text:
    PERKINS et al. v. NAIL et al.
    No. 821.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1931.
    Rehearing Denied April 3, 1931.

      Seay, Seay, Malone & Lipscomb, of Dallas, and Cox & Hayden, of Abilene, for appellants.
    Scarborough, Ely & King, of Abilene, for appellees.
   HICKMAN, C. J.

This suit was instituted by appfellee Mrs. Emma Nail, joined pro forma by her husband, J. A. Nail, against appellants W. D. Perkins and J. A. Stowe, to recover damages for personal injuries sustained by Mrs. Nail as a result of her having been struck by an automobile owned by appellants while being operated by their agent and employee, Neal Jackson. Briefly, the facts upon which the cause of action was predicated are as follows: Mrs. Nail was operating a boarding house in the city of Abilene. A boarder by the name of Harris became indebted to her. for board and lodging of himself and family, and, to secure her for the amount, pledged to her á Ford automobile. He drove the same into her back yard and delivered the possession thereof to her. Later Harris went to the place of business of appellants, who were engaged in the garage and storage business, and employed them to go to the premises of appellee and pull the Ford car into their place for storage. I-Ie did not inform appellants that the car was pledged to appellee or any other person. Appellants sent an employee, Neal Jackson, to appellee’s premises to tow in the Harris ear. Harris and wife accompanied him. Mrs. Nail protested against the removal of the car, and she and her son sought-to prevent Jackson from taking it. Seeing that her protests were without avail, Mrs. Nail placed herself in the only driveway leading out of the back yard. Her description of the occurrence was as follows:

“When it became apparent that he was going to move the car, I made a dive for the driveway, and ran just as hard as I could. I got into the gate of the driveway. When I got into the driveway the car was standing preparatory to leaving, with Jackson in it. This car from the garage was standing back where it stopped in the beginning.
“In the driveway I stood facing them. I ran down there, turned around facing the cars. With respect to the fence, I was standing at the gate, the fence was on either side; I was standing at the opening. I stood there, threw up my hands, and told him they could not take the car — told them to stop. They did not stop. They certainly did drive right on. I threw up my hands 9.nd told him to 'stop, stop; stop,’ two or three times. They came right on. They, did not slow down, or make any effort to stop. They did not say anything about stopping.
“When they got where I was they knocked me out in the street.”

The case was submitted on special issues, and by their answers thereto the jury found, among other things, that Jackson intentionally drove his ear against Mrs. Nail. The an-' swers acquitted Mrs. Nail of contributory negligence, and assessed the damages at $900. Upon this verdict judgment was rendered for the amount of damages found by the jury, and appellants have brought the case to this court for review.

The principal contention relied upon by appellants in their brief is, that a person may not court or invite injury to his person and recover damages for injuries thus incurred. That this is a correct statement of an abstract principle of law is well settled by the highest courts in many jurisdictions, including the Supreme Court of our own state. In the opinion in Galveston, H. & S. A. Ry. Co. v. Zantzinger, 92 Tex. 365, 48 S. W. 563, 566, 44 L. R. A. 553, 71 Am. St. Rep. 859, Chief Justice Gaines used this language:

“We apprehend that, a plaintiff cannot make a case by intentionally contributing to the injury which the defendant willfully intends to inflict upon him. For example, should one intentionally hurl a missile at another, with the intent to injure, and should the other voluntarily place himself in its way, and thereby receive a battery which he would otherwise have escaped, the person so struck could not recover.” “

Appellants’ contention- is- that, by substituting the words “drive a car” for the words “hurl a missile” in the second sentence above copied, we have a direct holding by our Supreme Cburt applicable to the undisputed facts in this case. With this contention we are not in accord. The example employed by the Chief Justice must be considered in connection with the next preceding sentence and with the opinion as a whole. There must be an intention on the part of the plaintiff to contribute to his injuries and thereby make a case in order for the rule to have any application. The opinion as a whole in the Zant-zinger Case illustrates the distinction. In that case a trespasser on a train was injured by jumping from the running board to avoid the effects of steam intentionally discharged by the engineer for the purpose of injuring him. The trespasser was intentionally in a dangerous place, but he did not place himself in that place with the intention of having steam discharged upon him, but for the purpose of riding on the train. It was accordingly held that his contributory negligence was no defense against the intentional act of the engineer in discharging the steam. Had the! trespasser in that case, knowing that the steam was to be discharged, taken a position on the train which he knew would result in his being scalded, and for the purpose of causing injuries to be inflicted upon himself, then the rule announced in that opinion would have barred his recovery of damages. Absent the elements of intentional self-injury and knowledge that injury would surely result, the rule has no application. (

In the instant ease we have not a record which discloses, as a matter of law, that Mrs. Nail placed herself in this driveway with the intention of being injured, or at a time when she knew it was impossible for Jackson to stop the car and avoid the injury. Her testimony on that point was as follows:

“I did not mean for that car to hit me when I got out in the driveway. I threw up both hands, and hollered for him to stop. I never dreamed that a gentleman would not stop. Anyone would know that I would be hit, if he didn’t stop. When I got out into the driveway I knew that they were going to stop—I felt that they would stop. * * *
“I was bound to have known at that time that I was going to be struck by that car if I didn’t get out of the way, but that wasn’t the way I meant for it to come out.”

Appellants requested no issue to be submitted to the jury on the question of whether Mrs. Nail placed herself in the driveway with the intention and for the purpose of being injured. That was a defensive matter, and was waived by them, unless the evidence of that fact was undisputed, leaving no question for the jury. Ormsby v. Ratcliffe, 117 Tex. 242. 1 S.W.(2d) 1084.

