author: WALTHALL, J. PELPHREY, C. J.

text:
    PADEN v. HUDSON.
    No. 2515.
    Court of Civil Appeals of Texas. El Paso.
    March 26, 1931.
    Rehearing Granted April 23, 1931.
    Knollenberg & Cameron, of El Paso, for plaintiff in error.
    R. B. Rawlins, of El Paso, for defendant in error.
   WALTHALL, J.

In this case L. Hudson, a proposed purchaser of land, sued J. B. Paden, a real estate agent or broker, to recover the sum of $500 earnest money advanced and paid by Hudson under the terms of a contract between Hudson, as purchaser of real estate, and M. O. O’Hara and, Mrs. Alda C. O’Hara, the sellers of the real estate.

Plaintiff’s petition represents that he entered into a purchase contract with Paden acting as agent for the O’Hara farm located in Dona Ana county, N. M., and deposited with Paden the sum of $500 as earnest money and evidence of good faith in the purchase of said farm, that Paden was acting as agent for the owner, Mrs. M. C. O’Hara, and that said earnest money was to be applied on the purchase price of said farm. The petition alleged failure of the title, in that the O’Haras could, not convey a part of the contracted lands, the title being in other parties not parties to the purchase contract sued upon; the petition alleges a demand and refusal of Paden to return the earnest money paid.

Paden pleaded general denial; specially denied any indebtedness to Hudson; that in all the transactions with Hudson he was acting as the agent of O’Hara; and that any money he received of Hudson was received as such agent. Further answering, Paden pleads the written purchase-money contract for the sale of said land entered into between Hudson and M. G. and Alda S. O’Hara, and the provisions of said contract.

The case was tried to the court without a jury. The court made findings of fact and conclusions of law, as follows:

“I find that sometime in the early part of September, 1929, Mr. H. M. Walker, an employee of the defendant, J. B. Paden, carried the plaintiff, T. L. Hudson, to Dona Ana County, New Mexico, and showed him a farm which the defendant had listed for sale consisting of 198 acres, more or less, belonging to one, O’Hara; and I find that after some further negotiations, on the 23 day of September, 1929, the following contract was entered into :
“Paden
“Phone 1700
“Realty Company.
“308 Texas st. El Paso, Texas.
“Earnest Money Receipt and Contract of Sale.
“El Paso, Texas, Sept. 23,1929.
“Received of T. L. Hudson, the sum1 of $500.00 (Eive Hundred and no/100 Dollars), earnest and part purchase money to bind this contract of sale to himself of the following described property: 198 acres, more or less, known as the O’Hara farm, about five miles West of Las Cruces. For the total price of ($27,500.00)' Twenty seven Thousand Five Hundred Dollars, on the following terms: ($5000.00) Five Thousand and No/100 Dollars cash, including the earnest money, upon delivery of the Deed and the balance as follows: For which the purchaser is to execute his vendor’s lien notes, 'bearing interest from date thereof at the rate of 8% per annum, notes payable as follows: $2000.00 per year for five years, balance the fifth year. Commission to be 3¾<%.
“Deed to be made to T. L. Hudson or order and to be General Warranty. All water assessments, taxes, paving liens, rents and insurance to be pro rated to date of sale and all taxes prior to the year of sale to be paid by seller. An abstract of Title or Guarantee Title to be furnished by the seller at his expense showing him to have a good, merchantable title to the above property, or title to be made so; if title of said property be found defective, ninety days additional time shall be given the owner or agents to perfect same; if title cannot be made merchantable, all money shall be refunded. On the other hand, it is hereby agreed that if the purchaser shall fail or refuse to complete his part of his contract according to its terms and conditions, then the purchaser shall forfeit the earnest money to the seller and the forfeiture of said earnest money by the purchaser under this contract shall not in anywise limit, impair or defeat the right of the seller to pursue and enforce this contract and to seek and recover further damages on account of such failure. The usual agreed commission shall be paid by the seller to the agents effecting this sale, and in any and all event, and the earnest money shall be applied upon payment thereof. All deferred payments shall be secured by deed of trust and the vendor’s lien retained in this Deed.
“This contract is made subject to approval of owner and the deal shall be closed as soon as possible.
“I accept the foregoing contract:
“M. O. O’Hara,
“Mrs. Alda 8. O’Hara, “Seller.
‘,‘T. L. Hudson, “Purchaser.”
“I find that in the month of December, 1929, the plaintiff was informed by Fred C. ICnollenb.erg, an attorney of El Paso, that he would have to take what the witness termed a ‘minor’s deed’ to a part of the land described in the earnest money receipt.
“I find that he thereupon returned to defendant’s office to ascertain what the trouble was and that one, Wells, an employee of the defendant, took him to Dona Ana County, New Mexico and introduced him to Mr. and Mrs. O’Hara and that Mr. and Mrs. O’Hara carried him out and showed him over the 198 acres described in all the pleadings herein, as the O’Hara farm.
“I find that near the center of the O’Hara farm was nine acres of land, the title of which was vested in a minor named Freudenthal.
“I find that Charles O’Hara, a son of Mr. and Mrs. O’Hara, had title to 20 acres of said land.
“I find that by actual measurement that there was 212 acres of land in tract,
“And-1 find that there was a failure of title as to the two tracts mentioned above.
“I find that plaintiff was able and willing .to complete the purchase of said land had the O’Haras been able to deliver to him a good and merchantable title, and that he would have done so.
“I find that Walker and Wells, the employees of defendant knew nothing about the title of the land nor the lines and the location of the land except such information as they could learn from maps and from information furnished them by the O’Haras, and that there is no evidence of bad faith in any manner whatsoever in their dealing with the plaintiff herein.
, “Conclusion of Law.
“I conclude, as a matter of law, that while the defendant, J. B. Paden, has done all that is necessary for' a real estate man to earn his commission, that there is nothing in the contract or earnest money receipt of September 23, 1929, that gives him a lien or any right-upon the $500.00 mentioned in said contract, which I find to be the same $500.00 involved in this controversy, and I, therefore render a judgment for plaintiff for that amount.
“J. M. Dea ver, Judge.”

On the above findings, the court entered judgment for - Hudson that he recover of Paden the sum of $500, from which Paden prosecutes this appeal.

Opinion.

The question presented here is as to the judgment that should have been rendered by the trial court on the facts found. Plaintiff pleaded that the purchase contract he entered into was with Paden, but the contract sued on, and the only contract found in the record, is one signed by the O’Haras, as seller, and accepted by Hudson as purchaser. Thq O’Hara-Hudson contract provides that, if the title is found defective, and cannot be made merchantable, all money shall be refunded. It further provides that “the usual agreed commission shall be paid by the seller to the agents effecting this sale, and in any and all events, and the earnest money shall he applied upon payment thereof.” It seems to us that only one construction can properly he put on that contract, viz. that on failure of title the seller must refund to Hudson the money paid, and that the earnest money paid must be paid by the seller to Paden, the- agent of the seller, in discharge of the commission.

The plaintiff’s petition in connection with the court’s findings shows that plaintiff, the purchaser, was ready, able, and willing to complete the purchase, and that Paden, as agent, had brought the seller and purchaser together in a written purchase contract of sale, so that by so doing the agent had earned his commission, which both seller and purchaser recognized in the contract, and agreed that the earnest money should be applied upon payment of the commission. The court found that there was no. evidence of bad faith in the transaction — the' O’Haras just could not convey a merchantable title. The trial court seems to have concluded that, as there was nothing in the earnest-money contract that gave Paden a lien or right to the $500, judgment should be for Hudson and against Paden. The question of the agent’s lien on the earnest money paid does not arise, we think, out of the contract or from the facts found. The parties were dealing with a known principal, and the contract here was made between the purchaser and the principal. There is no statement in the contract that the earnest money was paid to Paden by Hudson. It is only by an inference in Pad'en’s answer that he received - the earnest money from Hudson, and alleges that he paid the $500 to O’Hara, and in the written contract O’Hara acknowledged the receipt of the money from Hudson. But, conceding that Hudson paid the earnest money to Paden, there Is no provision in the earnest-money contract to the effect that the $500 deposit was to be retained by Paden and returned to Hudson by him, in the event of failure of title, hut, as appears from the contract, a directly opposite disposition was by Hudson and O’Hara agreed to be made of the earnest-money deposit.

The law is well settled that an agent standing in the position of a stakeholder, or escrow depository, receives money to be paid over on the happening of a contingency or the performance of certain conditions, and makes payment to the principal under such conditions he would be liable to the party found to be entitled to receive the money. It is not claimed here that such condition was made to appear by parol. The trial court made no such finding. The earnest-money contract contains no such obligation. In fact, there is no contract, parol or in writing, in the record between Hudson and Paden. Under Hudson’s counter proposition 4, it is said: “The court found that the $500.00 was given to Paden, defendant below.” And that: “there is no evidence that the money was turned over to O’Hara." And under counter proposition 5 it .is said: “The court found, in substance, that Paden had Hudson’s money.”

The statement of facts is not brought up, and we do not know what the evidence shows.

We have found no finding to the effect stated in the record either in the court’s finding or in the judgment. The trial court simply transcribed the written contract between O’Hara and Hudson, and made it a part of the court’s finding, but made no finding that Paden was given the money, or that Paden had Hudson’s money.

However, we think it immaterial whether Paden received the money from Hudson and retained it, or whether he turned it over to O’Hara, and subsequently received it from O’Hara. The first words of the written contract between O’Hara and Hudson acknowledge that O’Hara had received of Hudson the $500, and we presume that the money was given to Paden, but we must presume also, in the absence of any other showing, that it was given to him by O’Hara under the terms of the contract. Hudson, suing on the contract, makes no other contention. Paden's liability to Hudson must be determined by the contract sued on. There is not the slightest suggestion in the record of any agreement, understanding, or contract between Hudson and Paden as to the receipt of, or disposition to be made of, the money deposit. All that we find in the record as to the receipt of, or disposition to be made of, the money deposit, is in the contract between O’Hara and Hudson,' in which the receipt of the money by O’Hara is acknowledged, and in the contract O’Hara and Hudson contract with each other with respect to its receipt and disposition, and in which they agreed as above stated. Paden is not a party to the contract.

