author: BARCÜS, J.

text:
    FORD MOTOR CO. v. MADDEN et al.
    No. 1069.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1931.
    Rehearing Denied Sept. 24, 1931.
    Turner, Rodgers & Winn, of Dallas, and Spell, Ñaman & Howell, of Waco, for appellant.
    Richey & Sheehy, of Waco, for appellees.
   BARCÜS, J.

This suit was instituted by appellee Mrs. Madden for herself and minor son, Eugene Madden, against appellant to recover damages occasioned by the death of T. E. Madden, husband of Stella and father of Eugene.

Appellant, a foreign corporation, maintained a branch office in Dallas where it assembled and sold Ford and Lincoln cars. D. C. Woods and Snyder Atwell were, for appellant, in charge of the department in Dallas for the sale of Lincoln ears. Appellant appointed certain designated dealers in Texas to sell the Lincoln cars. In 1928 there were approximately two hundred and forty-one such dealers. Each dealer was required to purchase and keep on hand one or more Lincoln ears to be used for demonstrative purposes. It was the duty of Mr. Atwell to visit said dealers from time to time and inspect the cars which were being used as demonstrators and see that same were kept in good repair. He testified that it was necessary for him to, and he did, drive said cars in order to ascertain whether same were in good order. It was his duty to assist the local dealers in the sale of Lincoln cars, and whenever he or the Ford Motor Company learned of a prospective purchaser of a Lincoln car, he took the matter'up with the local dealer in said territory.

On August 1, 1928, Mr. Atwell, having learned of a prospective purchaser of a Lincoln car at Lampasas, came to Waco, accompanied by D. C. Woods, to see Cruger Company, the local dealer for the Lincoln cars in the territory embracing Lampasas; and informed it of the prospective purchaser and requested Cruger Company to permit him to-take the Lincoln car, which Cruger Company had for demonstrating purposes, to Lampasas to see if same could be sold to the prospective purchaser. T. E.'Madden, the salesman for the Lincoln cars with Cruger Company, accompanied Atwell and Woods in the car to Lampasas. On the trip out Mr. Woods drove the car to Belton and either Mr. Madden or Mr. Woods drove same from there to Lam-pasas. On the return trip,'Mr. Atwell drove the car to a point within about four miles of Waco, at which place he collided with a White truck parked on the side of the road, which resulted in the death of both Mr. Madden and Mr. Woods. While at Lampasas some work was done on the car by a mechanic, adjusting the lighting system. On the return trip, the parties took their evening meal at Temple.

Mr. Atwell testified that in making the trip to Lampasas, as well as on the return trip, the. car was driven at a rate of speed from forty to fifty miles; that they could tell when the car was going from forty-eight to fifty miles because at .that rate the car would make a peculiar roar showing or indicating that it was running at said rate; that he was an experienced driver and was familiar with the Lincoln car and with the highway between Temple and Waco; that before he reached Lorena he- turned on the lights of the car; that the lights were not in perfect condition, but were sufficient for him to drive by; that there were no cars coming toward him and none behind him with lights to either hinder or help him in seeing; that just before the collision, he came up a hill or incline, and that as he came over the top of the hill, he saw a Ford truck headed toward Temple parked on his (Atwell’s) left-hand side of the road and on the Ford truck’s right-hand side; that in order to keep from hitting the Ford truck, he turned his car to the right, thereby placing his car farther on the right-hand side of the highway, when he then for the first time saw the White truck parked on the right-hand side of the road headed toward Waco, the way he (Atwell) was going; that in his opinion the White truck was not more than thirty or forty feet from the Ford truck and that same was parked in such way that he was not able, at the rate of speed he was driving, to avoid colliding with the White truck; that he struck the left rear end of the White truck with the right front end of the Dincoln car.

The testimony, tends to show that the Ford truck had stopped on its right-hand side of the road by reason of a flat casing; that the inside or left wheels thereof were from eight to twenty inches on the hard-surfaced portion of the road and the remainder on the gravel or shoulder side; that the White truck going toward Waco had, by reason of engine trouble, - stopped about two hundred feet from the Ford truck and was parked on its right-hand side of the road with the inside or left wheel extending from eight to twenty inches on the hard-surfaced portion of the road; that at said point the hard-surfaced portion of the road was fifteen feet wide and the gravel portion on each side was five feet, making the total width of the road twenty-five feet; that if the Ford truck and the White truck, under the most favorable aspect of the testimony, had been standing opposite each other, there would have been a space between them of from ten to thirteen feet. Neither of said trucks had any lights on either the rear or front thereof. They had been parked in said position for about two hours at the time of the collision, waiting for assistance to come from Waco. During the two hours the trucks had been so parked, a large number of automobiles, including the Greyhound bus, had passed along the highway between said trucks, said cars being driven, according to witnesses, at all rates of speed from slow up to the limit of the law. It became sufficiently dark for Atwell to, and he did,.turn on his car lights some ten or fifteen miles before he reached the place of the collision.

Based on sufficient pleadings to support same, the jury found that Mr. Atwell was driving the car at more than thirty-five miles per hour, and that he was attempting to pass the truck at a greater rate of speed than fifteen miles an hour, each of said acts at the time was in violation of the criminal statutes. The jury found that each of said acts was a proximate cause of the injury. The jury further found that Mr. Atwell was driving the car at a dangerous rate of speed, without sufficient headlights, and that he failed to keep a proper lookout, and that each of said acts was negligence and a proximate cause of the injury. The jury further found, in response to ' pleadings by appellant, that the injury was not the result of an unavoidable accident; that appellant had not loaned Mr. Atwell to the Cruger Company to assist it in making a sale of the car; that Atwell and Madden were not engaged in a joint enterprise; that Madden did not have an equal right with Atwell to control the driving and operation of the car at the time of the collision; that the failure of the Ford truck or the White truck to have lights burning was not the proximate cause of the collision; that the way in which the Ford truck and the White truck were parked on the highway was not negligence; that the way said trucks were parked did not obstruct the free 'passage of automobiles on said highway; that their being parked in the way they were, without lights, did not constitute a dangerous situation on the highway; that Madden was not negligent in failing to request Atwell to decrease his speed; that Madden did not acquiesce in, or approve of, the speed Atwell was driving; that Madden did not fail to keep a proper lookout; that Madden was not guilty of negligence in fail'ing to remonstrate or caution Atwell with reference to the speed the car was being driven ; that Madden was not negligent in failing to discover the trucks.

The jury assessed the damages for Mrs. Madden at $37,000, and for Eugene Madden, $3,000, for which the trial court entered judgment.

Quoting from appellant’s brief, it contends by its first ten propositions that the trial court should have given its requested peremptory instruction:

“(1st) Because the deceased, Madden, was guilty of contributory negligence, as a matter of law, in (a)' failing to protest, remonstrate or caution Snyder Atwell; and (b) in failing to exercise any care for his own safety on the given occasion; and,
“(2d) Because he accepted or assumed or incurred whatever risk was incident to the known situation under the known circumstances on the occasion in question; and
“(3d) Because Atwell and Madden were un-qualifiedly engaged in and upon a joint enterprise in which the negligence of Atwell would be imputed to and be the negligence of Madden.”

We cannot agree with any of these contentions of appellant. Before the court would be authorized to hold that Madden, as a matter of law, was guilty of such contributory negligence as to prevent appellees from recovering, it must appear from the evidence that his acts were of such nature and character that same beyond question caused the injury. In 20 R. O. L. 24-26, it is stated: “There is, however, no fixed standard in the law by which a court is enabled to say arbitrarily in every case what conduct shall be considered reasonable and prudent. ⅜ * * The surrounding facts and circumstances are of controlling importance. ⅞ * * What would be extreme care under one condition of knowledge, and one state of circumstances, would be gross negligence with different knowledge and in changed circumstances. * * * The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is 'their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs.”

In 45 O. J. 633, the rule is laid down that: “ ‘Negligence per se’ is a term which is frequently employed to designate an act or omission which is contrary to positive law, or so opposed to the dictates of common prudence that it can be said, without hesitation or doubt, that no careful person would have been guilty thereof.”