In the face of this testimony, and contrary to the very strong presumption that one does not intentionally injure himself, we are called on to hold, as a matter of law, that the purpose and intention of Mrs. Nail, when she stationed herself in this driveway, was to cause an injury to he inflicted upon her, and in that way make out a case of damages against appellants. Such a holding, we think, would not be supported by the uneontradicted evidence, but, on the contrary, would be opposed to its great weight and overwhelming preponderance. The only reasonable deduction which we make from this testimony is that Mrs. Nail had no other thought than that Jackson would not deliberately and intentionally run the automobile against her. • She testified that she never dreamed a gentleman would not stop. Appellants would penalize her for indulging in this presumption in favor of their own employee, but in this we cannot concur. It would indeed be a strange rule of law that would permit an intentional perpetrator of an unlawful assault and battery to defend against the consequences of his unlawful act upon the ground that the assaulted person should have known in advance of the consequences of not getting out of his way. The contention reduces itself in final analysis to the proposition that the court should say, as a matter of law, and notwithstanding her testimony to the contrary, that Mrs. Nail knew that Jackson, in order to accomplish the unlawful purposes of Harris, irrevocably intended to commit an assault and battery on her, if she failed to run, away. All propositions based upon this and kindred contentions are overruled.

Appellants would apply the law of discovered peril in an inverse order to that in which it is usually applied, and have us hold that, even though appellee did not know of the danger of placing herself in the driveway at the time she first took her station there, yet, while standing there, she discovered the peril of continuing to do so, but made no effort to remove to safety, and for that reason, cannot recover. This contention assumes that at some point in the approach of the automobile, at a time when she could withdraw to a place of safety, appellee realized that injury to her was inevitable, but nevertheless she intentionally remained in the dangerous position, thus inviting the injuries of which she complains. We think what has been said above disposes of this contention. No such issue was requested, and we would not be authorized to hold, as a matter of law, on the record presented, that she ever realized the danger of her position at a time when she could have withdrawn to a place of safety.

In Carsey v. Hawkins, 106 Tex. 247, 163 S. W. 586, a similar question was involved, but our Supreme Court visited the consequences of the doctrine of discovered peril, not upon the plaintiff, but upon the defendant. The failure of the plaintiff to remove his mules to a place of safety was in that case held to be negligence, but not a defense to the negligent act of the defendant in continuing to approach with his car after discovering that the mules were frightened and that injury might result from his continued approach. In McDonald v. Ry. Co., 86 Tex. 1, 22 S. W. 939, 945, 40 Am. St. Rep. 803, Justice Gaines disposes of this theory in this tersé language: “One who beats another cannot urge the defense that the plaintiff might have escaped the battery by running away.”

Another group of propositions, being Nos. 7 to 16, inclusive, and Nos. 22 to 26, inclusive, are disposed of, or rendered immaterial by an announcement of the well-established rule of law that contributory negligence is no defense to an action for damages for an injury willfully, wantonly, and intentionally inflicted. Galveston, H. & S. A. Ry. Co. v. Zantzinger, supra; Morgan v. Ry. Co., 108 Tex. 331, 193 S. W. 134; McDonald v. Ry. Co., supra.

Proposition No. 21 complains of argument made by counsel for appellee in his closing address to the jury. The statement under •this proposition' discloses that two separate arguments are complained of, each covered by a bill of exceptions. One of the arguments was a denouncement by appellee’s counsel of an argument made by appellants’ counsel. Appellants freely concede that the argument of their counsel was improper and should not have been made, but contend that the reprimand was too severe. As we understand the contention, it is not that appellee’s counsel went out of the record and injected improper matter for the jury’s consideration, but that their own attorney made the improper argument, and that it was reversible error for ap-pellee’s attorney to criticize him for so doing. We cannot sustain this contention. We know of no authorities, and have been referred to none, condemning the character of reply made by appellee’s counsel to the improper argument of appellants’ counsel. •

The other bill of exceptions preserving argument complained of was so qualified by the trial judge as clearly to disclose no reversible error.

By proposition 17 error is assigned to that portion of the court’s charge permitting a recovery for “loss of time of plaintiff, if any time was lost, up to the time of the trial.” It is contended that there was no evidence of any lost time, or of the value thereof. The eighteenth proposition makes the same contention with regard to “the cost of medical expenses, if any, incurred, that were reasonable and necessary.” We do not find it necessary to enter into a discussion of these questions or set out the evidence in this opinion. The appellants’ counsel in their very able brief have detailed sufficient evidence in their statement following their propositions to authorize the inclusion of these elements in the court’s charge, and a restatement of that evidence in this opinion would serve no other purpose than to unduly lengthen it.

All of the propositions have been considered and are overruled. The judgment of the trial court is accordingly affirmed.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    SCHUCHT v. STIDHAM et al.
    No. 12509.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 29, 1930.
    Rehearing Denied Jan. 17, 1931.

      Taylor, Muse & Taylor, of Wichita Palls, for appellant.
    Ben W. Tipton, of Electra, and Weeks, Morrow, Francis & Hankerson, of Wichita Palls, for appellees.
   BUCK, J.

This is an appeal from a judgment of the court below, in which judgment was rendered for the plaintiff for $4,759.25. Plaintiff filed a petition in which he attempted to set out a sworn account. The only evidence introduced to support the account was the testimony of O. M. Stidham, one of the plaintiffs. Stidham and C. C. Thrasher were partners. The alleged account covered about a year, beginning June IS, 1928, and ending June 21, 1929. The items alleged were for hauling two loads of cable tools from south of Mineral Wells, to Paul Schucht’s yard at Electra, $437; to material furnished, digging cellar, hauling lumber and tools, and building standard rig and derrick $2,750; and other items in which the plaintiff failed to designate the price he charged for each separate piece of work that he did.