We have concluded that the court was in error in entering judgment.

Hie case is reversed, and judgment is liere rendered in favor of Paden, appellant.

On Rehearing.

PELPHREY, C. J.

We are of the opinion that, instead of our rendering judgment, the cause should he reversed and remanded for retrial.

There is no statement of facts in the record, and we think the case has probably not been fully developed, and, in the exercise of the discretion vested in such cases, the cause will be remanded. This is permissible, even though an amendment to the pleadings may be necessary in the lower court.

We ar.e still of the opinion that upon the record here presented the judgment of the lower court must be reversed for the reasons stated in the original opinion.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    HOUSTON E. & W. T. RY. CO. et al. v. SOUTHERN PINE LUMBER CO.
    No. 2016.
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1931.
    Rehearing Denied April 29, 1931.
    Arterbury & Coolidge and Baker, Botts, Andrews & Wharton, all of Houston, and Fairchild & Redditt, of Lufkin, for appellants.
    R. E. Minton and Tom F. Coleman, both of Lufkin, for appellee.
   WALKER, J.

This was an action by appellee against appellants for damages for the loss of twenty-five head of cattle in a large shipment made by appellee from Rayville, Tex., to Aguilares, Tex., and for the freight paid by appellee on the dead cattle. The grounds of negligence alleged were the failure of appellants to remove dead cattle from the cars at Yoakum, Tex., after being notified that dead cattle were in the cars and after being requested so- to do, and the bad condition of the roadbed over which the cattle were being transported, both of which acts of negligence were alleged to be proximate causes of the damages sued for. It was further alleged that certain of the cattle were so injured in the shipment that, after being delivered at Aguilares, they died as a result of the injuries. Appellants answered by general and special demurrers and general denial.

The jury found that twenty-five head of appellee’s cattle were killed by the negligence of appellants, and that these cattle were of the reasonable market value of $25 per head at Aguilares. They also found that the failure to remove the dead cattle from the cars was negligence, and that the failure to remove the dead cattle from the ears, together with the condition of the roadbed, was the direct and proximate cause of the death of the cattle. On the verdict judgment was entered in appellee’s favor for twenty-five head of cattle at $25 per head and for $40 freight. This is a second appeal in this case. For a fuller statement reference is made to the opinion on the former appeal. Railway Co. v. Southern Pine Lmbr. Co. (Tex. Civ. App.) 6 S.W.(2d) 418.

Opinion.

Appellants present their appeal on three propositions, saying in connection with these propositions that they do not want the judgment of the lower court reversed and the cause remanded for a 'new trial, but only that it be reversed and rendered or reformed and affirmed. Their propositions are as follows:

First. It was just as reasonable to conclude that the cattle were killed through a nonaetionable cause as through an actionable cause. It is correct to say that no liability is shown where an accident is as reasonably attributable to a nonaetionable cause as to one that is actionable. Gulf, Colorado & Santa Fe Railway Co. v. Davis (Tex. Civ. App.) 161 S. W. 932. But that proposition does not control this case. When the shipment of cattle reached Yoakum, appellee’s agent found that cattle were down in certain of the cars and some of them dead. He notified appellants of this fact and requested that the dead cattle he removed from the cars. This request was refused. The testimony was that this condition rendered it more dangerous to the remaining cattle. There was also testimony that the condition of the roadbed contributed to the injury to the cattle in view of the way they were loaded. There was also testimony that certain of the cattle, after being delivered at Aguilares, died as the result of injuries received while they were being shipped. Eor the reasons stated appellants were not entitled to an instructed verdict.

Second. Appellants further contend that at the most the evidence showed that only eight head of cattle were negligently killed. Though contending by this proposition that the largest number appellee could claim damages for was eight, by their thirtieth assignment of error they say that “the largest possible number that is shown under the evidence to have died * ⅜ * as a result of the alleged act of negligence ⅜ * ⅜ is twelve head of cattle.” The contention is further made that appellee failed to show that it lost twenty-five head of cattle. We do not review the evidence on this contention because we find in appellants’ thirty-sixth assignment of error this statement: “The evidence shows that twenty-five head of cattle died.”

The jury found that twenty-five head died as a result of the alleged acts of negligence. We cannot say, after carefully review--ing the testimony, that this finding is without some support in the evidence. Appellants’ relief against this finding was to ask for a new trial, which they expressly say they do not want.

Third. It is further contended that the court erred in its charge to the jury in submitting certain issues which appellants say were not raised by the pleadings and evidence. If the record sustained this proposition, the assignment would be one of reversible error, but, since appellants have expressly stated they do not want the ease reversed, there is nothing in this proposition for us to review.

We agree with appellants that the court erred in entering judgment against them for the $40' freight on the dead cattle.' This amount was paid by appellee as freight for the transportation of the dead cattle from Rayville to Aguilares. The market value of •the cattle at Aguilares was $25 per head. Therefore it appears as a matter of law that the freight charges entered into and became a part of the market value sued for and found by the jury.

It follows that the judgment of the lower court should be reformed by eliminating therefrom the sum of $40, and, as reformed, affirmed.

Reformed and affirmed.


author: SMITH, J.

text:
    MARTIN v. DE LA GARZA.
    No. 8526.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1931.
    Rehearing Granted March 18, 1931.
    Rehearing Overruled April 29, 1931.

      Bismark Pope, of Laredo, for appellant.
    Mann, Neel & Mann, of Laredo, for appel-lee.
   SMITH, J.

On original disposition this court reversed the judgment upon the conclusion that there was no evidence raising the issue upon which the judgment below was predicated. Upon rehearing we have very carefully reconsidered and analyzed the evidence, and have reached the conclusion that we were in error in the holding mentioned.

We reiterate the statement made in the original opinion, that “Appellee conceded, by affirmative pleadings to that effect, that he was a member of decedent’s family and household ; that he was a nephew and godson of decedent, and that a ‘great love and affection’ existed between them. The rule applicable in such situation was well stated by Associate Justice Moursund for this court to be: ‘The rule is well settled that, where persons are living together as one household, services performed for each other are presumed to be gratuitous, and an express contract for remuneration must be shown or that circumstances existed showing a reasonable and proper expectation that there would be compensation.’ Rockowitz v. Rockowitz (Tex. Civ. App.) 146 S. W. 1070, 1071.” This case must be tested by that rule, and in order to entitle him to recover it was incumbent upon appellee to establish by evidence sufficient to take the case to the jury that “circumstances existed showing a reasonable and proper expectation that there would be compensation” for the services he rendered his uncle. Our conclusion is that ap-pellee met that requirement. As the lips of the promisor had been closed in death, and the promisee was cut off from testifying about transactions had with the promisor, any agreement or understanding had between them in private could not be proven by direct evidence, rendering it necessary to resort to circumstances and the acts and words of the parties apart from each other in order to ascertain the true facts. In such case every circumstance tending to disclose the attitude and intent of the parties was admissible. Pounds v. Minter (Tex. Com. App.) 13 S.W.(2d) 351; Von Carlowitz v. Bernstein, 28 Tex. Civ. App. 8, 66 S. W. 464; Clarkson v. Whitaker, 12 Tex. Civ. App. 483, 33 S. W. 1032. With these several rules in mind, we will state the evidence from appellee’s standpoint, as must be done in view of the jury finding in favor of appellee thereon:

It appears from the record that appellee was taken into decedent’s home at the age of eighteen and attended school from there for two years. Appellee then worked in various positions for two years, when he obtained employment in the Laredo post office, and during the succeeding ten years, up to the time of decedent’s death, he continued to fill that position, as he still does. During the whole period of twelve years he worked steadily, on substantially full time, drawing substantial salaries, and during all that period, except for two or three months at one time, roomed at the decedent’s home, but took his meals elsewhere, at his own expense. He paid the house servant to take care of his room. The decedent, was in ill health during that period, particularly in later years. He suffered with rheumatism, which gradually grew worse, so that, at least during the last few years of his life, he was unable to leave his bed. His condition was rendered more difficult by some sort of inability to control the functions of his body, and was of such nature that his women servants refused to attend him, and left such attention to appellee, to whom the decedent looked for, and of whom he exacted, such services. Appellee performed these services throughout the period they were required. He was always subject to the old man’s call, and answered his calls throughout the nights, for which purpose he generally remained indoors, denying himself the relaxations and social recreations open to and generally indulged in by the young men of his time". At one time, on account of the presence of a tubercular in decedent’s home, appellee obtained a room elsewhere for a period of three months, but visited and gave attention to the decedent, served his needs during that period, and finally returned to the home at decedent’s request. Por a period of a year or two he brought his younger brother to decedent’s home, and maintained him there at ■appellee’s own expense for the purpose of having him care for decedent in the latter’s helpless condition. These duties were of such unpleasant and repulsive nature that the younger brother ran away from them, and went to another city to live, and the whole burden fell back upon appellee. At one time appellee contemplated moving to another city to better his condition, but decedent persuaded him to remain and care for the latter as he had been doing. Appellee ran errands for decedent, paid his taxes for him, borrowed moneys for him, collected rents for him, relieved him of all necessary tasks he could not himself accomplish. Appellee ministered to the decedent, rubbing liniments upon his rheumatic limbs, giving him his medicines, cleaning, washing, drying his person and clothes, cleaning his bed. These menial and revolting attentions and services were performed by appellee, notwithstanding decedent kept servants in the house. The decedent did not compensate appellee in any way for these services. But he often acknowledged them and their value to him by telling others he intended to compensate appellee therefor by leaving his estate to appellee at his death. It is true the jury found that decedent and appellee had no express or even implied agreement whereby the former was obligated to leave his entire estate to the latter, and the evidence was such as to warrant this finding. But it is equally true that by the declarations of his intention to devise his estate to ap-pellee in consideration of the latter’s services to him, the decedent thereby acknowledged that such services were performed, that they were of substantial value to him, and that appellee was entitled to compensation-therefor. So is it true that the decedent’s intention to compensate him was communicated to appellee at various times in one way or another, and that from these communications 'appellee was warranted in believing that decedent would compensate him in one way or another, and that he continued to perform the services in that belief. We conclude that all these facts and circumstances, when considered together, as they must be, were sufficient to take the issue to the jury, and that the jury’s findings thereon were conclusive upon the trial court, as it is upon this court. As the amount of the compensation was never expressed by the parties, the question thereof was for the jury, whose finding of $2,500 cannot be said to be unreasonable, as a matter of law, and is therefore likewise conclusive.

