothes, took him to the sheriff, and after a few minutes went back over the route traversed by appellant and themselves, and found about six bottles, three of which had whisky in them. ' <

Appellant properly excepted to the court’s failure to charge on circumstantial evidence, and insists that the evidence raised such issue. That appellant had in his possession whisky and transported same was an inference to be drawn from circumstances only. It was not and could not be shown by direct evidence from the witnesses who testified that the bottles found were the identical bottles carried by appellant. The jury was authorized to deduce guilt from three circumstances, namely: That appellant ran and threw some bottles away; that he had the odor of whisky about him when arrested; and that some bottles of whisky were found near the route traversed by him' when he ran. The identity of these bottles of whisky rested also upon circumstantial evidence. In our opinion a charge on circumstantial evidence was demanded and its refusal by the court was reversible error. Kinslow v. State, 100 Tex. Cr. R. 140, 272 S. W. 468; Chew v. State, 104 Tex. Cr. R. 417, 284 S. W. 559; Bailey v. State, 97 Tex. Cr. R. 312, 260 S. W. 1057; Rodriquez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380; Rice v. State (Tex. Cr. App.) 1 S. W.(2d) 1093.

For the error discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

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