Clearly, to our minds the fact that Madden was riding in the car with Atwell under the facts and circumstances as revealed by the testimony in this case would not have authorized cr justified the trial court, nor does it authorize or justify this court, in holding that Bladden was guilty of such acts of contributory negligence that would, as a matter of law, prevent appellees from recovering. Under the testimony each of the two trucks was parked practically off the paved part of the road and had been in the same position for more than two hours and many cars had passed going at all rates of speed. There was a space between the two cars, if they had been parked parallel, of from ten to thirteen feet. According to some witnesses, they were approximately two hundred and twenty-five feet apart. It was an open highway with hard-surfaced pavement. According to Blr. Atwell’s testimony, he was driving at from forty to fifty miles per hour, with lights on his car sufficient for him to see any and all obstructions on the highway. While under the law at said time driving a car forty or fifty miles per hour was a violation of the criminal statutes, a few months thereafter the Legislature amended the law fixing the speed limit at forty-five miles per hour. In many of the states the speed limit has been entirely eliminated. Blr. Atwell was an experienced driver of a Lincoln car. He testified that the accident occurred after dark; that after dark the speedometer could not have been easily seen by Bladden unless the dash light was on; and that he (Atwell) did not remember whether the dash light was on or off. Under such circumstances it could not, we think, be said, as a matter of law, that Blr. Bladden was guilty of negligence by not having remonstrated with Blr. Atwell at the speed he was driving, or without having called his attention to the presence of the parked cars along the highway. It is a matter of common knowledge that drivers of automobiles along the highway are constantly called upon to pass cars that have stopped for repairs. The evidence was sufficient to support the jury’s findings that the trucks were not parked in such a way as to in any way obstruct the free passage of traffic on the highway and that Blr. Bladden was not in any way guilty of contributory negligence either by commission or omission in riding with Blr. Atwell at the time and under all the conditions and circumstances existing. 5 Tex. Jur. 785 and 190; 42 C. J. 1169-1173; Blashfield’s Encyclopedia of Automobile Law, vol. 2, 1109, 1110; D. & H. Truck Line v. Hopson (Tex. Civ. App.) 4 S.W.(2d) 1013; Yturria v. Everton (Tex. Civ. App.) 4 S.W.(2d) 211; City of Uvalde .v. Stovall (Tex. Civ. App.) 279 S. W. 889; Routledge v. Rambler Automobile Co. (Tex. Civ. App.) 95 S. W. 749; Bower Auto Rent Co. v. Young (Tex. Civ. App.) 274 S. 295; Lancaster v. Browder (Tex. Com. App.) 256 S. W. 905.

Appellant relies mainly upon the case of Blurphy v. Milheiser (Tex. Civ. App.) 30 S.W. (2d) 586 (error ref.), and authorities there cited. We think the facts in this case are easily distinguishable from the Murphy v. Milheiser Case. In the Blurphy v. Blilheiser Case the opinion of the court states that the car had been operated by Milheiser, the driver, continuously for more than twenty miles at from seventy to eighty miles an hour with the full knowledge and with the approval of Blurphy and without any protest being made by Murphy, the invited guest, who was killed. The jury found that Blurphy was guilty of negligence in failing to protest, but they also found that that negligence was not a proximate cause of the collision. The court held that where a person rode in a car which he knew was being driven at from seventy to eighty miles an hour for a distance of more than twenty miles without making any protest, he was, as a matter of law, guilty of such contributory negligence as to prevent him from recovering any damages. In the case at bar, the car was being operated, according to Blr. Atwell’s testimony, at from forty to fifty miles per hour. It was not shown that the dash light was burning so Bladden could see or know the speed the car was running and no direct evidence that Madden knew at the time of, or just before the collision, what rate of speed Atwell was driving.

The trial court defined “proximate cause” as:

“That cause wjiich in a natural and continuing sequence, unbroken by any new and independent cause, produces an injury and without which the injury would not have occurred, and from which it ought reasonably to have been foreseen or reasonably anticipated by a reasonably prudent person that the injury complained of, or some similar injury, would result naturally’and .probably in the light of the attending circumstances.
“ ‘New and independent cause’ as used herein, means a new and independent force which breaks the causal connection between the original wrong, if any, and the injury.”

Appellant’s objection to said definitions was that in defining “proximate cause” the court had failed to define “new and independent cause.” It further objected to the court’s definition of “intervening agency” because it was not a part of the court’s definition of “proximate cause,” and because it was not necessary for the court to give a definition of “intervening agency.”

By its eleventh and last proposition, appellant in this court for the first time calls attention to what it deems defects in the definition of “new intervening cause” as given by the trial court, in that it claims said definition did not embrace a lack of control and lack of foreseeability. A careful reading of the court’s charge shows that it did not use in its definitions, nor in connection with any of the issues submitted, the words “intervening agency” or “new intervening cause.” Presumably, the trial court omitted from its charge as given said definitions because of the objection made by appellant that it was not necessary to define “intervening agency.” If appellant is by this proposition attempting to complain of the definition of “new and independent cause” as given by the trial court, its objections thereto as made in the trial court were too vague and indefinite to put the trial court upon notice of the particular defects now pointed out, and would not authorize or justify this court in reversing the judgment of

the trial court for said alleged defects. Colliard v. Goodwin (Tex. Civ. App.) 24 S.W.(2d) 786, par. 19; Norwich Union Indemnity Co. v. Wilson (Tex. Civ. App.) 17 S.W.(2d) 68, par. 33; Karotkin Furniture Co. v. Decker (Tex. Civ. App.) 32 S.W.(2d) 703; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662; Chisos Mining Co. v. Llanez (Tex. Civ. App.) 298 S. W. 642; Texas Electric Ry. Co. v. Texas Employers’ Ins. Ass’n (Tex. Civ. App.) 9 S.W. (2d) 185, par. 10; City of Wichita Falls v. Whitney (Tex. Civ. App.) 26 S.W.(2d) 327; Isbell v. Lennox, 116 Tex. 522, 295 S. W. 920.

We have examined all of appellant’s propositions and assignments of error, and same are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McClendon, c. j.

license: Public Domain

text:
    NYSTEL v. THOMAS.
    No. 7497.
    Court of Civil Appeals of Texas. Austin.
    July 22, 1931.

      Woodruff & Holloway, of Brownwood, for appellant.
    Wilkinson & Wilkinson, of Brownwood, for appellee.
   McClendon, c. j.

Thomas (lessor) sued Nystel (lessee) to have declared terminated an oil and gas lease upon an SO-acre tract of land in Brown county, on account of failure of the lessee to begin drilling well No. 3 upon the premises within one year after abandonment of well No. 2 thereon, as required in the lease; and for an injunction to prevent lessee from “further trespassing or intruding” upon the leased premises. Temporary injunction was granted and Nystel filed a cross-action for damages for suing out the injunction writ. A trial to a jury upon special issues resulted in a judgment in favor of Thomas both upon his suit and upon Nystel’s erossraction. Erom this judgment Nystel has appealed.

The lease was executed November 1, 1924. The grant was for the sole purpose of mining and operating for oil and gas, laying pipe lines, etc., and provided that it should “remain in force and effect, subject, however, to performance of the terms and conditions hereinafter mentioned, for a term of five years from this date, and as long thereafter as oil and gas, or either of them is produced from said land by lessees or his assigns, in commercial quantities.”

With reference to gas the lease provided: ,

“Lessee is to pay lessors one hundred dollars ($100.00) per annum for each well drilled on said premises in which gas is found in commercial quantities, payment therefor to begin thirty (30) days after the completion of said well, and to be made quarterly thereafter i-n advance; and such payment is to continue as to each well as long as it produces gas in commercial quantities.
“Lessors are to have gas free of cost from any such well or wells for all stoves and all inside lights in the principal dwelling house and in one tenant house on said tract of land during the time of this lease by making their own connections with said well or wells at their own risk and expense.”

With reference to drilling it provided that actual drilling of a well should begin on the west half of the premises before February 1, 1925, unless, on or before that date the lessee paid or tendered to the lessor $100, which payment or tender should operate as rental and cover the privilege of deferring the beginning of such well for three months from said date. If such well proved to be without oil or gas in commercial quantities, actual drilling of a second well should begin before November 1, 1925, unless like payment or tender should be made on or before that date, which would in like manner defer the beginning of such well for three months. The following is the clause involved in this litigation: “If both the first and second wells drilled on said 80 acre tract of land prove to be wells without either oil or gas in commercial quantities, then lessee shall within one year from the time of the completion of said second well begin the actual drilling of a third well on said land; and in the event he does not begin the drilling of said third well within said time, this lease shall thereupon terminate as to both parties hereto and shall cease to be of any further force and effect as to the whole of said 80 acre traer.”