Article 3736, Rev. Civ. Statutes of 1925, reads as follows: “When any action or defense is founded upon an open account, supported by the affidavit of the party, his agent or attorney, taken before some officer authorized to administer oaths, to the effect that such account is, within the knowledge of af-fiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that such account is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust; provided, that when such counter affidavit shall be filed on the day of the trial, the party claiming under such verified account shall have the right to continue such cause until the next term of court; when he fails to file such affidavit, he shall not be permitted to deny the account, or any item therein as the case may be.”

An open account is one in respect to which nothing has occurred to bind either party by its statements; an account which is yet fully open to be disputed. A stated account is an account of many items based upon agreements as to each item as to the prices and the time of payment. It is only an open account that is provable by an affidavit under this article. Wroten Grain & Lumber Co. v. Mineola Box Mfg. Co. (Tex. Civ. App.) 95 S. W. 745. An account in part for items due for salary under a contract, and in part for board, involves isolated transactions resting on special contract, and is not an account whereby the relation of debtor and creditor is created by a general course of dealing, and, though the account is sworn to, defendant need not deny the same under oath. Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442. An account for merchandise sold defendant, not itemized as contemplated by the statute, is not such an account as when sworn to would be admissible to prove itself, although there was no denial under oath to any item. A. Harris & Co. v. Grinnell Willis & Co. (Tex. Civ. App.) 187 S. W. 753. This article is applied only to transactions between persons in which by sale and pui'chase the title to personal property is passed from one to another and the relation of debtor and creditor is created by general course of dealing, and does not mean one or more isolated transactions resting upon a special contract. Bixler v. Dolieve (Tex. Civ. App.) 220 S. W. 148.

This account is not an open account under the terms of the statutes. The plaintiff attempted to prove the account by evidence, and the testimony of Stidham was to the effect that these various items charged were reasonably worth the amount so charged. But Stidham was one of the plaintiffs, and the jury was authorized to believe any part of his testimony and to disbelieve any part thereof, or to reject the testimony as a whole.

The court instructed the jury to find for the plaintiff, and in this there was error. Where the testimony is given altogether by an interested witness, or witnesses, or comes from an interested source, the jury has the right to disregard such testimony altogether. Payne, Agent, v. Malone (Tex. Civ. App.) 239 S. W. 99S; Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 971; West Lumber Co. v. Goodrich (Tex. Com. App.) 223 S. W. 183, 192.

Therefore, we reverse the judgment and remand the cause for a new trial.

On Appellee’s Motion for Rehearing.

Appellees in their motion for rehearing do not question the ruling of the court in holding that the account to which the plaintiff made affidavit was not an open account under the terms ,of article 3736, Rev. Civ. Statutes 1925, but do complain of the ruling and conclusion that, when the testimony was given, altogether by an interested witness, the jury had the right to discredit any part or all of the testimony, and that the peremptory instruction was not authorized. We are cited to one of our own decisions, to wit, Hill v. Staats, 187 S. W. 1039, 1042, writ of error denied by the Supreme Court, in which we said: “Without citing further authorities, it is sufficient to say that we find that the trial court did not err in directing a verdict for defendant upon tiie facts shown. This conclusion is reached with the knowledge that the entire testimony upon the question of the instructions given to the chauffeur came from the lips of defendant and his wife, who both may be said to be interested parties. The testimony of appellee and his wife was positive and unequivocal, nor is there any circumstance disclosed in the record tending to discredit or impeach such testimony. See Felts v. Bell County, 103 Tex. 616, 132 S. W. 123; Malone v. Bank [Tex. Civ. App.] 162 S. W. 369; Christensen v. Christiansen [Tex. Civ. App.] 155 S. W. 995; Brooks v. Davis [Tex. Civ. App.] 148 S. W. 1107; Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788; Starkey v. Wooten Gro. Co. [Tex. Civ. App.] 143 S. W. 692; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572.”

Appellees also cite Dunlap v. Wright, 280 S.W. 276, 279, by Chief Justice Gallagher of the Waco Court of- Civil Appeals, in which the court said: “It has been frequently held, however, that, when the evidence of an interested witness is direct and positive on the point at issue, and where there are no circumstances in the record tending to discredit or impeach his testimony, a verdict. contrary thereto will be set aside, that such testimony will justify an instructed verdict, and that a judgment contrary thereto may be reversed and rendered. Joffre v. Mynatt (Tex. Civ. App.) 206 S. W. 951, 952; Starkey v. Wooten Grocery Co. (Tex. Civ. App.) 143 S. W. 692, 693, 694; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572; Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966, 972 (writ refused); Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039, 1042 (writ refused Com. Judges); McKeever v. Dittman (Tex. Civ. App.) 262 S. W. 1054, 1058; Daggett v. Worsham & Co. (Tex. Civ. App.) 264 S. W. 180, 185; Dallas Hotel Co. v. Newberg (Tex. Civ. App.) 246 S. W. 754, 756; Malone v. National Bank o'f Commerce (Tex. Civ. App.) 162 S. W. 369, 370; Houston v. Holmes (Tex. Civ. App.) 262 S. W. 849, 850; Long v. Shelton (Tex. Civ. App.) 155 S. W. 945, 946; King v. Worthem (Tex. Civ. App.) 37 S. W. 1133.”

See Still v. Stevens (Tex. Civ. App.) 13 S.W.(2d) 956; Sigmond Rothschild v. Moore, 22 S.W.(2d) 535, by the Beaurpont Court of Civil Appeals, and other cases, laying down the rule chat a peremptory instruction is justified where the only testimony is by an interested witness, and the testimony is positive and direct on the points at issue, and where there are no circumstances in the record tending to discredit or impeach the testimony.