In the original opinion we expressed the conclusion that the testimony of appellee, that on a certain occasion he was offered and refused an advantageous position with a Tam-pico-bank, was inadmissible in the absence of further proof that decedent knew of such offer and induced appellee to decline it in - order that decedent might secure his continued services and compensate him therefor. We have concluded upon further consideration, however, that, even if this testimony was inadmissible as a • circumstance bearing upon the main issue in the case, which is doubtful, the error of its admission was too insubstantial to require reversal.

It appears from the record that during their deliberations some of the jurors discussed the fact of appellee’s disqualification as a witness to testify to transactions and conversations with the decedent, and speculated upon the assumed .probability that had ap-pellee been allowed to testify in such matters he would have testified that the decedent expressly agreed with him to compensate him for his. services. Appellant contends that this constituted such jury misconduct as to require reversal. We overrule this contention. It was natural that the jurors should indulge in such speculation as a part of the mental processes by which they arrived at their verdict. The courts will not examine into and analyze and overturn those processes for the purpose of setting aside verdicts, unless, indeed, it is shown that the jury have received and given weight to material testimony not in the record. .

Among the grounds set up in his motion for new trial, appellant urged certain newly discovered evidence. The trial court properly overruled this ground. The proffered testimony was cumulative of testimony given upon the trial by certain police officials, and was not of such nature as to justify the granting of a new trial for the purpose of letting in that testimony. Moreover, appellant did not set up any facts showing diligence towards discovering such testimony for use upon the -trial. It is true that appellant alleged in his motion for new trial that the proffered testimony “was not known to him prior to or at the time of the trial of this case, or at the time of the entry of judgment, and which he could not have learned prior to that time by the use of diligence and of which he has just come into knowledge.” These general conclusions as to diligence were insufficient in the absence of allegations of specific facts in support of those conclusions. It is not ■deemed necessary to discuss the remaining ■contentions urged in appellant’s brief, which will be overruled.

The original opinion rendered herein will be withdrawn, appellee’s motion for rehearing will be granted, and .the Judgment will be affirmed.


text:
    SCHMIDT et al. v. WILLARD.
    No. 2068.
    Court of Civil Appeals of Texas. Beaumont.
    April 24, 1931.
    Rehearing Denied May 6, 1931.
    D. E. O’Eiel and John A. Yeillon, both of Beaumont, for appellants.
    Crook, Lefler, Cunningham & Murphy, of Beaumont, for appellee.
   WALKER, J.

This suit was instituted in trespass to try title by the surviving children and grandchildren of Christian Borden and his wife, Elizabeth Borden, against Sarah J. Willard. While in the form of trespass to try title, the suit was in substance an action to construe the following clause of the last will and testament of Christian Borden, who died in 1899, to wit: “I give and bequeath to my beloved wife, Elizabeth Borden all and singular my entire estate both real and personal to her own use and benefit for and during her life time including our present homestead situated on Lot No. 319 in Block No. 50 in the City of Beaumont in Jefferson County, Texas, with authority for her to sell or otherwise dispose of same at any time she may see fit so to do, and in the event she may see fit to sell said homestead, then I direct that she shall pay Wm. Smith my beloved son-in-law $200.00 out of the proceeds of such sale, and that she shall have and keep the balance for her own use and benefit for and during her life time, and at her decease, the residue if any left shall be equally divided between of beloved children to-wit: Elizabeth Smith, wife of Wm. Smith; Susanna Solleder, wife of Andrew Sollider, Jacob Barden and Peter Bardon.”

This will was duly probated in 1902. Elizabeth Borden survived her husband more than •twenty years and had been dead four or five years when this suit was instituted. The homestead mentioned in the will was the community property of Christian Borden and his wife, Elizabeth, and is the property in Controversy. In 1911 Elizabeth Borden sold this property to Elmo Willard and the defendant claimed under that deed. The plaintiffs, as children and grandchildren of Christian Borden, sued as his heirs, claiming that they inherited through him his community half of the property described in the will. While the defendant answered by the several statutes ’of limitation, which the trial court found in her favor, we shall not review the evidence on those issues, but discuss" only the issue presented under her plea of not guilty; that is, the construction of the will. The judgment of the lower court was in favor of defendant denying the plaintiffs all relief. Prom that judgment they have duly prosecuted their appeal to this court.

By their first proposition they give the will the following construction: “The will had the effect of conveying to Elizabeth Borden a life .estate in and to the property with vested remainder in the surviving children, and Elizabeth Borden could not convey more than her own undivided one-half therein, and the life estate which she owned in the other one-half of the property, and the Court erred in rendering a judgment thereon.” This proposition is not a sound construction of the will. The authorities of this state fully sustain appellee’s counter proposition that the will “vested in the wife the unrestricted power to dispose of the whole estate.” King v. Bock, 80 Tex. 156, 15 S. W. 804; Feegles v. Slaughter (Tex. Civ. App.) 182 S. W. 10; Caples v. Ward, 107 Tex. 341, 179 S. W. 856; Orr v. O’Brien, 55 Tex. 149; Kilpatrick v. Cassel (Tex. Civ. App.) 19 S.W.(2d) 805; Eubank v. Moore (Tex. Com. App.) 15 S.W.(2d) 567. On the authorities cited Elizabeth Borden : clearly had the power to convey to Elmo Willard a good title to the property in controversy. The judgment of the lower court is therefore affirmed.

Affirmed.


author: PELPHREY, C. J.

text:
    GARNER v. LEMAR et al.
    No. 2501.
    Court of Civil Appeals of Texas. El Paso.
    March 19, 1931.
    Rehearing Denied April 16, 1931.
    J. A. Thomas, Louis D. Gayer, and Lloyd Kerr, all of San Angelo, and B. P. Howell, of Rankin, for appellant.
    W. B. Silliman, of Et. Stockton, Walaee Hawkins, W. H. Francis, and A. S. Hard-wicke, all of Dallas, and R. E. Seagler..and R. G. Baker, both of Houston, for appellees.
   PELPHREY, C. J.

G. S. White et al., the then owners of the soil, on November 30, 1925, executed a ten-year mineral lease on the west half of section 112, block 11, H. & G. N. Railway Company lands in Pecos county, Tex., to Jóhn Sealy and others, as trustees for the Magnolia Petroleum Company, with undivided delay rental at 25 cents per acre and a one-eighth oil and gas royalty reserved.

On October 9, 1925, White et al. leased to F. J. Ellyson for ten years the north half of section 122, block 11. This lease provided that 10 cents per acre of the delay rental should be paid to the land commissioner and 15 cents per acre to the landowners, and reserved a one-sixteenth royalty each to the state and owner of the soil.

A like lease was executed on the same date by the same parties on the south half of said section. John Sealy and the other trustees, on April 19, 1926, conveyed the lease on section 112 to the Magnolia Petroleum Company, a corporation. Ellyson, on November 21, 1925, assigned his lease on the south half of section 122 to the Pure Oil Company, and on January 4, 1926, assigned his lease on the north half of said section to the Gulf Production Company.

On October 6, 1926, G. S. White et al. conveyed the above lands, together with others, to the White Land & Cattle Company.

The following January the White Land & Cattle Company executed a mineral deed conveying the mineral estate in said land to H. E. Lemar, and assigned to him the unac-crued rentals and royalties.

Later Lemar conveyed by mineral deeds a one-fourtb mineral interest and royalty in sections 112 and 122 to Humble Oil & Refining Company, a one-balf mineral interest and royalty and all delay rental on tbe west half of section 112 to Magnolia Petroleum Company, a one-eigbtb mineral interest and royalty and one-eigbtb delay rental in section 122 to A. C. Butler, and a one-eigbtb mineral interest and royalty in section 122 to Gar-Tex Oil Company.

On January 19, 1929, tbe White Land &¡ Cattle Company conveyed tbe above sections to E. R. Carter, wbo, on tbe 2d day of April, following, conveyed the land to appellant, J. W. Garner.

Tbe deeds from tbe White Land & Cattle Company to Carter and from Carter to appellant both provided that they did not include tbe mineral rights on tbe land; it being understood that they bad been theretofore conveyed.

Appellant filed this suit in tbe district court of Pecos county against Lemar, Butler, Humble Oil & Refining Company, Magnolia Petroleum Company, and Gar-Tex Oil Company.