The $100 was paid so as to- extend the time for drilling well No. 1, which well was begun during the extension period and was brought in in June or July, 1925, with a very strong gas pressure, so great in fact that all efforts to control it proved unavailing, and the railroad. commission required that the well be filled up so as to prevent the further escape of gas. This was done by filling the well with a mud-laden fluid some time in July. 1925, and some thirty days after gas was discovered; and the well was thereupon abandoned. There was no payment or tender of rental on the theory that well No. 1 was a producer in commercial quantities until after this suit was filed. Well No. 2 was begun shortly thereafter and was completed or abandoned about December 1, 1025, as a dry hole. Nothing further was done on the leased premises until November, 1920, when Nystel erected his drilling rig over well No. 1 and proceeded to recondition it so as to produce gas as fuel for operating his machinery in drilling well No. 3 which he commenced about February 1, 1927, more than twelve months after abandonment of well No. 2.

Nystel’s defense is based (1) upon compliance with the terms of the lease, and (2) upon waiver or estoppel as regards failure to begin drilling well No. 3 within twelve months after abandonment of well No. 2. His pleading in this regard is important, and we quote it in full:

“For further answer herein, defendant says that this defendant, in compliance with the terms, covenants and conditions in oil and gas lease mentioned in plaintiff’s petition, commenced the drilling of the first well, as provided in said lease, within the time and in the manner therein provided-; that said well not only produced gas in commercial and paying quantities, but gas produced therefrom was of such volume and pressure that the pipe with which said well was cased did not withstand the gas pressure, causing water to break in, as a result of which defendant shaled up the hole so as to preserve said well so that the same could be properly cased.
“That thereafter, defendant drilled the second well within the time and in the manner provided for in said lease, said second well being a dry hole.
“That defendant thereafter began the drilling of a third well on said land within the time and in the manner provided for in said lease, but before so doing, and by and with the consent and approval of plaintiff', defendant went back to his No. One Well, cleaned out and re-cased the same, so that he might have gas to use in drilling said third well; that upon so cleaning out and re-conditioning said No. One well, the same produced gas in paying quantities; that upon re-conditioning said well, defendant moved to the location of his third well, and was drilling the same when he was served with copy of writ of injunction in this cause, necessitating the suspension of further operations on said lease.
“That defendant -drilled a well on said land producing gas in paying quantities, and tendered to plaintiff the rental on said well, as provided for in said lease, and in all things complied with the terms of said instrument so as to make the same a valid and subsisting oil and gas lease by reason of said facts.
“That not only was said lease a valid and subsisting oil and gas lease by reason, of said matters, as above stated, but by reason of plaintiff’s acquiescence and agreement allowing defendant to clean out and recondition well No. One before beginning well No. 3 on said lease, plaintiff should be, and is now estopped to claim that said third well was not commenced or drilled so as to cause a forfeiture of said lease had the same not been commenced within the time provided in said lease, and further conditioned that the first two wells drilled thereon should not have resulted in the production of oil and gas In paying quantities.”

In so far as this pleading may be construed as alleging that-well No. 1 was originally brought in as a producer, it is wholly without support in the evidence, which conclusively establishes the abandonment of the well in July, 1925. No claim was then made by Ny-stel that it was a producer in commercial quantities in accordance with the lease; and there was no payment or tender of rentals, which would have accrued, if the well were such producer.

The alllegation that well No. 3 was begun within twelve months of abandonment of well No. 2 is also without support in the evidence.

Two theories of alleged defense remain: <1) Waiver or estoppel as regards time for commencing well No. 3; and (2) that well No. 1 as reconditioned was a producer in commercial quantities.

The issue of waiver or estoppel arises upon the exclusion of testimony. Upon this issue Nystel testified: “I had a conversation with Mr. Thomas about when I came back on the lease to this No. 1 well (within a year from completion of second well). He came and asked me what I was doing and I said I would try to clean out that well and use it as a gas well for further operation and drilling on the lease. He said he hoped I could do it. He did not make any objection to my reconditioning and going into No. 1 well. He did not. That seemed to be all right with him; it was so far as I know. I never heard of any objection.”

The excluded testimony, as shown by the bill of exceptions was: “That if plaintiff, Grant Thomas, had not stated that it was agreeable with him (the plaintiff) for defendant to clean out No. 1 well so that the gas developed therefrom might be used in the drilling of No. 3 well, said defendant would have moved to No. 3 location and would have begun the actual drilling of said well within one year from the date of completion of No. 2 well.”

The evidence, we think, was properly excluded, since no issue of waiver or estoppel was presented. The most that can be said of it is that it gave permission, if permission were necessary, to recondition well No. 1 for the purpose of obtaining fuel for the drilling of well No. 3. There is no suggestion or intimation that'any term of the lease would be waived, or that there would be any extension of time in regard to beginning drilling of well No. 3, and the evidence, if admitted, would have presented no issue in that regard, to be submitted to the jury., This testimony also negatives the idea that well No. 1 was to be reconditioned as a producer under the lease, the only purpose being as stated to provide fuel for the drilling of well No. 3.

The jury found in answer to special issue No. 1 that well No. 1 “did not prove to be a well with oil and gas in commercial quantities.” In connection with this issue the court charged: “In answering this question you are instructed that ‘proved’ as here used means to ascertain or determine by observation, experiment or test. You are instructed that ‘commercial quantities’ as herein used means such quantities as would make'it profitable to operate the well and produce oil or gas after paying all operating expenses.”

No objection was made to the charge, but Nystel requested the following special charge, which the court gave: “In connection with Special Issue No. 1 you are instructed that if a well produces gas in sufficient quantities to pay a profit over the expense of operating the well, then it is producing in commercial quantities, although it may not repay the cost of drilling the well.”

Nystel contends that the well was a producer in commercial quantities as a matter of law, and that there was no evidence to support the jury finding to the contrary.

The evidence was conclusive: That when the well was first brought in in 1925, it had a very strong gas pressure; that very shortly water got into it, either from bursting of the casing (Nystel’s testimony), or from being drilled too deep (Thomas’s testimony); that Nystel was unable to control it, and it was finally (July, 1925) stopped up with a mud-laden fluid, upon order of the railroad commission, to prevent escape of the gas and water percolation into other parts of the field; that it was definitely abandoned, and nothing further done with it for nearly a year and a half; that Nystel began to recondition it about November 15, 1926, for the purpose of obtaining fuel for drilling well No. 3; that it did produce some gas upon being reconditioned.

Upon the amount of gas produced the testimony is conflicting.

Nystel testified: “As soon as I baled this well down on this occasion it began to show gas. But I knew that I would have to pump it for awhile. I put a little engine and house there and pumped it day and night. As to whether I was able to recondition the well so as to make it produce gas: It made enough to run the pump engine and tractor and save me five dollars a tower on drilling. The gas I produced from that well was making me a profit above the cost of operation of that well. ⅞ * * I finished my No. 1 well on the 17th day of January, 1927.”

Thomas had notified Nystel on January 3, 1927, that the lease was forfeited and forbade him to further operate .thereunder. Well No. 3 was begun February 1, 1927; this suit was filed February 8, 1927; the rent money was tendered February 9, 1927; an.d the injunction writ served February 11, 1927.

Thomas testified: “Before he had done that (started well No. 3) he had done some work on the first well; he had opened that up. * * * He put the drill over the first well and drilled out the mud and he put a little gasoline engine over it to pump the water. I do not know what all he did not do. Finally he got a little gas — a little gas came back. Maybe enough for house use out of the first well. It did not produce as much as it did at first. It might have produced enough for house use. He was pumping it every day. As to what he started to do with that gas: The Lord knows, I don’t. * ⅜ ⅜ He did get some gas. He was using that gas in his operations when I stopped him.”