But does the testimony in the instant case bring the case within the rule just-noted?

It will be remembered that O. M. Stid-ham and O. C. Thrasher, constituting the firm of Stidham & Thrasher, plaintiffs, relied on the contract with Schucht, for the work to be done by plaintiffs and the amount to be paid by defendant. Stidham, the only witness who testified, testified that he entered into a contract with Mr. Schucht during the year 1928, “to do some work.” He testified: “Our contract was, he had a lease over there, and he was to drill a well, and he was turning over some of his acreage and interest to Dr. Hargraves, and for so much money and so much interest, and he wanted a rig built on' there. The contract was, he wanted a rig built and what he wanted to know 'was what we would build it for, and what he wanted was a second hand standard rig and to furnish all material, and we finally agreed to build him a second hand rig and derrick for $2,750. We were employed by Mr.'Paul Schucht to haul two loads of cable tools from south of Mineral Wells, .Texas, to Paul Schucht yard at Electra, Texas, $437.00-, and furthermore we were to haul it back. There was no agreement on the sum to be paid for that hauling, we had been hauling for him on and off, hauling by the day or by the trip or whatever way he desired, depending on the work. I have been in the hauling business eight or ten years. I am acquainted with the reasonable value of the cost of hauling that kind of material the distance that it was out there in that vicinity. The price I charged for hauling the material is the usual and reasonable price charged in that territory for that kind of work. No" part of that item has been paid. Demands have been made a number of times. The first one is for materials furnished [for] digging cellar, hauling lumber and tools, and building standard rig and derrick, $2,750. Our agreement was that we were to do all of the work at .a flat price of $2,750; that is what we have set out, hauling that particular material and building the derrick. We built a rig and dug the cellar. That item has not been paid. * * * Demand has been made for the payment of it. The next was hauling a boiler from Mineral Wells, Texas, to Waggoner No. 1, $115.00. He had a boiler that he wanted us to move on that location. That was the agreed price for that job. The next item was hauling the load [of] No. 2 pipe [from] Electra to Wag-goner No. 1, $15.00. Thp only agreement we had about that was to haul by the day, or by the load, at whatever might be a fair price. I don’t think we had any agreement as to whether it would be by the day or by the load, just wanted us to haul it, that was about all, he wanted us to do the hauling. That was. a usual and customary and reasonable charge in that vicinity for that work. The next item, Nov. 1st, we hauled 2 loads standard tools [from] Electra to Waggoner No. 1, $45.00. He had more to.ols out there that he wanted hauled than was covered hy the original agreement. I think Not. 3, 1928 [evidently there is some mistake here] is the standard rig tools that were moved from the rig to Waggoner No. 1 at $30 a day, that was hy the day. Each of these items from Nov. 1928 down through Dec. 17th, 1928, are the usual and customary and reasonable prices charged for this kind of work in this territory. These items have not been paid and a demand has been made. These last items Nov. Sth to the 2Sth — hauled 7 loads (101½ bbls.) fuel oil from Wag-goner Refining Company to Waggoner No. 1 and Dec. 1st to the 19th — hauled 12 loads (174 bbls.) fuel oil from Wag. Ref. to Wag-goner No. 1, $69.60, is the usual and cus>-tomary price for doing that kind of work. No part of these two items have been paid though a demand has been made numerous times. The items beginning Jan. 1st through Jan. 31st, the charges are the usual and customary charges for that kind and character of work done in that territory where it was done, and I will say in that connection that most of the hauling is $35.00 a day, but we have done their hauling most of the time and we just charged them $30.00 a day. The items between Eeb. 13th to Feb. 23rd, there are ten items and the charges made are the usual and customary prices for'that kind and character of work in that territory. A demand has been made lots-of times for the payment of these items. The items from March 23rd, March 23rd three items on that date, the prices charged were the usual and customary prices for work of this kind and character in this territory. June 4th, hauling standard drilling tools from Waggoner No. 1 to Castleberry No. 1 and building standard rig (hauled three loads and shortage lumber from Electra) Castleberry No. 1, $1,320. That was the contract price for that item as agreed upon. A demand and refusal has been made for that item. There has been $1,320 paid on the whole account. June 28th I hauled three loads gas engine sills, bits from Wag-goner No. 1 to Hal Hughes Warehouse, $35.00, and that was the usual and customary price for such work in that territory. A demand has been made 'and refused. I would like to say in connection about that extra lumber on the Castleberry lease, those 3x12x18 were stuff that Mr. Schucht ordered out there to put on bridges — they were taken out at the same time that the rigs were finished out. A demand has been made and refused for these items. The credit the account shows is Dec. 21st, 1928, by check on account $100.00. June 21st, 1929, by check on account $1,250.00. Total $1,350. These credits are all of the payments made by the defendant on the account. The balance shows $4,758.24. That is the correct balance due by Mr. Schucht as itemized. I think I have known the defendant about fifteen years. I sent him a statement the first of each month.”

■Then follows what purports ibo be an open account, duly verified by affidavit, consisting of some forty-five different items, which items included hauling or other work done, for which charges were made from $7.50 to $1,350.