He alleged that he was tbe .“owner of tbe soil” within the meaning of articles 5367 and 5382, Revised Statutes of 1925; that on December 9, 1911, and January 30, 1907, respectively, tbe lands in question were a part of tbe public free school lands of the state of Texas and bad been classified as mineral and grazing lands; that thereafter they were sold with a reservation of the minerals to the state of Texas; that appellees had caused to be recorded in tbe deed-and lease, records of Pecos county certain pretended conveyances, transfers, and assignments' to them of all the oil, gas, and mineral rights appurtenant to said lands, including tbe pretended right to collect all lease moneys, bonuses, rentals, and royalties; that, acting under said conveyances, they have collected all tbe rentals accruing thereunder; that they are still claiming various interests in tbe mineral rights on the lands and claim tbe right to continue collecting the rentals on said lands and to appropriate the same to their Own use and benefit; that at the times of such pretended conveyances, appellees were not tbe “owners of the soil”; that, by reason thereof, such conveyances are null and void; that a cloud is cast upon the title of appellant by the pretended claims of appellees, thereby depriving him of bis rights in connection with tbe ownership of the lands, and that he has no adequate legal remedy, because the amount of his damages could not be accurately determined; that appellees never paid to tbe owners of tbe soil more than $24,560 for tbe twenty-four sections, and that be was ready, able, and willing to pay to appellees tbe sum of $918 as full compensation which they bad paid the owners of tbe soil for tbe minerals in tbe lands in question.

He prayed for judgment quieting bis title, together with all tbe rights and privileges to which be is in any way entitled in connection therewith, and for tbe removal of all clouds cast thereon.

Appellees answered by general demurrers, general denial, and pleas of not guilty, and alleging that tbe oil and gas leases executed by G. S. White' et al. to Magnolia Petroleum Company and to Ellyson are in full force and effect, that all covenants and conditions therein, including tbe payment of rentals and royalties to tbe state, have been complied with, and that appellant purchased the surface estate subsequent to and with full knowledge of tbe mineral deeds, and that the surface estate was impressed by express reservation with their rights, titles, and interests. The case was submitted to- tbe court without the intervention of a jury and upon hearing, the court rendered judgment that appellant take nothing.

From that judgment this appeal has been prosecuted.

Opinion.

Appellant, in bis brief, presents seven propositions of law upon which be depends for a reversal of tbe judgment; but, as we view tbe record, tbe rights of tbe parties can be determined by ascertaining the correct answer to tbe following questions: (1) Are tbe rights secured to tbe surface owner of land by tbe “Relinquishment Act” (Rev. St. 1925, arts. 5367-5382) tbe subject of assignment? (2) Do his rights to rentals and royalties terminate .upon a sale by him of tbe surface estate? and (3), Is a subsequent owner of tbe surface estate entitled to tbe rentals and royalties which accrue subsequent to bis acquisition of the surface estate?

We are of the opinion that these questions should be answered in tbe affirmative.

■ Article 5367, Revised Statutes, reads: “Tbe State hereby constitutes tbe owner of tbe soil its agent for tbe purposes herein named, and in consideration therefor, relinquishes and vests in tbe owner -of tbe soil an .undivided fifteen-sixteenths of all oil and gas which has been undeveloped and tbe value of tbe same that may be upon and within the surveyed and unsurveyed public free school land and asylum lands and portions of such surveys sold with a mineral classification or mineral reservation, subject to the terms of this law. Tbe remaining undivided portion of said oil and gas and its value is hereby reserved for tbe use of and benefit of tbe public school fund and tbe several asylum funds.”

Article 5368 reads: “Tbe owner of said land is hereby authorized to sell or lease to any person, firm or corporation the oil and gas that may he thereon or therein upon such terms and conditions as such owner may deem best, subject only to the provisions hereof, and he may have a second lien thereon to secure the payment of any sum due him. All leases and sales so made shall be assignable.1 No- oil or gas rights shall be sold or leased hereunder for less than ten cents per acre per year plus royalty, and the lessee or purchaser shall in every case pay the State ten cents per acre per year of sales and rentals; and in case of production shall pay the State the undivided one-sixteenth of the value of the oil and gas reserved herein, and like amounts to the owner of the soil.”

Article 5379 reads: “The payment of the ten cents per acre and the obligation to pay the owner of the soil one-sixteenth of the production and the payment of same when produced and the acceptance of same by the owner, shall be in lieu of all damages to the soil.”

After the enactment of the “Relinquishment Act,” O. W. Greene applied to the commissioner of the general land office for a permit to prospect for oil and gas on certain lands which had been theretofore awarded and sold to T. E. Hickox and by him transferred to I. G. Yates. In the sale to Hickox the land had been classified as “mineral,” and the minerals had been reserved to the state. The land commissioner rejected the application, and an original proceeding for mandamus was brought in the Supreme Court to compel the land commissioner to issue the permit. Greene contended as a basis for the relief sought that the Relinquishment Act was unconstitutional, and therefore he was entitled to the permit .under the provisions of permit and lease law of 1917 (Acts 35th Leg. c. 83).

The reasons assigned by Greene in attacking the constitutionality were (1) that the act constituted a donation to the owner of the surface of a part of the permanent free school fund; (2) -that it attempted to create an irrevocable agency coupled with an interest in the subject-matter; -(3) that it provided for the use of a part of the permanent school fund to compensate the owner of the soil for services rendered by him, and for damages to his surface rights;- and because it created “an agency with power to fix the conditions, times, and terms of sale of public school and asylum lands,” in contravention of section 4, art. 7, of the Constitution. The Supreme Court, Greene v. Robi-son, 117 Tex. 516, 8 S.W.(2d) 655, 659, in arriving at the intention of the Legislature in passing the Relinquishment Act, liad the following to say regarding the conditions existing under the statutes then in force:

“There was a dual or double ownership of the land, the surface estate and the mineral estate, each antagonistic to and conflicting with the other. There was no provision of law for the protection of the owner of the soil in his peaceable enjoyment and possession of his property. The development of an oil field on it would be disastrous to him and utterly destructive of his property. Therefore the attitude of owners of the school and asylum lands throughout the state was practically one of armed resistance. The conditions were inimical to any effort at development, and the state was not realizing on its mineral estate in these lands. The purpose of the act was to meet this practical situation. Indeed, the rights of possession and user of the land as a whole by both the owner of the soil and the owner of the minerals, they being joint owners of the land, are mutual and blended. As in other joint ownerships, necessarily there must be co-operation. If the joint owners do not co-operate, confusion is bound to arise, the purposes and efforts of each are jeopardized and destroyed, and the state suffers loss, not only to its mineral estate, but likewise as a sovereign in the administration of justice. The Legislature has brought about this desired result in a lawful manner by requiring the purchaser of the oil and gas to compensate the owner of the soil for the use he makes of the surface, independent of the price he pays for the minerals. He compensates said owner for the inevitable damages of oil exploration and operation. The landowner acquires no estate in the oil and gas. He simply has a right to receive the compensation from the lessee out of the lessee’s production as the statute provides.
“The payments to be made to the owner of the surface ‘in lieu of all damages to the soil’ is a matter of interest primarily to the landowner and the oil operator. It is the oil operator who injures or destroys the owner’s land. But the state is also interested as á sovereign doing justice between its citizens and also as the vendor to the landowner.
“The provision that the payment of the 10 cents per acre per annum and the one-sixteenth of the production shall be ‘in lieu of all damages to the soil’ shows clearly that same was not regarded as a part of the consideration for the sale of the oil and gas.

“It becomes unnecessary for us to decide whether or not the Legislature in the sale of the oil and gas in these lands could have protected the owner of the soil and have secured to him that which he had bought from the state, by providing that he should receive a part of the oil and gas, or their proceeds, or to decide whether he could be compensated for services in selling them out of the proceeds of the sale. Therefore it is the reasonable, and, we think, the correct, interpretation of the act that the provisions for payment to him of like amounts paid to the state are not a division of the proceeds of tlie sale of the oil and. gas, but an act of the Legislature, in the exercise of its sovereign lawmaking powers, making just and equitable provision for protecting its citizens in their property rights it has sold them.”

From the wording of the statute itself and from the holding of the court above quoted, it appears that the sole purpose of the Legislature was to bring about the co-operation of the owner of the surface and secure his assistance in the exploration for and the development of the mineral estate under these lands.

If we are to give effect to the holding of the Supreme Court, it is also apparent that the method adopted by the Legislature to bring about' the desired result was to -have the lessee’or purchaser pay to. the owner of the surface certain compensation for damages to the surface. Therefore it will follow that their intention was to give the compensation to the person who was the owner of the surface at the time the damage occurred.

This would mean that the right to collect compensation for such damages would follow and could not be separated from the surface ownership. To hold otherwise, in view of the above holding, would be to nullify the very purpose the Legislature had in mind when it enacted the statute.

The present case is a striking example of the effect of such a holding.

If it be true, as contended by appellees, that the White Land & Cattle Company could assign its rents and royalties under the leases, and could transfer the surface reserving such rights, then we would find appellant, as the owner of the surface with everything to lose and nothing to gain by the discovery and development of an oil field on the land, and his natural attitude would be what the Supreme Court has described as “practically one of armed resistance.”

We would be further faced with a condition where a party was collecting compensation for damages to his property after he had ceased to be the owner thereof, which compensation the Supreme Court has said was allowed him for the purpose of securing his cooperation in the development of the state’s mineral interest. •

After a careful reading of the briefs of the parties and of the many authorities cited, we have reached the conclusion that the White Land & Cattle Company, as the owner of the soil, had a right to collect the rentals and royalties reserved to the owner of the surface in the leases executed by White et al.; that such right continued as long as it remained the owner of the "surface, but was terminated when it parted with the surface ownership; that such right was assignable, but that the rights of the assignees thereof also terminated upon the sale of the surface; and that appellant became entitled to collect all rentals and royalties accruing after he became the owner of the surface estate.

If we are correct in this holding, then the judgment of the trial court should be reversed and the judgment here rendered which that court should have rendered.

When, however, we come to rendering such judgment, we are confronted with the question as to what portion of the rents provided for in the leases and which have accrued since his ownership of the surface began, appellant is entitled to recover from appel-lees.