Bruce, a witness for plaintiff, testified:

“After it had been plugged and then reopened, I saw that well * ⅜ ⅜ I observed the quantity of gas at that time. * * ⅜ About the last time I was over there Mr. Nystel had the stove in his camp house and he had the gas burning in this stove, a"nd I was curious to see how much gas the well was making and I looked into the stove and he had some wood that he was burning in it. There was probably enough gas coming out of that pipe to run an ordinary gas stove. * ⅜ * He was not drilling at that time. * * * I gaw weu after it had been finally reconditioned by Mr. Nystel. I saw it after he started to pump it with his little pump but I did not see it after he had laid the line over there. * * * He was still pumping the water off when I saw it. I do not know what it made after he finally got it in shape.”

Rogers, a witness for plaintiff, testified: “After this well was reopened by Mr. Nystel and a pump put in it, I know what purpose the gas in it was used for. * ⅜ * He used it first in his shack and then when he started his third well he began to use it in that. I do not know of any other use he made of it. ⅜ * * i wag ⅛01.6 every day. • * * * I do not know how much if any water it was making after it was reconditioned. He had it under the pump all the time; he had to pump it all the time. I do not know how much more gas was available for use at that time than he was using. * * *' As to what volume of water was coming out of it: All that his engine would take care of. I could not say how long that engine had been running. As to whether it was running constantly: If the engine stopped for thirty minutes * ⅛ ⅜ he had not any gas for his engine or his stove. The water would smother the gas out if he did not keep the engine going all the time. I could not say how long that was true, but all the time that he was running his No. 3 well. I know that he had fo continue pumping all that time.”

The test for determining “commercial quantity” in reference to discovery of gas laid down in Hanks v. Magnolia Petroleum Co. (Tex. Com. App.) 24 S.W.(2d) 5, 6, is whether the "quantity be sufficient to warrant the use of the gas in the market, and the income therefrom is in excess of the actual marketing cost.”

Applying this test, we think there can be no question but that at least a fact issue was presented.

Nystel invokes the rule, “that the question of what amounts to oil and gas in paying quantities is a matter to be determined exclusively by the lessee acting in good faith.” See Aycock v. Paraffine Oil Co. (Tex. Civ. App.) 210 S. W. 851; Texas Pacific Coal & Oil Co. v. Bruce (Tex. Civ. App.) 233 S. W. 035; Masterson v. Amarillo Oil Co. (Tex. Civ. App.) 253 S. W. 908, 915; Summers on Oil and Gas, p. 320.

Even under this rule we do not think the lessee could arbitrarily extend the lease by paying the rentals. Good faith would require that there be some basis of substance for a conclusion that the supply was sufficient to market at a profit. The evidence, we think, fairly raises this issue of good faith, and since appellant did not 'request an issue upon that subject, but submitted a definition in line with the rule in the Hanks Case,, above, which the court gave, we do not think he is in position to complain of the verdict.

But aside from this, we do not think appellant is in position to invoke this rule. In the absence of waiver or estoppel, the lease expired by its terms on December 1, 1926, unless kept alive by some express provision. The only express provisions which could extend it were: (1) “the actual drilling of.a third well,” or '(2) production in commercial quantities. Well No. 3 was not begun until February 1, 1927. It was not contended, either, in the pleading or in the evidence, that the reconditioning of well No. 1 constituted “the drilling of a third well,” within the terms of the lease. The sole purpose of such reconditioning, as pleaded and proved, was to get fuel with which to drill well No. 3. All the evidence with reference to the production of well No. 1 after abandonment relates to the date of completing its reconditioning, which Nystel gives as January 17, 1927. .The tender of the rentals was not until February 9, 1927, which, to comply with the lea.se, must have been within 30 days after production. The evidence negatives any production on December 1, 1927, without which, in the absence of drilling No. 3 well, the lease expired by its express terms.

The only remaining question is whether Nystel was entitled to the rental value (from $25 to $35 per day according to testimony) of his drilling machinery from February 11, 1927, the date the injunction writ was served, to March 24, 1927, the date of its modification.

The suit was to declare the lease forfeited for failure to begin drilling well No. 3 within a year after abandoning well No. 2. The allegation upon which the injunction was predicated was that Nystel “is now intruding and trespassing on said land, and claiming the right further to operate thereon under said lease; and has in fact within the last few days, begun the drilling of another well thereon, though warned, and forbidden by this plaintiff to do so.” The prayer was that Nystel and his agents and employees be enjoined and restrained from “further trespassing and intruding upon said land, and from further operating, and attempting to operate, under said lease.” The injunction, followed the language of this- prayer.

The lease contained this clause: “Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing.”

xlppellant contends that the language of the writ was broad enough to inhibit his going upon the premises to remove his machinery, and it was not incumbent upon him to seek ita modification.

The writ should be construed in the light of the allegations of the petition, the subject-matter of the suit, and the object therein sought. When so construed we do not think it is reasonably susceptible of the construction that it inhibited the removal of appellant’s machinery from the premises. The case of Hermann v. Allen, 103 Tex. 382, 128 S. W. 115, 117, is directly in point. We quote from the opinion by Mr. Justice Williams: “The charge of the trial court allowed the recovery of the value of the use of certain tools or apparatus for moving houses which plaintiff had put under the building in moving it before the injunction was issued. The writ restrained the parties from removing or in any way interfering with the building. We think that no reasonable construction of it required the plaintiff to leave his tools under the building. The removal of them when the building may have been supported by them would have been interfering with it in a sense, but plainly not in the sense of the writ, the manifest purpose of which was to stay the efforts to remove. It may be true, also, that the taking away of the tools or apparatus supporting the building might have necessitated the substitution of something else in their stead, but this ought not to entitle the plaintiff as a measure of his damage to recover the value of the proper use of such appliances, alleged to be so costly, when applied to the use for which they are ■designed, when the use he chose to make of them was only as a support for the house. That attributes to the injunction a consequence which did not legally or reasonably flow from it.”

The trial court’s judgment is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    ROGERS v. COTTON.
    No. 9569.
    Court of Civil Appeals of Texas. Galveston.
    July 17, 1931.
    Rehearing Denied Sept. 24, 1931.
    W. R. Petty, of Palestine, for appellant.
    D. A. Frank, of Dallas, for appellee.
   PLEASANTS, C. J.

This is a suit by appellant to recover damages for personal injuries resulting from his being struck by a motor-driven bus owned by appellee and operated by an agent and employee of appellee on a public road in An-derson county.

The petition alleges that the bus, at the time it ran against and injured- the plaintiff, was being negligently operated by the driver for appellee. The acts of negligence with which the driver is charged were his failure to reduce the speed of the bus to fifteen miles per hour when passing the truck of plaintiff which was parked on the side of the highway, driving the bus at an excessive and dangerous rate of speed, and failure to use proper care to prevent plaintiff’s injury after he saw plaintiff crossing the highway in front of the bus.

The answer of the defendant contains a general demurrer, numerous special exceptions, ■and a general denial, and he specially pleaded various acts.of negligence by plaintiff which it is averred directly contributed to his injury ; and further specially pleaded that plaintiff’s injury was “due directly and proximately to an unavoidable accident for which the defendant is in no way responsible.”

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

The evidence shows that plaintiff was struck and seriously injured by a motorbus while being driven by an employee of defendant on a public highway. Just prior to the accident the plaintiff had parked the truck in which he was traveling on the highway and gone to the ditch on the side of the highway to procure water for the radiator on his truck. The accident occurred about dark in. the evening. The defendant’s car was following a short distance behind another car. When the car which defendant’s car was following reached plaintiff’s parked truck, it had to turn to the left side of the highway to pass the truck, and defendant’s car made the same turn when it reached the truck. The plaintiff, returning from the ditch to his truck, attempted to pass in between defendant’s car and the car it was following and was struck and injured by the defendant’s car.