Evidently the testimony of Stidham was in the main with reference to ithese items. Appellant filed motion in the court below for a postponement of the hearing for one day, in order that he might go over the different items charged, and acquaint himself with them, and with view of being able to make an affidavit as to such account. He promised that he would specifically point out and would prepare his affidavit to said certified account and file the same. The account sued on was in part based on the special contract, and in" part for separate items for which no amount had been agreed. Nowhere in the testimony of O. M. Stid-ham is stated the amount charged for each item in the various items included in the so-called open account, and in each separate charge there was more than one item set forth. It will be seen from the read-’ ing of the testimony of O. M. Stidham that he attempted to follow such account in giving his testimony, but only stated that three of such grouped items were charged as agreed amounts, and that the remainder of such charges were made upon the hypothesis that the charges made therefor were reasonable and customary charges for such labor and material. We are of the opinion that the testimony of Stidham is not positive, direct, and unequivocal, such as to authorize the trial court to instruct a verdict in appellees’ favor. The testimony of Stidham covered some thirteen months, and consisted of attempted recital of the many items contained in the account rendered, based some on an agreement and some on the usiial and customary charges made therefor.

See Pope v. Beauchamp, 110 Tex. 271, 280, 219 S. W. 447, 450, where the court said: “Rearing in mind the rule clearly enunciated by this court, speaking through Judge Brown, in the case of Houston, E. & W. T. Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 972, that ‘it is the province of the jury to pass upon the credibility of the witnesses, and they may disregard, the testimony of a witness who has neither been impeached nor contradicted, if they believe his statements to be untrue from his manner of testifying, prejudice exhibited towards the opposite party, or his interest in the result, of the litigation, or other things indicating that the evidence is not reliable,’ we have concluded that it was a question of fact, for the jury to determine, as to whether plaintiff in error was a bona fide holder ol! the note. See, also, Pridgen v. Walker, 40 Tex. 136; Crosby v. Church [Tex. Civ. App.] 90 S. W. 587; Burleson v. Tinnin [Tex. Civ. App.] 100 S. W. 351; First Nat. Bank of Ft. Wayne v. Howard [Tex. Civ. App.] 174 S. W. 720.”

We think that, under the circumstances above, recited, appellees’ .motion for rehearing should be overruled, and it is accordingly so ordered.


author: CONNER, C. J.

text:
    CONTINENTAL JEWELRY CO. v. WILLIAMS.
    No. 12402.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1930.
    Rehearing Denied Jan. 24, 1931.
    ' Ewing Clagett, of Wichita Falls, for appellant.
    Ben W. Tipton, of Electra, for appellee.
   CONNER, C. J.

The appellant, Continental Jewelry Company, sued I. K. Williams, appellee, in the county court of Wichita county to recover $276 alleged to be the contract price of specified articles of jewelry sold to appellee on written order September 4, 1928.

Appellee defended on the ground, among other things, that he had been induced to execute the order or contract of purchase by the false and fraudulent statements of the plaintiff’s agent, who secured the order, that no other sale of the same class of merchandise had, or would be, made in the town of Electra, where he (appellee) was doing business.

The trial was before the court without a jury and resulted in a judgment for the defendant, and the plaintiff Continental Jewelry Company has appealed.

We copy the third paragraph of the trial court’s findings of fact, which reads as follows:

“I find that the plaintiff, acting through its agent and representative, the said C. B. Trippet, represented to the defendant that plaintiff had not sold the merchandise offered for sale to defendant and described in the contract sued on, to any other merchant in the City of Electra, Texas, and that the defendant would be the first in said city to receive said merchandise, and that the proposition was an exclusive proposition to the defendant ; that said representations were false, and were known to be false at the time made, and were made for the purpose of inducing defendant to sign said contract; that the defendant relied upon said representations and but for same said defendant would not have signed said contract, and would not have purchased said merchandise.”

The findings in all other respects fully supports the judgment, and the court concluded as a matter of law that:

“I hold as a conclusion of law that the fraud of the plaintiff, acting- by and through its agent, invalidated the contract, in its entirety, the contract is void and the plaintiff is not entitled to recover.”

The assignments of error and contentions in behalf of appellant are to the effect that the court erred in both findings above copied, for the reason that the order executed, by appel-lee did not contain the false statements relied upon so as to affect appellant with notice > thereof, but, on the contrary, expressly recites that:

“Salesman’s authority is limited to taking orders on this form and no change or addition is binding unless in writing on the original order, accepted by us at Cleveland, Ohio.”

On the last line of the printed part of the order just above the signature of the defendant is the following:

“We have read this order and find it complete and satisfactory.”

We will not undertake to formulate a definition of fraud as applicable to every conceivable state of facts, but in so far as relevant, we think it may be safely said that any false statement of an existing fact knowingly made, that materially induces another innocent person to do an act or incur an obligation that he would not have done or incurred but for such false statement, constitutes actionable fraud.

The case of Brown v. Search, 131 Wis. 109, 111 N. W. 210, by the Supreme Court of Wisconsin, is one in which a parent contemplated sending his daughter to a business college, and stated to the agent of such school that he desired sending his daughter to a school which would be attended by some of her former classmates. The agent replied that he had obtained contracts from the parents of several of such classmates, naming three of them. It appeared that in fact the agent had not obtained contracts from the parents of such classmates of defendant’s daughter, and that none of them attended the business college. The statements of the agent were relied on, and the parent signed a contract for the attendance of his daughter, but when sued oh the obligation defended on the ground that he had been induced to execute it by the false statements and representations so made. The court held that the representations of the •agent were fraudulent and material and entitled the parent to the rescission of the contract.