It is clear that he will be entitled to recover only such portion as is allowed him by the Relinquishment Act.

In Greene v. Robison, supra, the Supreme Court used the following language relative to the respective interests of the state and the surface owner in the amounts received from a sale or lease of the mineral interest of the state: “We interpret the act to fix a minimum price of 10 cents per acre per annum and the value of one-sixteenth of the gross production free of cost to the state, for which the state is willing to sell the oil and gas, and the agent is authorized to secure the highest price obtainable for the benefit of the fund to which the land belongs; like amounts received by the state to be paid by the purchaser to the owner of the soil. If a bonus is paid, if a larger royalty or other amounts are contracted for, the state and the owner of the soil receive equally in like amounts

In Empire Gas & Fuel Co. v. State, 21 S.W. (2d) 376, the Austin Court of Civil Appeals held that the state was entitled to one-half of a cash bonus and one-half of the rentals remaining after deducting the 10 cents paid the state. The court based its holding upon the language above ¡quoted, but, when the case reached the Supreme Court on an application for a writ of error, that court granted the writ “on the importance of the question.”

As we understand the decision and the questions involved in Greene v. Robison, the interpretation above referred to was not necessary to the decision of any question then before the court; therefore it can have no authoritative value.

From a study of the Relinquishment Act itself, and in view of the decision in Greene v. Robison, we are constrained to disagree with the holding of the Austin court. The court held in the Greene Case that the amount to be paid by the lessee or purchaser to the owner of the soil was to compensate him for damages to the soil, and only by that holding did the court sustain the constitutionality of the act.

Under the provisions of article 5379 the owner accepts the 10 cents per acre and the one-sixteenth of ílie production in lieu of all damages to the soil.

This, in effect, says that those amounts are all he will be entitled to receive for his damages. Therefore, if the compensation provided for by the act is only for damages to the soil, and the act' itself provides that he must accept the 10 cents per acre and the one-sixteenth of the production in lieu of all his damages, how can it be said that he is entitled to more. We have concluded that he is entitled to a rental of only 10 cents per acre, and that any rental over and above that sum goes to the state.

Therefore, appellant here is entitled to recover from appellees the sum of $75.31 instead of $112.95, as mentioned by the parties in their briefs.

In accordance with the above vie'ws, the judgment of the trial court is reversed, and judgment is here rendered canceling the assignments executed by the White Land & Cattle Company to Lemar, and removing all clouds cast upon appellant’s title by reason thereof, and that appellant recover of and from appellees, jointly and severally, the sum of $75.31.

Reversed and rendered.

On Motion for Rehearing.

.Appellees in their motion for rehearing contend that we erred in our original opinion in rendering a joint and several judgment against them for the delay rentals on the land in question.

Their position is well taken. It appears from the agreed facts that all delay rentals to the time of trial were paid by the respective lessees to those claiming the same by virtue of the mineral deed from the White Land & Cattle Company to H. E. Lemar.

We find from an examination of the record that the White Land & Cattle Company by said deed conveyed to Lemar all its interest in the rentals on said land; that he in turn conveyed all the delayed rentals on the west one-half of section 112, block 11, to the Magnolia Petroleum Company, and one-eighth of the delay rentals on section 122, block 11, to A. C. Butler.

By virtue of the agreement then, it appears that the rentals which have become due since appellant became the owner of the surface have been paid to Lemar, Butler, and the Magnolia Petroleum Company.

The judgment in this case should be that appellant recover of and from Magnolia Petroleum Company the sum of 10 cents per acre on 113.10 acres, the number of acres in the west one-half of section 112, block 11, or $11.31, from Butler the sum of $8, being one-eighth of the rental paid on section 122, block 11, and from Lemar $56, or the remaining seven-eighths of the rental paid thereon. ’

The judgment heretofore rendered is amended, and judgment is now rendered that appellant recover of and from Magnolia Petroleum Company the sum of $11.31, from A. C. Butler the sum of $8, and from H. E. Lemar the sum of $56.

The motion for rehearing is in other respects overruled.


author: HIGGINS, J.

text:
    OLIVAS et ux. v. EL PASO ELECTRIC CO.
    No. 2532.
    Court of Civil Appeals of Texas. El Paso.
    April 16, 1931.
    Rehearing Denied May 7, 1931.

      J. A. Gillett, S. P. Weisiger, and W. O. Hamilton, all of El Paso, for appellants.
    Hunter, Brown & Brooke, of El Paso, for appellee.
   HIGGINS, J.

The appellants, Olivas and wife, appeal from an order sustaining exceptions, general and special, to their petition, and dismissal of their suit upon refusal to amend.

Omitting its formal parts, the petition reads:

“2. That said defendant Corporation was organized for the purposes, and was at all times hereinafter mentioned and is engaged in the manufacture and sale for profit, of electric current and electricity for both lighting and power purposes.
“3. That defendant corporation, at all times herein mentioned, maintained, owned and operated lines of poles and wires for the purpose of conducting and transmitting electricity and electric currents from their main station in the City of El Paso, Texas, and their substations in the Rio Grande valley, to many points southeasterly from said city down, and along said valley and along the public highway to a point easterly from the village of Tornillo, and on into Hudspeth County.
“4. That said line of poles and wires and the equipment connected therewith constitute a complete system for the purposes aforesaid; and the same belong to and were at all times herein m'entioned, owned and operated by defendant.
“5. That said electric line at all said times was and is charged with and carries currents of electricity of a high and dangerous voltage and power; capable of inflicting serious bodily injury and death to- any human being who might come im contact therewith.
“6. That heretofore, prior to and on the 16th day of May, 1929, defendant had constructed, and maintained and operated a branch electric line, extending from its main line along the aforesaid highway several hundred yards to a farm leased and controlled by W. D. Malone, and known as the Melton place.
“7. That said branch line was built, owned and maintained by defendant solely for the purpose of furnishing electric lights for a dwelling on said Melton place.
“8. That plaintiffs and their son, Jose Oli-vas, now deceased, who was an employee of and foreman for said W. D. Malone, occupied said dwelling on the Melton place, to which said branch electric line had been built by defendant, having a legal right and authority to occupy the same, and were living therein pri- or to and on the 16th day of May, 1929.
“9. That the electric feed or service wires on said branch line extended from the main line of defendant on the said public highway to and into said house so occupied 'by plaintiffs and their family including the said Jose Olivas, now deceased.
“10. That on one of the poles of said branch line, located on said Melton place and near said residence, a wire extended from a cross-arm near the top thereof to a metal stake or stob driven into the ground near the foot of said pole, which wire was intended as and was called a ground wire. The said wire was attached to the top of said metal stake or stob about four inches, more or less, above the ground.
“11. That said ground wire was bare, exposed and uninsulated for a space of several inches just above the top of said metal stob to which it had been and was attached.
“12. That prior, up to and on the 16th day of May, 1929, said electric wires on the main line along the public highway as well as on said branch line extending to and into said dwelling, and the said ground wire, were all charged with and carried a very high, dangerous and deadly current and load of electricity of sufficient voltage and power to hill any human being who might come in contact with it.
“13. That on or about the 16th day of March, 1929, the use of electric light in said dwelling where plaintiffs resided, was discontinued, and the electric meter was removed therefrom by defendant; but the wires running into said house were not removed and were left in such condition that the current of electricity continued to be carried and passed into said house after said meter had been removed. And at various times thereafter electricity flashed and darted from the ends of said detached and exposed wires in the said house, which caused plaintiffs great anxiety and fear lest they or some member of their family might be killed or injured, or their property destroyed 'by said electric current; and by reason thereof plaintiffs nerves were unstrung and they suffered great mental strain, and the quiet and peaceable possession and occupancy of their home was so disturbed that they lived in constant dread and apprehension for fear that some dire calamity might befall them.
“14. That when the use of electric light in the said dwelling had been discontinued, the .current of electricity was not cut off by defendant at the main line on the highway, as it could and should have been; but the wires were allowed to remain connected there, and a current of electricity of high and dangerous voltage, capable of inflicting great bodily injury and death to human beings, continued to be conveyed to and over said private premises, for a distance of several hundred yards, to and into said house.
“15. That said branch line and said current of electricity so maintained and continued thereon by defendant, after the use of light in said house had been abandoned and discontinued, was wholly unnecessary and without legal excuse, as plaintiffs were thé only patrons on said line.
“16. That said branch line to and across the premises occupied by plaintiffs, so 'constructed and maintained by defendant, was never at any time inspected and examined by it to determine whether said line had gotten out of repair and was in a safe condition.
“17. That the pole hereinabove mentioned; on and from the top of which the aforesaid ground wire extended to the metal stake or stob, driven in the ground, was standing in close pr.oximity to and almost against a wire fence made of barbed wire and hog and chicken proof wire netting, which ran along the bank of an irrigation ditch, the banks of which were at all times and especially on the 16th day of May, 1929, moist and wet.
“18. That said line of Wire fencing and said electric line ran close to a stock corral or pen, between said house and fence, where stock were kept and fed; and around and about which there was constantly thrown and scattered discarded pieces of bailing wire from the hay and alfalfa feed to said stock.
“19. That said branch electric line, poles and wires were wrongfully maintained by defendant in said conditions, in and at a place and location about and where it was necessary for persons to work and pass over, around and across, in the daily performance of their regular duties on said premises anct farm; and where it was particularly necessary for the said Jose Olivas, now deceased, to go, pass and be in the performance of his duties to his employer on- said farm.
“20. That all said conditions were dangerous and were made so by the wrongful acts of defendant in maintaining said branch line so charged with dangerous currents of electricity upon the premises of plaintiffs, when there was no occasion for it, and were fully known to defendant, its servants and employees, and by the use df ordinary; care could and would have been known to it and them.
“21. That the maintenance of said branch line from the main line along the highway to, over and across the Melton place to the residence of plaintiffs, a distance of several hundred yards, together with the so-called ground wire kept and maintained in the condition herebefore stated, a part of said ground wire in cióse proximity to the aforesaid wire fence being -bare, exposed and uninsulated for a space of several inches above the point where it has been attached to the aforesaid metal bolt driven into the ground, and charged with a deadly and dangerous current of electricity, which was wholly unnecessary and wrongful and not in use, constituted a private nuisance, extremely dangerous and threatening to life and limb of any person whose duty it was or might be to work around and be about the same.
“22. That as hereinabove stated there was around and about the said premises pieces of baling wire off hay and alfalfa, portions of which came in contact with the bare, exposed and uninsulated part of the said ground wire and stob and the metal thereof and the said wire fence which ran between the Melton place and the Sthhman place; whereby the said fence became-and was charged with a deadly and dangerous current of electricity, at the time hereinafter mentioned.
“23. That about 6:00 P. M., on the 16th. day of May, 1929, it became necessary for the said Jose Olivas to cross the said division fence, and when he touched and came in contact with it, he was knocked down and back by the force of electricity thereon, on and upon the said baling and fence wire; and by reason of the strength and force of said electric current and the force with which he was knocked down, he was unable to release or extricate himself from said wire and fencing, or to remove himself therefrom, and he remained in that eondititon for ten minutes or more.
“24. That by reason of coming in contact with the fence and wires aforesaid, charged as they were with a high voltage of electricity, the said Jose Olivas was so seriously injured and burned that he died from the effects thereof about one week later.
“25. That the action of the defendant in maintaining said branch electirc line in the manner and under the conditions aforesaid constituted a private nuisance on, over and acros& said Melton place, and at and in close proximity to where it was necessary for the said Jose Olivas to be and pass to and from in the usual and daily performance of the duties required of him on said premises; and same was the proximate cause of his injuries and death to plaintiffs’ damages as hereinafter alleged.
“26. That the said Jose Olivas was the son of plaintiffs, at the time of his death was slightly less than twenty-one years of age, and had never married, or had any children; and that his mother was fifty-eight years old and his father sixty years old.
“27. That the said Jose Olivas was an energetic, intelligent, industrious, law-abiding and dutiful son, and had assisted, maintained and supported his parents for several years prior to his death; and had he lived, he would have assisted, maintained and supported them for fifteen and more years to come.
“28. That the said Jose Olivas, at the date of his death was earning $40.00 a month, besides his fuel, .house and water for himself and parents; and had he lived, his income would have increased with age and experience, and his contributions to the maintenance and support of his parents would have increased.
“29. That plaintiffs expended the sum of $156.75 for medicines, and the funeral expenses of their said son, and the same were necessary and reasonable; and defendant has failed and refused to pay the same or any part thereof, though requested so to do, to plaintiff’s damage in the sum of $156.75.
“30. That the aforesaid acts of defendant, its servants and employees, in maintaining said branch electric line upon and across the premises of plaintiffs, in the manner and conditions aforesaid, constituted the maintenance of a private nuisance, which proximately cause the said injuries to and death of the said Olivas, and the loss to plaintiffs of their son, and the maintenance and support which they would have received from him; as well as the injury they sustained in mind and body by the unwarranted invasion of the quiet and peaceable occupancy of their home by defendant, in the manner hereinabove set out. That all said' acts of defendant have caused these plaintiffs damages in’the sum of $25,000.00, which defendant has failed and refused and still fails and refuses to pay, to plaintiffs’ loss and damage in the total sum of $25,156.75.
“Wherefore, plaintiffs pray that defendant be cited to appear and answer herein and that upon final hearing hereof, they have judgment against defendant for said .sum of ,$25,156.75, together with all costs in this behalf incurred, and for all such other relief, general and special, as they may be entitled to under the facts herein.”