The driver of defendant’s car testified that there was a car forty or fifty feet ahead of him which had maintained that position for a mile or two before they reached the parked-truck; that the two cars were running about the same speed and remained about the same distance apart for some time before reaching the truck; and that he could not see ahead of the car in front of him. When the other car pulled to the left, he knew there was something ahead and bore to the left in the wake of the other car. He then saw that there -was a truck on the road without any lights. He further testified:

“I decreased my speed at the time I started to go around 'him. The first time I knew the man was in the, road was after the other car had passed the truck. The man when I saw Rim was over on the left hand side of the road. The first thing I saw of him was about that much of his leg, from there down, from the lcnees down. When I saw the man I slammed on my brakes, and done everything, pulled to the left far as I could without going off of the dump. His truck was parked right on the highway, like he was driving down the highway. I don’t suppose the left side of the truck was over a foot from the middle of the road, from the center line going down through there. The four wheels of the truck were all over on the pavement. Yes, sir, I struck him. When 'I struck him, he just whirled and fell, hit him on his right liip, it whirled him, and I pulled in to the right hand side of the road and stopped. I judge I was going somewhere between 10 and 12 miles an hour at the time I struck him. I don’t know hardly how close he was to my truck (bus) when I struck him. ⅜ * ⅜
“There was nothing at all that I could have done to have prevented hitting him, unless I had run clear off that dump, because I used every precaution in the world I could use. Yes, sir, my brakes were in good condition, practically a new car. Yes, sir, the lights were in good condition. * ⅜ ⅜
“Yes, sir, I say when I started to pass that truck I slowed down from 10 to 12 miles an hour. He was just a short ways ahead of me when I first saw him. No, he was not as much as 200 feet ahead of me when I first saw him. The lights don’t shine over 40 or 50 feet ahead of me the way they test them. He was something like 30 feet ahead of me when I first saw him. No, sir, I was not running at about 12 miles an hour when I first saw him. I suppose I was running about 20 miles an hour when I first saw him. He was 30 feet from me. Well, I guess we both saw him about the same time. I had done applied my brakes, he said: ‘There is a man in the road.’ Just like that. Yes, sir, Mr. Brannen (a passenger in the bus) said: ‘There is a man in the road.’ I had my foot on the brake by the time he said that. No, sir, I couldn’t stop in 30 feet, not coming down grade on pavement. No, sir, I wasn’t going up grade. No, sir, it was not a little up grade, there where that car was parked, it was right square in the valley. It was going down the slope like that.”

Mr. Brannen, who testified for plaintiff, placed plaintiff’s distance from the bus at the time he was first seen by the witness and the driver at about 50 feet. »

Mr. Elmer Brown, an automobile mechanic and who qualified as an expert in driving and stopping ears, testified: “You ought to stop a car going 15 miles per hour, with four wheel brakes, in reasonable or average condition, in 6 to 8 feet. If I was going at the rate of 35'miles per hour I could stop the car anywhere from 10 to 20 feet, depending on your brakes, the condition they were in. Yes, sir, of course when going 10 to 15 miles an hour if you put on the brakes it just squats down in the road. * * ⅜ Yes, sir, all cars are equipped with head lights. With a good light you ought to be‘able to see 200 or 300 feet in front of you, if you were keeping a lookout.”

J. A. Bell, a witness for plaintiff, testified: “A man driving a car with four wheel brakes, in reasonable good condition, going at the rate of 15 miles per hour, would go something like 10 feet before he could stop, using all means at hand.”

We agree with appellant that this evidence raises the issue of discovered peril, and the trial court erred in failing to submit that issue to the jury.

While discovered peril is very imperfectly pleaded by plaintiff as a ground of recovery, •we a re inclined to the opinion that the pleading is sufficient, as against a general demurrer; but whether sufficient or not, the general demurrer and all of the special exceptions to the petition were overruled by the court. In these circumstances it would be unfair to the litigant, when the evidence raises a material issue sought to be presented by his pleadings, to affirm a judgment against him on the ground that his pleadings were insufficient to present' the issue.

We are unable to agree with appellee that the plaintiff’s request for the submission of the issue of discovered peril was properly refused by the trial court because this requested issue was presented to the court on the same paper and jointly with other issues' requested to be submitted. It seems to us that our courts have gone to.the very limit of reason in enforcing the rule requiring special issues to be requested separately,. by relieving the court- of the duty of submitting a material requested issue raised by the pleadings and evidence, merely because that in the instrument containing the request for the submission of such issue other separate issues which should be refused are requested to be submitted, and we are unwilling to extend this technical holding to include the request made by plaintiff in this case for the submission of the special issue of discovered peril. This request, as shown in the record, is in this form:

“Comes now the plaintiff and requests the court to submit to the jury the following special issues and questions, to-wlt:
“Special Issue No. 1. Did the defendant’s driver of the ear in question which struck, collided with and injured the plaintiff, if he was injured at the time in- question, discover the dangerous position of the plaintiff, if he was in a dangerous position, and realize his peril and realize that he would not probably be able to extricate himself therefrom so that in the exercise of ordinary care .by the use of all means at his command consistent with the safety of the car ancl its passenger and himself he could have avoided the collision, and striking of the plaintiff, O. G. Rogers. Answer:-.
“Special Issue No. 2. If you answer the preceding question No, then you need not answer this issue, but if you have answered this issue, hut if you have answered the same yes, then did the driver of said car in question after he was apprised of the fact as shown by your affirmative answer yes to the preceding issue, if you do so find, exercise ordinary care to use all of the means at his command consistent with the safety of the car and its passenger and himself in order to avoid the injury. Answer: -.
“Special Issue No. S. If you have answered the preceding issue yes, you need not answer this issue, but if you answer the same No, then was such failure a proximate cause of the injury of the plaintiff. Answer: -.
“Special Issue No. 4. Could the defendant’s driver of the ear in question by the use of ordinary care have discovered the plaintiff in the dangerous position, if he was in a dangerous position, in time, by the exercise of all of the means at hand, to have avoided striking, colliding with and injuring the plaintiff, if he was struck and injured. Answer: -.
“Special Issue No. 5. If you have answered No, then you need not answer this issue, but if you have answered this issue yes, then answer, was the failure of said driver to exercise ordinary care negligence. Answer:
“Special Issue No. 6. If you have answered the foregoing issue yes, then was such negligence a proximate cause of the plaintiff’s injury? Answer: -.
“Requests by Plaintiff:
“W. R. Petty, Attorney for Plaintiff.
“Presented to the court before the reading and presenting of the main charge to the jury by the court, and by the court refused, to which action of the court the plaintiff then and there excepted.
“Ben E. Dent, Judge Presiding.”

The first, and the second and third, of these questions which are only submitted in event of an affirmative answer by the jury to the first, could have been properly submitted as requested. The fourth question does not correctly submit the issue of discovered peril, and therefore it, as well as the fifth and sixth" questions, which were only to be answered if the fourth should be answered in the affirmative, were properly refused. The trial court could have no difficulty in determining which of these requested issues should have been submitted to the jury, and the plaintiff’s right to have the material fact issues of his case passed upon by the jury should not be denied him for so slight a reason as the inadvertence •of his attorney in not presenting these two distinct and separate issues in separate in* struments and upon separate pieces of paper.

The finding of the jury that plaintiff’s injury was the result of an unavoidable accident does not destroy his right to complain of the failure of the court to submit the issue of discovered peril. If that issue had been properly submitted, the jury might not have found that the accident was unavoidable, and plaintiff was entitled to an affirmative submission of all of the issues relied upon for recovery which were raised by the pleadings and evidence. Montrief & Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276; City of Pampa v. Todd (Tex. Civ. App.) 11 S.W.(2d) 247.

These conclusions require a reversal of the judgment, and it is so ordered.

Reversed and remanded.


author: BLAIR, J.

text:
    CHESTNUT v. CASNER et al.
    No. 7633.
    Court of Civil Appeals of Texas. Austin.
    July 22, 1931.
    Rehearing Denied Sept. 23, 1931.

      Ferguson, King & Zimmerman, of Burnet, for appellant.
    A. J. Wirtz and W. S. Gideon, both of Seguin, and F. H. Hammond, of Burnet, for appellees.
   BLAIR, J.

Appellee Mrs. Mattie IC Casner, joined by her husband S. C. Casner, sued appellant, O. IC Chestnut, in trespass to try title, to 100 acres -of land- out of the Isaac Casner survey in Burnet county, asserting title thereto under deeds duly recorded, and by the five, ten, and twenty-five year statutes of limitations. Appellant filed formal answer, and by cross-action asserted title to an undivided three-tenths interest in the 100 acres, denying that he was barred to assert such title by any statute of limitations. A trial to the court without a jury resulted in judgment for appellee for title and possession of the land; hence this appeal.