In Horne v. John A. Hertel Co., 184 Mo. App. 725, 171 S. W. 598, 600, by the Kansas City Court of Appeals, a sales manager of a business house represented to a prospective agent that the book which he should sell was •the only extant publication of that nature, when in reality there were similar publications which constituted a misrepresentation of an existing and material fact, which, having been shown to be false and to have been relied on by the agent, entitled the agent to recover his damages. In disposing of the case, the court said:

“There is no merit in the point that the representation in question did not relate to an existing and material fact. Whether or not the book was the only extant publication of its kind was a most important and material fact, and the statement that no other such book was on the market fell clearly within the purview of the rule that:
“ ‘Actual or positive fraud consists in deception practiced in order to induce another to part with property or to surrender some legal right, and which accomplishes the thing designed. The deception must relate to facts then existing, or which had previously existed, and which were material to the dealings between the parties on which the deception was employed.’ Bullock v. Wooldridge, 42 Mo. App. 356, and cases cited.
“The object of the deception, duly accomplished, was to engage the services of plaintiff, and we find it difficult to understand the argument in the brief of defendant that there could have been no actionable fraud, since plaintiff was impecunious and had nothing to lose. He had his time and ability to work, which both he and defendant’s manager appraised as a thing of value.”

The further contention in behalf of appellant, to the effect that appellee should have been denied a recovery on the ground that by due inquiry he could easily have learned of the falsity of the agent’s representations, must be overruled as without merit. Ford v. Sims, 190 S. W. 1165, by the San Antonio Court of Civil Appeals.

We finally conclude that the cases we have cited illustrate and support the conclusion we have reached, which is that the trial court’s findings of fact and conclusions of law should be adopted and the judgment affirmed.


author: PELPHRET, C. J.

text:
    EL PASO ELECTRIC CO. v. PORTILLO.
    No. 2504.
    Court of Civil Appeals of Texas. El Paso.
    March 12, 1931.
    Rehearing Denied April 2, 1931.

      Hunter, Brown & Brooke, of El Paso, for appellant.
    R. L. Holliday and H. T. Moore, both of El Paso, for appellee.
   PELPHRET, C. J.

During the month of November, 1929, appellant operated a street railway .line between the city of El Paso and what is known as the Smelter settlement.

In the Smelter settlement it maintained a switch a part of which extended onto the pavement of the county highway which passes through the settlement.

On the night of the 24th of that month, a collision occurred between one of appellant’s street cars and an automobile driven by one Bias Morales, and Maria Portillo, wife of appellee, was injured. The street car was on the switch at the time of the accident headed in a northerly direction, while the automobile was on the highway coming in a southerly direction.

This suit was filed by appellee to. recover damages for injuries to the person of his wife alleged to have resulted from the collision.

In response to special issues, the jury found that the operator of the street car failed to keep the proper lookout under the circumstances ; that such failure was a proximate cause of the injury to Maria Portillo; that it was negligence to fail to bring the street cai-to a stop before entering the switch; that such negligence was also a proximate cause of the injury; that the operator, before turning onto the switch, failed to sound the hell on the street car; that such failure was negligence and a proximate cause of the1 injury; that it was negligence for appellant to route its cars going northerly .over the switch; that such negligence was a proximate cause of the injury; that the driver of the automobile was not guilty of negligence; that he was not intoxicated at the time of the collision; that $1,000 would compensate appellee for the injuries sustained; that the collision was not the result of an accident; that the operator of the street car did' not- discover the peril in time to avoid the collision; that he failed to use ordinary care in the use of the means at hand to avoid the collision; that such failure was a proximate cause of the injury; and that Maria Portillo exercised ordinary care to keep a proper lookout for the street' car.

Judgment was rendered in favor of appel-lee, and the electric company has appealed.

Opinion. '

Appellant sets forth as errors the following: (1) That the issue of unavoidable accident was improperly submitted; (2) that the issue of discovered peril, as submitted, did not embrace all the elements thereof; (3) that the issue as to the sounding of the bell before going onto the switch should not have been submitted; (4) that the requested charge on the duty of a person in approaching a street car track should have been given;' (5) that certain special exceptions qf appellant should have been sustained ; (6) that the court should not have permitted the witness White to be examined as to the relative safety of operating street cars over a switch of the type involved and over a switch of a different type; and the issue relative to routing the ears over the switch' in a northerly direction should not have been- submitted.

It appears from the statement of appellant in its brief that the court had not, in the main charge, submitted the issue of unavoidable accident. Appellant objected to the charge as follows:

“1st. The charge fails to embrace or cover all of the issues pleaded and supported by the evidence, and fails to submit all of said issues. The issue of unavoidable accident is pleaded, and is nowhere submitted in the charge of the Court; Whereas, the statute requires that all issues pleaded and finding support in the evidence should be submitted in the Court’s charge.”
“8th. In reference to unavoidable cause the burden is on the plaintiff to prove the elements of his ease, and to prove that the accident was not the result of an unavoidable cause, and this being 0true the jury should be so instructed, that plaintiff can not make out a cause unless he has met this burden.”
In deference to these objections, the court prepared the following issue:
“Do you find from the evidence that the collision in question was the result of an unavoidable accident? Answer yes or no.”
“In connection with this issue you are advised by the term ‘accident,’ is meant an accident of any character which cannot be prevented by ordinary care and diligence.”

Appellant then interposed the following objection:

“Supplemental Issue No. A, given by the court relating to unavoidable accident is objected to for the reasons assigned in the objections previously filed to the charge of the court wherein we excepted to the charge because it failed to submit unavoidable accident and imposes too high a burden upon the defendant and a burden which is not imposed by law, and the definition of unavoidable accident is not sufficient to guide the jury in determining that issue.”

The court then modified the issue by omitting the word “unavoidable,’.’ and appellant filed the further objection:

“Since the above objection was urged, the court has changed the charge on unavoidable accident by erasing the word ‘unavoidable,’ objection is again renewed to the way and manner in which the court submits the question of accident. The question of unavoidable or inevitable accident is in the case both in law and in the pleading, and defendant is entitled to a correct charge upon the issue correctly imposing the burden, and the court’s supplemental issue A fails to meet this requirement of the jaw.”