As against the general demurrer, the petition stated a cause of action for damages for the maintenance of a private nuisance as well as for damages for the death of plaintiffs’ son under the death by wrongful act statute. Article 4671, R. S.

The allegations show a condition created by the acts of defendant which disturbs plaintiffs in the peaceable possession and occupancy of their home, causing constant dread and apprehension, a condition which in fact is dangerous and has already caused the death of one member of the family. A condition of this kind is plainly a nuisance (City of Dallas v. Early [Tex. Civ. App.] 281 8. W. 883; 20 R. C. L. 380), and for the resulting damages the defendant is liable. The general allegation of. damages contained in the last section of the petition is sufficient to admit proof and support a recovery of the damages which naturally and necessarily result from the nuisance complained of. Texas & P. Ry. Co. v. Curry, 64 Tex. 85; San Antonio & A. Ry. Co. v. Gwynn (Tex. App.) 15 S. W. 509, 510.

Upon this phase of the case the issue of negligence is immaterial (46 C. J. 663; 20 R. C. L. p. 381 § 3, though as a matter of fact, .as later shown, the petition shows that the nuisance complained of is the consequence of the defendant’s negligence.

We pass now to consideration of the petition as stating a cause of action for the death of plaintiff’s son.

The generation, transmission, and distribution of electricity is a practical necessity. . The business of generating, transmitting, and distributing the same is authorized and lawful. High-voltage currents of electricity are very dangerous agencies, but, by the exercise of the proper degree of care in the transmission and distribution of the current, its dangerous character is practically eliminated. Failure to exercise such care is, of course, negligence. The petition does not in terms allege negligence, but upon general demurrer all reasonable intendments are indulged in favor of its sufficiency, and the reasonable inference from the facts alleged in the tenth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, nineteenth, twentieth, twenty-first, and twenty-second sections of the petition shows failure by defendant to exercise ordinary care, and in the twenty-fifth and thirtieth sections it is sufficiently alleged that this proximately caused the death of the plaintiffs’ son. We are therefore of the opinion the petition, as against general demurrer, states a cause of action for the death of plaintiffs’ son.

It is insisted by plaintiffs that, since negligence is not an essential element of a nuisance and they have alleged a nuisance on their premises, it is not necessary for them to prove negligence in order to recover for the death of their son. In this connection it is further insisted that contributory negligence of the deceased will not bar the action. This view is untenable.

If the allegations showing a want of the proper care by defendant be disregarded, thd defendant is at most guilty of but a simple trespass in permitting the branch line to remain upon the premises and in the house carrying a current of electricity. The nuisance is created, not by the simple trespass, but by the negligence of the defendant in the particulars indicated. See title “Nuisances,” 46 C. J. § 28, and 20 B. C. L. § 3, at page 382. The proximate cause of the death of the son was the negligence stated, for without such negligence the death would not have occurred. Olearly negligence is the gist of the action for the son’s death. Under settled rules his contributory negligence would defeat recovery of damages for his death.

The defendant’s exception relating to alleged misjoinder of causes of action is without merit. • It was proper to sue for and recover in the one action the damages sustained by the plaintiff resulting from the nuisance as well as the damages occasioned by the death of their son. J. L. Daniel v. Ry. Co., 96 Tex. 327, 72 S. W. 578; Texas & P. Ry. Co. v. Reeves (Tex. Com. App.) 256 S. W. 992.

Defendant’s special exception No. 6 is likewise without merit.

What has been said sufficiently disposes of. the questions presented by the various exceptions.

Beversed and remanded.


author: ALEXANDER, J.

text:
    FIDELITY UNION CASUALTY CO. v. CAREY et al.
    No. 1035.
    Court of Civil Appeals of Texas. Waco.
    April 9, 1931.
    Behearing Denied May 7, 1931.

      See, also, 13 S.W.(2d) 993; 25 S.W.(2d) 302.
    Collins & Houston, of Dallas, and Lewis M. Seay, of Groesbeek, for appellant.
    O. H. Macben, of Mexia, and Mr. & Mrs. C. S. Bradley and J. E. & B. L. Bradley, all of Groesbeek, for appellees.
   ALEXANDER, J.

This was an action by the Fidelity Union Casualty Company against Mose Carey and others to set aside an award of the Industrial Accident Board. Tbe case was submitted'to a jury on special issues, and tbe court, on tbe answers of the jury, entered judgment for tbe defendants. Tbe plaintiff appeals.

Tbe appellant cojnplains of tbe action of tbe court in refusing to give an instructed verdict for tbe insurance company. Mose Carey was an employee of Fred Hall. Hall was a teaming contractor hauling for tbe public, and in connection therewith had a contract to haul swill from the city of Mexia. This was an industrial vocation and was within the terms of the Workmen’s Compensation Act. Hall carried compensation insurance in tbe appellant company. Mose Carey was stable man or general corral boss, and it was bis duty to drive up the work stock in the morning, feed and harness tbe teams, repair harness, etc. However, Hall was also engaged in tbe business of raising, feeding, and shipping bogs which was a farming industry for which he could not and did not carry workmen’s compensation. Gordon v. Buster, 113 Tex. 382, 257 S. W. 220. In addition to doing the work above mentioned, Carey hauled the swill from the city of Mexia and fed it to the hogs, and sometimes fed grain to the hogs, and from time to time assisted in shipping the hogs.