The state of Texas patented the Isaac Cas-ner survey to Wm. Simmons in 18S5. Simmons conveyed 200 acres out of the survey to J. B. Hughes, who died intestate, leaving as his sole heirs his wife, Mary, and two children, Minnie and Edward Hughes. The wife later married John S. Watson, and the daughter, Minnie, married J. B. Maxwell; and Maxwell was appointed guardian of Edward Hughes. On August 15, 1874, Mary F. Watson, joined by her husband, John S. Watson, executed a deed to Delevan Chadwick conveying the following described land: “ * ⅜ ⅝ All our right, title and interest in and to an undivided one-half of the tract of land purchased by J. B. Hughes now deceased, who in his lifetime was the husband of the said Mary F. Watson, from one William Simmons, containing 200 acres, more or less.”

To this deed was appended after the signatures of the grantors the following:

“Sketch and field notes of the dividing lines and corners made in conformity with an agreement between Delevan Chadwick and J. B. Hughes, deed, in dividing the two hundred acres of land purchased by them out of the 12S0-aere survey patented to AVilliam Simmons assignee of Isaac Casner. (Here follows description of the two 100-acre tracts.) Survey this 16th day. of July, 1874.
“D. C. Corwan, Surv.”

In explanation of this appendage to the deed, and as showing the circumstances attending its execution, and that grantors only intended to convey the one-half interest of Mrs. Watson, formerly Mrs. I-Iughes, in the 100 acres thus partitioned to Chadwick, appellant offered to prove by witness W. M. Watson, as follows:

“I am seventy-eight years old. At the time this land was patented to Hughes I must have been about nineteen years old. I knew Hughes personally, lived right by him. This agreement between Hughes and Chadwick was made on the premises. I was there at the time it -was made and my father was there. Hughes bought the property and came there on it and afterwards Chadwick came there on it and they made this agreement, that they would pay it out together and they would then divide it. I do not know whether Chadwick ever paid Hughes for what Hughes had ever paid. I do not know that he ever paid him anything or not. As to how much Hughes had paid down on it, I do not think they had discussed that. I do not know whether they discussed what was due on it, that was after Hughes had gotten the patent on the land. The substance of the agreement was, as I remember it, that Chadwick was to receive his portion of the land when he paid for it but in the meantime Hughes was to pay for the land and receive the patent on it. I do not know anything about when he paid or how much he paid or how much he was going to pay.' I do not know whether he ever refused or ever paid anything on that or not.”
“As to whether or not there was a small balance due on that which my father paid after Hughes’ death, there was a settlement between them but I did not personally know what it was.”

This evidence was excluded because it varied the terms of the deed, and three of appellant’s four propositions complain that the court erred in excluding this evidence.

The 100 acres awarded to Chadwick is not in controversy-; but the remaining 100 acres of the Hughes 200 acres, which appellee claims under a chain of title from the state through Simmons, Hughes, and by mesne conveyances of record to herself. More particularly she claims that the above deed conveyed the entire undivided one-half interest of Mrs. Watson as the widow of Hughes, to the entire 200 acres; and that she obtained the interest of the two Hughes children under a deed by Minnie Maxwell and her husband, J. B. Maxwell, executed in 1894, and recorded in 1895, conveying all right, title, and interest in the 100 acres in controversy, and under a deed by J. B. Maxwell as guardian of Edward Hughes, executed in 1896, and recorded in 1S98, conveying a seven-tenths interest in and to the 200-acre Hughes tract, both deeds being executed and delivered to AY. M. McDonald, appellee’s father. W. M. McDonald and wife by will left their property to their children, who executed a partition deed which awarded to appellee the 100 acres in controversy; and which deed was executed and recorded in 1915. Appellee also claimed the 100 acres by the five, ten, and twenty-five year statutes.of limitations, and the facts sustaining those pleas will be discussed under appellant’s fourth and remaining proposition, contending that no actual ouster of him was shown by the evidence sufficient to start the running of any statute of limitations against him as a tenant in common.

Appellant claims a three-tenths undivided interest in the 100 acres in controversy under a deed executed to him in 1906, and recorded in 1906, by John Watson, Amos Watson, and Hattie Levy, joined by her husband, Ed. Levy, children of John S. and Mary Watson, conveying a three-tenths undivided interest in the 100 acres in controversy.

Unquestionably the language, “all our right, title, and interest in and to an undivided one-half of the tract of land purchased by Hughes * * * containing 200 acres, more or less,” as used in the deed from John S. and Mary AYatson to Chadwick, conveyed the one-half undivided interest of Mrs. AVatson in the entire 200 acres. Mrs. Watson owned an undivided one-half interest in the 200 acres and by this specific language conveyed that interest. And while it is true that the general rule, “that the purpose of the courts in the construction of deeds is to ascertain the intention of the parties applies to the description of the land as well as to other parts of the deed,” still there is no occasion for applying that rule of construction where the intention appears from the language of the deed, or the attending circumstances. 14 Texas Jur. 1027, § 234; Woods v. Selby Oil & Gas Co. (Tex. Civ. App.) 2 S.W.(2d) 895, affirmed (Tex. Com. App.) 12 SW.(2d) 994; Holman v. Houston Oil Co. (Tex. Civ. App.) 152 S. W. 885; Id. (Tex. Civ. App.) 174 S. W. SS6, error refused; Hunt v. Evans (Tex. Civ. App.) 233 S. W. 854; Michon v. Ayalla, 84 Tex. 685, 19 S. W. 878.

But appellant seems to contend that the above language, “all our right, title and interest in and to an undivided one-half,” is rendered ambiguous by the language of the partition agreement appended to the deed, and that parol evidence explaining the basis of that partition was admissible, and as showing that grantors only intended to convey a one-half interest in the 100 acres awarded to Chadwick. This contention is not sustained. The appendage does not appear in the statement of facts, but is referred to by appellee as being correctly quoted in appellant’s brief. However, the language of the appendage does not attempt to limit or qualify the description of the land contained in the granting clause of the deed. It may be inferred from its recitations that' the parties to the deed and the Hughes children are tenants in common of the 200-acre tract, and that Mrs. Watson as a tenant in common has conveyed her entire interest to another- tenant in common for a recited consideration, and to set apart to him one-half the land. The record title to the other undivided one-half interest was in the two Hughes children. One of them later conveyed the specific 100 acres in controversy to appel-lee’s predecessor in title, thereby recognizing and ratifying the partition agreement between her cotenants and accepting the remaining 100 acres as her own; and the other conveyed a seven-tenths interest in the entire 200 acres to appellee’s predecessor, thereby clearly conveying all his interest in the 100 acres in controversy. Appellant’s predecessors in title recognized the partition agreement by conveying to appellant three-tenths of the specific 100 acres in question, referring in the deed to the 100 acres awarded to Chadwick. Chadwick took possession of and inclosed the 100 acres awarded to him. Such facts and circumstances indicate a purpose on the part of the parties to the deed to take and appropriate the 100 acres, one receiving the land and the other the consideration paid, in satisfaction of their interest in the whole tract and to leave the other 100 acres or one-half part to be appropriated by the other tenants in common, who were the record owners of the remaining one-half interest in the land.

The power of one eotenant to convey a definite portion of a tract of land to his co-tenant, such portion representing his interest, is settled in this state. Osborn v. Osborn, 62 Tex. 405. And it is also settled that such conveyance will be enforced in equity whore the cotenant takes possession of'specific portions and all other cotenants ratify or acquiesce therein. A case very similar in point of fact is that of Easterling v. Simmons (Tex. Civ. App.) 293 S. W. 690, 694, error refused, which held as follows: “When Stedman fenced the 10⅝ acres and began the use and enjoyment of the same he became equitably entitled to have that identical part of the tract set aside to him in satisfaction of his interest therein whenever a partition between him and the minor, Rosa Bounds, was had. Osborn v. Osborn, 62 Tex. 495, 497; Robinson v. McDonald, 11 Tex. 385, 390, 62 Am. Dec. 480. Such action indicated a purpose on his part to take and appropriate that identical land in satisfaction of his interest in the whole tract, and to leave the uninclosed part to be appropriated by Rosa Bounds, who owned the remaining interest therein.”