Appellant here contends that the evidence raises the issue of unavoidable accident, and that the charge as given in effect placed the burden on it to prove that the collision was the result of an accident, or at least did not place the burden upon appellee as it should have done.

Appellee counters with the proposition that the issue submitted clearly indicated the question of fact to be determined and was therefore sufficient without an affirmative charge on" the burden of proof; that the appellant, having affirmatively pleaded unavoidable accident as a defense, assumed the burden of proving it; that appellant has waived its right to Object to the court’s failure to state the burden of proof on the issue by failing to request such a charge or tendering a proper charge; that its right to object is waived by its failing to make'the specific objection pointing out the error now complained of; that the court having affirmatively charged the jury on all issues submitting the appellee’s case requiring a finding from the preponderance of the evidence, if the finding is to be favorable to appellee, it is not error to submit the question of accident without mentioning the burden of proof, and, if error, it was harmless in view of the other findings; and that the issue of accident not being raised by the evidence, the submission of such issue was harmless.

The submission of the issue was requested by appellant and was submitted without any objection from appellee, and under the holding of the Commission of Appeals in the case of Rosenthal Dry Goods Co. v. Hillebrandt, 7 S.W.(2d) 521, 523, he cannot now be heard to say .that the evidence was insufficient to raise the issue. Conceding that in spite of the fact that appellee offered no objection to the submission of the issue in the trial court, the erroneous submission would be harmless if accident is not in the ease, we are of the opinion that the facts here, judged in the light of expressions of our Supreme Court on the subject, are sufficient to raise the issue.

In the recent case of Dallas Railway & Terminal Co. v. Garrison (Tex. Civ. App.) 30 S.W.(2d) 1108, 1109, the appellee sued for personal injuries resulting from a collision between a street ear and an automobile at a street intersection. The jury found that both the motorman and the driver of the automobile was guilty of negligence, but that negligence of the driver of the automobile was not a proximate cause of the collision. The Court of Civil Appeals, in discussing whether the trial court erred in refusing to submit a requested issue on the question of accident, said:

“Unavoidable accident, however, in" the nature of things, precludes the presence of negligence as a proximate cause. And where the evidence conclusively shows negligence on the part of both parties to a collision, and that the cause of same is well known, as was true in this case, no issue of unavoidable accident is raised, and it is not error to refuse to submit it to the jury. The testimony of the motorman and that of the driver of the automobile leads to the inescapable conclusion that both were guilty of negligence, and that such negligence proximately caused the collision.”

The Supreme Court granted a writ of error, however, on the ground, judging by the notation made, that .the Court of Civil Appeals was in error in holding that the evidence did not raise the issue of accident.

In the case of Rosenthal Dry Goods Co. v. Hillebrandt, supra, the facts, as stated by the Commission of Appeals, were:

“On 'the evening of the 16th of October, 1920, appellee was driving her horse and buggy down Highland avenue toward the business section of the city of Beaumont. It was dark. She had a flash light in her left hand, holding it high enough to throw the light beyond her horse’s head, thereby affording protection both to her and other users of the street. She was driving in a fast trot on the right-hand side of the street. ⅞ ⅞ * While thus driving she saw appellee’s truck approaching about 50 or 100 feet away, without lights, and on the wrong side of the street. To avoid the truck she pulled her horse as far to the right as possible, but the truck continued on the wrong side of the street at a speed slightly faster than that of her horse, striking her Jraggy, turning it over, and inflicting upon her the injuries sued for.”

The Court of Civil Appeals, 299 S. W. 665, 668, held that the question of unavoidable accident was not in the case, but the Commission of Appeals held that the evidence raised the issue and reversed the case on the ground that the issue submitted on the question of accident was erroneous and not harmless.

The facts, in Dallas Railway & Terminal Co. v. Darden (Tex. Civ. App.) 23 S.W.(2d) 739, 740, were:

“According to the testimony of the appellee he was the proprietor of a small drug store situated on Bowen street in the city of Dallas. On the day of his injury he started to deliver some merchandise to a customer. His car was parked almost in front of his store. Before getting into the car he looked in both directions to see if a street car was approaching but saw none. 1-Ie then started north in the direction of the place where his goods were to be delivered. In order to avoid a rough and unpaved portion of the street in front of the lot on which his store was situated he drove close to the street car track. While in that position the street car approaching from behind him struck his automobile, causing the injuries for which he sued.”

The Court of Civil Appeals held that the issue of accident was not raised by those facts and that erroneous submission of the issue was harmless, in view of the jury’s answer to issues of negligence. A writ was granted by the Supreme Court with the following notation:

“The C. C. A. erred in holding the error of the tidal court in charging the jury that the burden of proof was upon the defendant upon the issue of accident, was harmless, because the jury in response to other issues found that the defendant was negligent and acquitted the plaintiff of contributory negligence.”

We think we are safe in assuming that the writ would not have been granted if the court had not been of the opinion that the issue of accident was raised by the evidence.

Appellee further contends that appellant waived its right to object to the manner in which the issue was* submitted because he did not tender a proper charge on the burden of proof.

This position is contrary, we think, to the holding- of the Supreme Court in Gulf, C. & S. E. R. Co. v. Conley, 113 Tex. 472, 260 S. W. 561.