Appellant’s first contention is that the evidence does not sufficiently show in which of these occupations appellee was engaged at the time of his injury. The evidence shows that appellee used two small horses in hauling the swill from the city of Mexia with which the hogs were fed. All of the work stock was kept in a pasture consisting of about 123. acres. At the time Carey was injured he had gone to the pasture for the purpose of corralling the work stock or at least some of them. He was riding one of the small horses used in hauling swill. While attempting to drive one or more of the horses to the barn, he was thrown, and as a result he was totally and permanently injured. There was no evidence as to which of tbe horses Carey was after at the time of the injury nor for what specific purpose the horse was to be used after he had been driven to the corral. Appellant insists that, since Carey was riding one of the small horses used in hauling swill, and since he was after only one other horse, we must infer that he was after the other horse usually used in hauling swill, and that the horses were being corralled for the purpose of hauling swill; and, since the swill was to be used in feeding the hogs, he was not engaged in an insurable occupation at the time of the injury. We do not think that the evidence would justify this court in drawing the many inferences contended for by the appellant, as this would clearly be the pyramiding of one presumption on another. Missouri Pac. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324; Fort Worth Belt Ry. Co. v. Jones, 106 Tex. 345, 166 S. W. 1130. Moreover, if we were to draw such inferences, it would not necessarily result that Carey was engaged in the noninsurable occupation at the time of the injury. Hall, the employer, testified that he had a sanitary contract with the city of Mexia to haul the swill from the city. If we should be authorized to draw the inference that the horses were being corralled for the purpose of hauling • swill, Carey in • performing such service would have been engaged in the performance of the contract between Hall and the city of Mexia, and therefore would have been engaged in the industrial occupation for which the insurance was carried. The mere fact that the swill was to be thrown into the hog pen after it was removed from the city would not change Carey’s occupation from an insurable to a noninsurable occupation. The evidence was not sufficient to raise the inference that, at the time he was injured, he was doing anything even remotely connected with the hog raising enterprise. He was employed as corral boss. As corral boss it was his duty to round up, feed, and harness the horses. This he was doing at the time of the injury. The jury found, in answer to special issue No. 1, that he was injured while in the due course of his employment.

If the appellant had thought there was sufficient evidence to raise the inference that Carey was engaged in the hog-raising enterprise at the time of the injury, it should have requested an issue submitting the question to the jury, and allowed the jury to draw the inference. No such issue was requested and no objection made to the issue as submitted. Since the trial court rendered judgment for the appellees, it will be presumed that the court foimd that Carey was injured while he was engaged in the industrial occupation for which the insurance was carried. Embrey v. Ligon & Co., 118 Tex. 124, 12 S.W.(2d) 106; Fidelity & Deposit Co. v. Kelsay Lumber Co. (Tex. Com. App.) 29 S.W. (2d) 1052; Texas Employers’ Ins. Ass’n v. Russell (Tex. Civ. App.) 16 S.W.(2d) 321, par. 3.

Appellant’s second contention is that the evidence does not sufficiently show the average weekly wage of the injured employee. The appellee alleged that he earned $3 per day, and that his average weekly wage was $18 per week, working 6 days per week, and that his average annual wage was $936. The jury found that his average daily wage was $3 per day and his average weekly wage was $18 per week. The court applied Revised Statutes, article 8309, § 1, subsection 1, and arrived at the average weekly wage by multiplying the $3 per day by three hundred days and dividing this sum by fifty-two weeks. The result was $17.30 per week. The court based the recovery on 60 per cent, of this amount. The evidence shows that Carey had worked for Hall for approximately four years in substantially the same employment. He sometimes drew $15 per week and in boom time $20 per week. At the time of the injury he was working six days per week and was drawing $3 per day, or $18 per week. He generally drew $3 per day and worked six or seven days per week. The evidence does not show how many days he worked during the preceding year nor the total amount received by him for his work. There is no evidence that he lost any time. Carey was an illiterate negro and was .unable to calculate the total sum received by him for his year’s work. Hall, the employer, kept a record showing the amount paid Carey, but could not produce the record on the trial and could not tell the total amount paid by him during the preceding year. Appellant contends that, since Carey had worked a full calendar year in the employment in which he was injured, he had not, in the language of the statute, worked in the same employment “substantially the whole of the year immediately preceding the injury,” and the court was not authorized to calculate the average weekly wage on the basis outlined in section 1, subsection 1, article 8309. He contends that the only method that could have been used was' to take the total of' the earnings for the year and divide this sum by fifty-two, and that there was no evidence showing the total earnings for the year. It is true that, where an employee has worked more than three hundred days during the calendar year in , the same employment, he is not bound by the provisions of section 1, subsection 1, article 8309, but is entitled to have the whole of the wages received by him during the year divided by fifty-two in order to arrive at the average weekly wage. Texas Employers’ Ins. Ass’n v. Storey (Tex. Com. App.) 17 S.W.(2d) 458; Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553. However, if either party was injured by the method used by the court in this case, it was the employee and not the insurer, and the insurer therefore has no right to complain. Hartford Accident & Indemnity Co. v. Durham (Tex. dv. App.) 222 S. W. 275; Lumbermen’s Reciprocal Ass’n v. Warner (Tex. Com. App.) 245 S. W. 664; Fidelity Union Casualty Co. v. Cary (Tex. Civ. App.) 13 S.W.(2d) 993; Casualty Reciprocal Ins. Co. v. Stephens (Tex. Civ. App.) 25 S.W.(2d) 180. The evidence shows that Carey worked from six to seven days per week. He worked regularly and generally received $3 per day, sometimes more. He sometimes worked overtime and was paid extra. There is no evidence that he lost any time. If his actual earnings for the year had been divided by fifty-two, his weekly wage would doubtless have been more than that allowed by the court. The jury found his average daily wage was $3 per day and his average weekly wage was $18 per week, and the evidence supports the verdict.

Appellant further contends that the $3 per day paid to Carey was for the services rendered by him indiscriminately both as corral boss in the hauling business for which .insurance was carried, and for his services in feeding and rearing hogs for which insurance was not and could not be carried, and that therefore the evidence' does, not show what wage was earned by Carey in the industrial or insurable occupation. We have found no Texas case that has undertaken to decide how the weekly wage should be apportioned or determined where the. employee immediately preceding and at the time of the injury was engaged in the service of two different employers or in two different occupations. In some states, where the employee is regularly engaged in two different occupations or is working for two different employers in the same line of work, the courts hold that the employee is entitled to establish the total sum received by him from all his concurrent employers as his average weekly wage. Juan’s Case, 125 Me. 361, 134 A. 161; Anderson v. Roberts-Karp Hotel Co., 171 Minn. 402, 214 N. W. 265; Clark v. Forest Lumber Co., 9 La. App. 334, 120 So. 88; Western Metal Supply Co. v. Pillsburry, 172 Cal. 407, 153 P. 491, Ann. Cas. 1917E, 390. The holding in these cases is based on the doctrine that the insurance provided for by the statute is intended as a substitute for the lost earning capacity of the injured employee. In other states, the rule is that the compensation should be based on the wages paid by the industry in which the injured employee was working at the time of the injury and not on the actual earning of the employee in all similar work carried on by him. Quebec’s Case, 247 Mass. 80, 141 N. E. 582, 30 A. L. R. 996; King’s Case, 234 Mass. 137, 125 N. E. 153; Skouitchi v. Chic Cloak & Suit Co., 230 N. Y. 296, 130 N. E. 299, 15 A. L. R. 1285; Rice’s Case, 229 Mass. 325, 118 N. E. 674, Ann. Cas. 1918E, 1052; Marvin’s Case, 234 Mass. 145, 125 N. E. 154; Hight v. York. Mfg. Co., 116 Me. 81, 100 A. 9, L. R. A. 1917E, 277; Snow’s Case, 252 Mass. 426, 147 N. E. 877; Kapler v. Camp Taghconic, 215 App. Div. 51, 213 N. Y. S. 160; Walton v. Electric-Service Co., 121 Kan. 480, 247 P. 846. King’s Case, supra, illustrates the holding in these cases. King worked for the Atlantic Printing Company regularly from Monday until Saturday at noon and received $28 per w.eek. For more than a year he had worked each Saturday night for the Globe Newspaper Company at $9.20 for each Saturday night’s work. líe was totally disabled while in the service of the Globe Newspaper Company, and the court held that his average, weekly wage was $9.20, that being the amount paid by the employer in whose service he was injured, and that the court could not take into consideration the compensation received by him from the Atlantic Printing Company. The holding in these cases is based on the doctrine that the insurance carried by the employer is a tax on the industry and is a part of the costs of production, and that the basic principle of the Workmen’s Compensation Act is that the costs of injuries incidental to the modern industry should be treated as a part of the cost of the production, and that the act was framed with that end in view. Quebec’s Case, 247 Mass. 80, 141 N. E. 582, 30 A. L. R. 996.

It should be noted, however, that in the state of Massachusetts, and probably in some of the other states in which the above cases were reported, there is no provision in tbe Workmen’s Compensation Act allowing concurrent contracts of service with two or more employers, and in that state, in order to baste the average weekly wage on the amount earned, the wage must have been earned by one in the same grade, employed at the same work, and of the same employer. King’s Case, 234 Mass. 137, 125 N. E. 153. Our statute, article 8309, § 1, subsec. 1, reads as follows: “If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.” This statute is broad enough to permit the use of the wages earned from other employers' during the calendar year in determining the average weekly wage, so long as the service has been rendered in the same or similar employment, that is, in the same or similar class or grade of work, whether for the same employer or not. For the same reason we think the service could be rendered for the same employer, but in two different enterprises or industries operated by the same manager. Here the employee, if we accept appellant’s contention as true, labored concurrently in two different enterprises under the same ownership. He fed and harnessed horses in one enterprise and fed hogs in the other. There was no essential difference in the grade of work done in the one from that done in the other. Moreover, the service rendered by the employee in feeding hogs in the farming enterprise was only incidental to his main employment as corral boss in connection with the hauling business. His main or dominant employment was that of corral boss. The undisputed evidence shows that he was employed for that work and was paid $3 per day “as corral boss.” The fact that he sometimes fed grain to the hogs or assisted in hauling the hogs to the market was merely incidental to his main employment. During the time he was thus engaged in the farming enterprise, the insurance company was relieved from liability and was therefore benefited instead of being injured thereby.