Manifestly this was the purpose of Mrs. Watson and Chadwick, and since the other tenants acquiesced in and ratified the partition, all the right, title, and interest of all these tenants in common in the 100 acres in controversy was conveyed to appellee’s predecessors in title.

But, if it should be held that the partition agreement appended to the deed rendered ambiguous the language of the granting clause, then it avails appellant nothing under the rule of construction that even if there is ambiguity in a deed, and that it is capable of two constructions, that the one will be adopted which is most favorable to the grantee, and which conveys the largest interest that grantor could convey in the land. Rettig v. Houston West End Realty Co. (Tex. Com. App.) 254 S. W. 765; Couch v. Southern Methodist University (Tex. Com. App.) 10 S.W.(2d) 973. From our above conclusions we hold that the trial court did not err in refusing to admit in evidence the testimony of W. M. Watson, because the same would vary the terms of the deed as to the description of the land or interest therein intended to be conveyed, which deed was not ambiguous when read in its entirety and in the light of the attending circumstances.

The trial court held that appellee had title to the land in controversy by the five, ten, and twenty-five year statutes of limitations (Vernon’s Ann. Civ. St. arts. 5509, 5510, 5519). This holding is attacked by appellant upon the ground that the evidence showed him to be a cotenant with appellee, and that there was no evidence showing an actual ouster of appellant of the technical possession given him by law as such cotenant. We do not sustain the contention. In 1894 and 1S96, the two Hughes children conveyed by deeds recorded in 1895 and 1898 the 100 acres in controversy to W. M. McDonald, ap-pellee’s father and predecessor in title. McDonald went into possession of the entire 100 ácres immediately or at least in 1894, and he and his heirs remained in continuous possession, using, paying taxes on, and claiming the entire 100 acres. It may be noted also that the "deed of Mrs. Maxwell to W. M. McDonald, executed in 1894, and recorded in 1895, conveyed “all right, title and interest in and to” the 100 acres in controversy to McDonald. The partition executed by appellee’s brother to her, dated and recorded in 1915, conveyed “ail right, title and interest in and to” the 100 acres in controversy. Appellee has been in continuous possession since before the execution of that partition deed of the entire 100 acres, has cultivated and used the land, paid taxes each year before they were delinquent, and has claimed the land adverse to every one, and the land has been under the fence of appellee since 1921 or 1922. This suit was instituted in 1930, and appellant answered in November, 1930, setting up his cross-action. , These facts show title in ap-pellee by the five, ten, and twenty-five year statutes of limitations, under the holding of Olsen v. Grelle (Tex. Com. App.) 228 S. W. 927, as follows: “That the cotenant not in possession must hdve actual knowledge of the fact that the cotenant in possession is disputing his right to the property, or such cotenant’s possession and assertion of hostile claim must be so notorious as to authorize the presumption that the other joint owner had knowledge thereof, is well established in this state. Stiles v. Hawkins [Tex. Com. App.] 207 S. W. S9, and authorities there cited. But it is equally as well established that where one goes into possession of property under deed, or deeds, executed by a cotenant, and purporting to convey the entire property, such possession is hostile to that of the cotenant, and he is charged with knowledge of the hostile character thereof.”

So, if it be conceded that appellant and his predecessors in title were cotenants with ap-pellee and her predecessors in title, the lat-ters’ possession and assertion of hostile claim were so open and notorious for nearly forty years as to authorize the presumption that the appellant and his predecessors in title had knowledge thereof under the rule above quoted. The second rule above quoted is also applicable here. If Mrs. Maxwell was a coten-ant of appellant’s predecessors in title as claimed, she conveyed by deed, dated in 1S94, and recorded in 1895, the entire 100 acres in controversy, and her grantee, appellee’s predecessor in title, went into possession under that deed, and “such possession is hostile to that of the cotenant, and he is charged with knowledge of the hostile character thereof.” Olsen v. Grelle, supra; Little v. Wagner (Tex. Civ. App.) 5 S.W.(2d) 232; McBurney v. Knox (Tex. Civ. App.) 259 S. W. 667; Huling v. Moore (Tex. Civ. App.) 194 S. W. 188.

■It may also be noted here that while the appellant apparently claims to be a tenant in common with appellee, his title was not acquired until after the title of appellee, and appellant’s predecessors in title were therefore the cotenants of appellee, and there is nothing to indicate that they did not have full notice of appellee’s claim. Eastham v. Gibbs, 58 Tex. Civ. App. 627, 125 S. W. 372.

The other evidence shows that appellee repudiated personally the claims of appellant some fifteen or twenty years prior to the time he filed his cross-action.

We find no error in the judgment, and it is affirmed.

Affirmed.


author: LESLIE, J.

text:
    HULSEY et al. v. HULSEY et al.
    No. 877.
    Court of Civil Appeals of Texas. Eastland.
    July 10, 1931.
    Rehearing Denied Sept. IS, 1931.
    Scarborough, Ely & King, of Abilene, for appellants.
    Wijgstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.
   LESLIE, J.

At the time of his death, March 20, 1910, J. P. Hulsey owned 40 acres of land in Taylor county, Tex. This is a suit by T. J. Hulsey and five of the heirs against L. K. Hulsey, feme sole, and six of the heirs, seeking a partition of this tract of land. The litigants are the sole heirs, either as children or grandchildren of the deceased, and the married women are joined by their respective husbands. The defendant L. K. Hulsey answered by general denial and a plea of ten years’ limitation as against the plaintiffs, and also the other heirs who are codefendants with her in the suit.

The case was submitted to the jury on special issues which_were answered in favor of the appellee L. K. Hulsey. Upon this verdict a judgment was rendered in her favor, awarding her the lands upon the theory that she had matured a limitation title under said statute. From this judgment appeal is prosecuted by the plaintiffs. The other heirs of J. P. Hulsey, deceased, made codefendants with L. K. Hulsey in the suit, have acquiesced in the judgment favorable to her and are prosecuting no appeal.

-In answer to the issues the jury has found that the appellee L. K. Hulsey had been in peaceable and adverse possession of the 40 acres of land as against the plaintiffs and her codefendants, cultivating, using, and enjoying the same for a period of more than ten years preceding the filing of this suit on March 15,1929; and that all the plaintiffs and codefendants of L. K. Hulsey had knowledge of the fact that she was claiming said land adversely to them for a period of ten years prior to the filing of this suit. The rulings of the trial court and the judgment thereon are attacked hy three assignments of error and three propositions. In these propositions it is contended that the court erred: (1) In refusing to give appellants’ peremptory insti'uction for a verdict; (2) that, in order for a cotenant to hold property under the statute of limitation against his contenants, it was necessary for the evidence to show an adverse holding against the cotenant, and there being no evidence to support the verdict of the jury on the issue’Of ten years’ limitation, the court should have instructed a verdict for the appellants; ,and (3) the parties being co-tenants, the evidence on the part of Miss L. K. Hulsey failed to show any notice to the appellants that she was holding the property adversely to their rights.

We consider these propositions in 'the light of the assignments and as presenting in different forms but a single question, that being that there is no evidence to support the verdict of the jury upon the fact issue to which the respective propositions are addressed. The points presented call for a consideration of the testimony adduced upon the trial. The statement of facts is not lengthy or complicated, and we have carefully read the same with a view to determine whether or not the findings of the jury are supported by the testimony. Except possibly as to Mrs. Sarah Woods, plaintiff, we think it is.

No useful purpose could be served by stating the testimony in detail. Briefly, and in substance, it appears that J. P. Hul-sey, deceased, bought the land in controversy and he and L. K. Hulsey, an unmarried daughter, resided upon the same as their home until his death, about March 10, 1910. For a period of time thereafter she occupied it in person, and about 1914, she, by her" own efforts, paid off seven of the unpaid purchase-money notes remaining. against it after her father’s death. A foreclosure on the property was impending, and after an unsuccessful effort to enlist the aid of several of the other heirs, if not all of them, in lifting this incumbrance, she borrowed the money and paid off tbe debt.' Prom and after that date she testifies she has made adverse claim to the property; that she has been in exclusive possession of it, claiming it as her individual property, paying the taxes, and keeping the house and fence in repair. The testifies to an adverse possession, either in person or through tenants and for a period of time exceeding ten years prior to the filing of the suit. Her testimony bears the construction that her possession was exclusive, hostile in nature to the rights of the appellants, and that she brought notice of such character of claim and possession home to them. In other words, her testimony covers the ground essential to the maturing of a valid claim of title under the ten years’ statute of limitation as against all the heirs (Rev. St. 1925, art. 5510), unless, as stated, it be Mrs. Sarah Woods, and the issues of fact involved having been properly submitted to the jury, resolved in favor of the appellee E. K. Hulsey, and the nature of the testimony being such as to give reasonable support to the jury’s findings, it is not within the province of this court to set aside the verdict and the judgment based thereon.