Finding no error in the judgment of the trial court, the same is affirmed.


author: GABEAGHER, C. J.

text:
    BROWN et al. v. HEMPKINS.
    No. 1053.
    Court of Civil Appeals of Texas. Waco.
    April 2, 1931.
    Rehearing Denied April 30, 1931.
    Tom Whipple, of Waxahachie, for plaintiffs in error.
    J. C. Bumpkins, of Waxahachie, for' defendant in error,
   GABEAGHER, C. J.

Plaintiffs in error, Vernessa Brown and Willie Lee Brown, husband and wife, instituted this suit against defendant in error, H. B. Plempkins, to recover a tract of - land containing approximately two acres, and situated in or near the suburbs of the city of Waxa-hachie. The parties will be designated as in the trial court. Plaintiffs alleged, in substance, that the property sued for was the separate property of said Vernessa Brown, and that she held title thereto in fee simple; that on the 26th day of March, 1929, she and her husband borrowed $30 from defendant; that to secure the same they made him a warranty deed to said tract of land; that he executed and delivered to them an agreement in writing to reconvey said land to them upon payment to him within sixty days of the sum so borrowed, with interest thereon; that said deed, while absolute on its face, was intended as a mortgage,' and was made and delivered for the sole purpose of securing said indebtedness; that defendant was then asserting title to said land and threatening to sell the same. They pleaded a tender to defendant of the sum of $33 in discharge of the alleged indebtedness and paid said sum into court. Defendant pleaded general denial and that he had purchased said land for a valuable consideration, that the plaintiffs had placed him in possession thereof, subject to the rights of tenants then cultivating the same, and that plaintiffs had failed to exercise the option given them by him to repurchase the same. He prayed that he be quieted in the title and possession thereof.

The case was tried by the court without the intervention of a jury and judgment rendered . in favor of defendarit against plaintiff's for the title and possession of said land. The court found and recited in said judgment that the deed made by plaintiffs to defendant was not intended by the parties thereto as a mortgage, but was intended by all of them to pass title to the land and premises therein described, unless plaintiffs exercised the option given to repurchase the same, and that plaintiffs did not exercise such option according to its terms.

Opinion.

Plaintiffs present a single assignment of error, in which they contend that the court ■erred under the testimony introduced in holding that the deed executed by them to defendant was absolute and vested all their right, title, and claim in and to said land in him; that the testimony showed conclusively that said deed was executed for the purpose of securing a loan; that the same was in truth and in fact a mortgage; and that, they having tendered and paid into the registry of the court the amount of such loan, the court should have canceled said deed and' awarded to them a recovery of said land. The testimony showed without dispute that the land sued for herein was the separate property of Vernessa Brown; that she and her husband, on the 26th day of March, 1929, conveyed the same to defendant by warranty deed; that defendant on the same day signed and delivered the following writing:

“3 — 26—29
“Willie 'Brown: You have today given me deed to 2 acres of land out of the S. M. Durrett. Survey. I agree to deed this property back to- you within sixty days upon your payment to me of the sum of $30.00 with 10% interest on same from March 26, 1929.
“Yours truly,
“H. L. Hempkins.”

The testimony further showed that said land was then in the possession of plaintiffs’ tenants and that plaintiffs did not within sixty days thereafter tender to defendant the sum of $30 with interest thereon and demand reconveyance of said property. The transaction was agreed upon and consummated by Willie Lee Brown and defendant, Hempkins. 'They were the only witnesses to the terms thereof.' Willie Lee Brown testified on direct examination that he borrowed $30 from defendant and agreed to give him a deed to said land to secure the same; that defendant had the deed prepared, and that he and his wife signed and acknowledged the same before a notary public; that he knew at the time that it was on its face an absolute deed, but that he signed it as security for the money borrowed. Yernessa Brown was not present during any of the negotiations, nor was she present when the deed was delivered. She testified that defendant came to her home with a notary public who took her acknowledgment, but that he remained outside. ‘She did not claim to have had any conversation with him at that time. She testified that her husband owed defendant $10 and borrowed $20 more, and that she executed the deed with him to shcure the same. All of her testimony, however,-seems to have been based, upon what her husband told her. She testified that the notary read the deed to her at the time she signed the same, and told her that within sixty days she could get the land back. The notary, did not testify.

Willie Lee Brown testified on cross-examination that he wanted to borrow some money and asked the defendant to lend it to him; that he declined to do so; that they then went to the office of Mr. Wray, an attorney; that defendant again declined to lend him any money, and suggested that Mr. Wray make the desired loan; that Mr. Wray said he would not lend any money on the land; that defendant then said if he (Brown) just had to have some money he would buy the land from him; that defendant told him to go home and see his wife about it; that he did so, and his wife agreed to the proposition ; that he went to the defendant; again' the next day and told him he would sell him. the lots for $30; that defendant asked about an abstract and whether taxes were paid up to date; that he told him the taxes for 1928 and 1929 were not paid; that they then went to Mr. Wray’s office to have him prepare a deed; that he was out and they went to Mr. Griffin’s office; that Griffin wrote the deed; that he (Brown) stayed at the office while defendant and Griffin went to his home to get his wife to sign'the deed; that when they came back he also signed the deed; that he and defendant then went to the bank and defendant gave him $30 in money; that, after receiving the money, as they were leaving the bank, he asked defendant if he would sell the property back to him; that defendant said he would need some money and would do so; that he would give them sixty days to buy it back; that they then went -back to Mr. Griffin’s office and he prepared and defendant signed the agreement to reconvey recited above.

Defendant’s testimony with reference to the transaction was substantially the same as the testimony of Brown on cross-examination. He was corroborated by the testimony of Mr. Wray with reference to the visit to his office, the refusal of defendant to lend money to Brown, and the suggestion that he (Wray) should make the loan and that he did not do so. The testimonV showed tnat before the sixty days stipulated for the repurchase of the property had expired, plaintiffs induced defendant to extend the time and that later he made a second extension; that at the second extension he agreed to r-econvey the property for $75 cash, and that just before plaintiffs filed suit he offered to reconvey it for $100. Defendant testified in that connection that the unpaid taxes on said land amounted to about $12, and that the .abstract company advised him that it would cost approximately $100 to get an abstract thereto; that plaintiffs had never tendered him any money; that they had paid $33 into the registry of the court, but that he refused to accept the same. Defendant introduced two other witnesses who testified that, when plaintiffs applied for an extension of time, they stated to defendant that they had sold him the property and that it belonged to him. The testimony showed that the property was worth from two hundred to three hundred dollars. There was some testimony, however, that it had a higher value.

The sole issue presented for determination is whether the transaction under consideration, as evidenced by the deed and agreement to reconvey, considered in connection with the attending circumstances, constituted a mere mortgage of said land to secure the repayment of said sum. of $30, or a conditional sale thereof in consideration of said sum of money, with an agreement to reconvey upon the térms stipulated. The dis-1 motion between a mortgage of land and a conditional sale thereof is clearly stated by our Supreme Court in Astugueville v. Lous-taunau, 61 Tex. 233, 238, in an opinion by Mr. Justice Stay ton, from which we quote as follows: “A mortgage ‘is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event, or a purchase accompanied by an agreement to resell upon particular terms.’ ”

The deed from plaintiffs to defendant' and his agreement to reconvey upon the terms stipulated show on their face a conditional sale and no.t a mortgage. Astugueville v. Loustaunau, supra; Kirby v. National Loan & Investment Co., 22 Tex. Civ. App. 257, 54 S. W. 1081, 1083 (writ refused); Bell v. Ramirez (Tex. Civ. App.) 299 S. W. 655, 657, par. 1, and authorities there cited; Rotan Grocery Co. v. Turner, 46 Tex. Civ. App. 534, 102 S. W. 932; Johnson v. Scrimshire, 42 Tex. Civ. App. 611, 93 S. W. 712, 713 (writ refused); Stringfellow v. Braselton, 54 Tex. Civ. App. 1, 117 S. W. 204, 206; Knox v. Brown (Tex. Com. App.) 16 S.W.(2d) 262, 265, par. 7. The burden was on plaintiffs to show that such instruments should not be so construed. Young v. Blain (Tex. Com. App.) 245. S. W. 65, par. 4; Berry v. Meredith (Tex. Civ. App.) 29 S.W.(2d) 799, 801, par. 1; Bell v. Ramirez, supra, p. 657, par. 2.To authorize the court to construe such instruments to constitute a mortgage instead of a conditional sale, it devolved upon plaintiffs to show by affirmative testimony that -the real intention and agreement of all the parties thereto was that such instruments should constitute a mortgage given as security for a debt and not a conveyance of the property. Knox v. Brown (Tex. Com. App.) supra, 16 S.W.(2d) page 263, pars. 1 and 2; Goodbar & Co. v. Bloom, 43 Tex. Civ. App. 434, 96 S. W. 657, 661, et seq. Such understanding or intention upon the part of plaintiffs alone would not authorize such construction. Harrison v. Hogue (Tex. Civ. App.) 136 S. W. 118, par. 1 (writ refused); Nagel v. Simmank, 54 Tex. Civ. App. 432, 116 S. W. 862, 864 (writ refused), and authorities there cited. Where the facts are controverted, the quantum of proof necessary to establish such intention and agreement is a question for the determination of the court or jury trying the case. Knox v. Brown, supra, 16 S.W.(2d) page 263, pars. 1 to 4, inclusive; Young v. Blain, supra, pars. 5 to 8, inclusive; Watson v. Beall (Tex. Civ. App.) .279 S. W. 543, 545, par. 3; Wood v. De Winter (Tex. Civ. App.) 280 S. W. 303, 306, par. 5. The trial court heard all the evidence and found that the instruments under consideration were intended by all the parties thereto to pass title to the land described therein, subject merely to an option on the part of appellants to repurchase the same, and that such option had not been exercised by them. There is sufficient evidence to support such findings, and we are therefore not authorized to disturb the same.

The judgment of the trial court is affirmed.