As indicated, we have some doubts that the nature of appellee’s possession and the notice of her adverse claims to the land were ever brought home to Mrs. Sarah Woods, who has at all times resided in the state of Georgia, but as to her we have concluded that the judgment must likewise be affirmed for tbe following reasons: She joined all of the Other appellants in making a joint motion for an instructed verdict and also a joint motion to set aside the verdict of the jury and the judgment thereon on the grounds that the evidence “wholly failed to show any notice to the plaintiffs” of an adverse claim. The facts of the ease did not justify such a contention. The motion was not good in the case of a majority of the plaintiffs, and we do not think it was good as to any unless it be the plaintiff Woods, but since she has made common cause with the appellants in making a joint motion with them in the above respects and for the same reasons, and did not ask any instruction exclusively in her own behalf or make any such motion, the said motions were properly overruled and for the same reason the assignments and propositions must be overruled as to her. Her situation is like that of one of tbe parties involved in the following cases: Missouri, K. & T. Ry. Co. v. Brown Tex. Civ. App.) 155 S. W. 979, 980; Martin et al. v. Burr et al. (Tex. Civ. App.) 171 S. W. 1044 (point 10).

In these cases joint assignments to the court were urged, and, although they were correct as to some of the litigants, they were not as to others. It is there said: “These assignments are joint assignments, and therefore, if the verdict and judgment find support as to either appellant, the assignments must be overruled.”

From what has been said it follows that this judgment should therefore be in all things affirmed. For the reasons assigned it is so ordered.


text:
    RICH et ux. v. WALKER-SMITH CO.
    No. 7623.
    Court of Civil Appeals of Texas. Austin.
    July 25, 1931.
    Rehearing Denied Sept. 23, 1931.
    See also 26 S.W.(2d) 401.
    Jesse G. Foster, of Raymondville, and Calla- ■ way & Callaway, of Brownwood, for appellants.
    McGaugh & Darroch and E. M. Davis, all of Brownwood, for appellee.
   McClendon, c. j.

This was a suit brought by appellee to fore- ■ close vendor’s lien notes upon property that -was originally the business homestead of appellants. The appeal is from a judgment in favor of appellee upon a directed verdict. The controversy arose out of the following facts, which are without material conflict in the evidence:

Rich was eng'aged in the retail mercantile business, and appellee was a wholesaler. On July 20, 1924, the property was conveyed by Rich and wife to appellee by general warranty deed for a recited consideration of $5,000. At that time Rich was indebted to ap-pellee to the extent of about $9,000 for merchandise, upon open account, which was credited with the $5,000, the consideration stated in the deed. May 20,1925, appellee reeonvey-ed the property to Rich in consideration of five vendor’s lien notes aggregating $5,000. The deed was not recorded, and it was probably 'lost. November 22, 1926, Rich was adjudged a voluntary bankrupt. He received his dis-' charge in bankruptcy on June 6, 1927. February 19, 1927, appellee sued appellants in the district court of Brown county, seeking foreclosure of the vendor’s lien notes. March 8, 1927, appellants answered in that suit, alleging that the property was their business homestead, and that the deed of June 20, 1924, was in fact a mortgage and was therefore void. Other irregularities with reference to the execution of that deed were . alleged. March 3, 1927, appellants sued appellee in trespass to try title, to recover the property, in the district court of Haskell county, in which county the property was located. On October 28, 1927, a compromise of all matters in dispute in the two suits was arrived at between appellants and appellee, which was embodied in a written instrument executed and acknowledged by both appellants. This instrument recited the 1924 deed, the 1925 reconveyance and execution of the vendor’s lien notes, and the controversy which had arisen in regard to the validity of the lien involved in the two suits, and that it was ‘‘the desire of all parties to settle and adjust all matters in controversy in both suits.” Rich and wife ratified and confirmed both conveyances, the date of payment of the notes was extended, and additionally appellee agreed to sell Rich $650 worth of merchandise for which Rich was to execute his note. Each suit was to be dismissed at the cost of the plaintiff. This agreement was carried out. The dismissal order in the suit brought by appellee recited that the plaintiffs and* defendants came by their attorneys, “and announced to the court that the matters in controversy in this suit had been settled, and that plaintiff would not further prosecute said suit, and asked that the same be dismissed.”

Appellants’ contentions may be reduced to two propositions:

(1) That under the evidence of Rich, that the 1924 deed was in fact a mortgage for the security of a debt, tbe deed was void as an attempt to create a mortgage upon tbe homestead; and, being void, it was not subject to ratification.

(2) That tbe evidence raised tbe issue of fraud in tbe compromise agreement, in that Rich and wife testified that tbe instrument evidencing tbe compromise agreement did not represent tbe true agreement of tbe parties, which was that appellee should deliver to Rich $5,000 in merchandise, and additionally should give him a $5,000 line of credit, instead of only $650, as recited in tbe instrument.

Tbe first contention is overruled under tbe following elementary legal principle: “The compromise of a doubtful right is a sufficient foundation of an agreement, and such compromise will not be set.aside though it should afterwards appear that the party taking something under the contract was really entitled to nothing, provided the compromise was in good faith, and without concealment, fraud or misrepresentation.” Camoron v. Thurmond, 56 Tex. 22. gee, also, 9 Texas Jurisprudence, p. 343, § 9, and authorities there cited.

The second contention is overruled because the evidence introduced and tendered was insufficient to establish fraud, in that it showed conclusively that Rich knew the contents of the instrument at the time he signed it, and with such knowledge he accepted all the benefits of the contract. Rich’s own testimony is unequivocally to this effect, and it would serve no useful purpose to set it out'in detail here.

In this connection we sustain the two following propositions of appellee, with the supporting authorities:

“Omission of a part of a previous or contemporaneous oral agreement from the written contract, where the complaining parties, at the time of signing, knew that all the agreement was not embraced in the contract, is not by mistake, and said complaining parties cannot avoid the same by pleading fraud, accident or mistake. Tom v. Roberson (Tex. Civ. App.) 182 S. W. 698, 700; Burchill v. Hermsmeyor (Tex. Civ. App.) 212 S. W. 767; Hart v. Joplin (Tex. Civ. App.) 146 S. W. 1075; Tex. Pacific Coal & Oil Co. v. Stuard (Tex. Civ. App.) 7 S.W.(2d) 878-882; Van Zandt v. Desdemona Independent School Dist. (Tex. Civ. App.) 283 S. W. 626; Boesen v. Potter County (Tex. Civ. App.) 173 S. W. 462; Commonwealth Bonding & Casualty Ins. Co. v. Barrington (Tex. Civ. App.) 180 S. W. 936, 939.”
“Where a written contract speaks in unambiguous terms, and both parties thereto understand the terms thereof, any parol contemporaneous evidence is inadmissible to contradict or vary the terms of such instrument. Luck-enbach v. Thomas (Tex. Civ. App.) 166 S. W. 99; Tom v. Roberson (Tex. Civ. App.) 182 S, W. 698; Lane v. Urbahn (Tex. Civ. App.) 265 S. W. 1063; Davis v. Driscoll, 22 Tex. Civ. App. 14, 54 S. W. 43, 44; East Line & R. R. R. Co. v. Garrett, 52 Tex. 139; Commonwealth Bonding & Cas. Ins. Co. v. Barrington (Tex. Civ. App.) 180 S. W. 936, 939; Tex. Pacific Coal & Oil Co. v. Stuard (Tex. Civ. App.) 7 S.W.(2d) 878; New Amsterdam Casualty Co. v. Harington (Tex. Civ. App.) 11 S.W.(2d) 533.”

The trial court’s judgment is affirmed.

Affirmed.