In that case the charge complained of was one involving the burden of proof, and the Court of Civil Appeals (236 S. W. 521) held that the charge was not affirmatively erroneous and therefore not reversible error in the absence of a requested instruction on the question. In reversing the ease the Supreme Court said:

“But in the instance .of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by [Vernon’s Sayles’ Ann. Civ. St. 1914j article 1971 take the place of special charges' and render it unnecessary that the latter be tendered. It is immaterial whether the matter objected to in the court’s charge is a mere defective or incomplete statement of the law or issue to be determined, or is affirmatively erroneous; objections which sufficiently specify the error will preserve the point on appeal, without the necessity of again directing the court’s attention to the same subject by special charge.”

See also 3 Tex. Jur. pp. 20S, 209, and authorities cited.

Therefore, if the objections interposed by appellant in the trial court sufficiently specified the error, appellant is entitled to a reversal of the judgment, unless, as contended by appellee, the erroneous submission of the issue was harmless, in view of the jury’s answers to the issues of affirmative negligence.

We are of the opinion that the several objections of appellant to the charge of the court, heretofore quoted, were sufficient to apprise the court of appellant’s contention that the issue should be so framed as to place the burden of proving that the collision was not the result of an accident upon appellee.

We have then left the very perplexing question of whether the submission of the issue, as submitted, was harmless, in view of the other findings of the jury. In discussing this very question the Court of Civil Appeals, in Dallas Railway & Terminal Co. v. Darden, supra, had this to say:

“The jury found that the collision and the injury were the proximate result of appellant’s negligence in several respects. The jury specially found that appellant’s motorman could, by the exercise of the proper degree of care, have avoided the collision and was negligent in not so doing. Those findings clearly evidence a conclusion on the part of the jury that the collision was the result of an avoidable accident. Certainly it cannot be assumed that the jury would have found directly to the contrary had that, issue been separately submitted in proper form. Hines v. Arrant ((Tex. Civ. App.) 225 S. W. 767. In this ease the plaintiff discharged the burden imposed by law when he proved to the satisfaction of the jury, or at least by a preponderance of the evidence, that his injuries resulted from the negligence of the appellant’s employee who was operating the street car. Under the record before us we think the error complained of should be treated as harmless.”

The notation made by the Supreme Court in granting a writ in this case is quoted above.

While we are fully aware that notations made by the Supreme Court in granting writs have no value as precedents and that the court often changes its views after a further study of the question, yet, where a question is presented as fully and forcefully as was the question discussed in the above opinion, the notation made is, to say the least, an indication of a very decided opinion of' the court on the question involved.

We can readily see how the court could be of the opinion indicated in the notation by virtue of its own holdings in G., H. & S. A. R. Co. v. Washington, 94 Tex. 510, 63 S. W. 534, 537, and Rosenthal Dry Goods Co. v. Hille-brandt, supra. The language used in the Washington Case was:

“We think the requested instruction should have been given, and the trial court erred in refusing same. The issue of unavoidable accident was clearly raised by this evidence, and such issue was not submitted to the jury by the court in his main charge. The defendant was not required to specially plead that the injury was the result of an unavoidable accident to entitle it to have- such issue submitted to the jury. The evidence was not only admissible for the purpose of contradicting the witness James Washington, but as a substantial defense under the general issues : and, if believed by the jury, it would have been a complete defense to the suit.

In the Hillebrandt Case the Commission, said:

“We agree with the conclusion of the Court of Civil Appeals [299 S. W. 665] that the charge was erroneous in form and subject to the objections timely made by the defendant below. It was indispensable to the plaintiff’s case, and the burden was upon her to that extent, to prove that her injuries resulted from the alleged negligence of the defendant. It was not necessary that the defendant plead specially that the injuries were the result of an unavoidable accident. This was put in issue by the general denial and imposed upon the plaintiff the necessity of proving that the happening was not an unavoidable accident. This necessarily was a part of her case. While this requires the proving of a negative, nevertheless it is in keeping with sound reasoning.”

While the last quotation was by the Commission of Appeals, yet the holding was expressly approved by the Supreme Court.

What we gather from the above expressions is that where the evidence raises the issue and it is either submitted or its submission properly requested, the plaintiff is not entitled to recover in the absence of a finding by the jury that the happening was not an unavoidable accident.

If that be the effect of those noldings, then the proper submission of the issue of accident would be necessary, regardless of what the jury might have found on other issues. In the case of Texas Interurban Railway et al. v. L. B. Hughes, 34 S.W.(2d) 1103, this court held that a finding by the jury that the collision was not due to an unavoidable accident could not be reconciled with other findings that the collision was the result of the negligence of appellants. Because of such conflict in the findings the case was reversed and remanded.

Nor do we agree with the contention of appellee that the issue was not erroneous by virtue of the fact that it pleaded unavoidable accident as a defense and thereby assumed the'burden of proving it.

The above holdings seem to be authority for the contrary view.

The jury having found with appellant on the issue of discovered peril, the manner of the submission of that issue could not be prejudicial to its rights, and we shall not here discuss the question presented by appellant’s second proposition. Appellant ob-jécted to the giving of the following special issues:

Question No. 6: “Do you find from a preponderance of the evidence that defendant’s employee, before turning from the main track on to such switch or side track, failed to sound the bell on such street car?”

Question No. 7: “Do you find from a preponderance of the evidence that such failure to so sound the bell, if defendant’s employee did so fail, was negligence on the part of such employee?”

The objection interposed by appellant reads:

“Question No. Six is objected to because no negligence should be predicated upon the failure, if any, to sound the bell or gong on the street car before entering the switch or side track. There is no evidence to support an adverse finding upon that issue. Eor the same reason question No. 7 is objected to, these two questions taken together may be considered as an indication to the jury that there was or may have been negligence in this particular. The same objection goes to question eight.”

Appellant in its brief contends that by the submission of issues 6 and 7 the court practically confined the defendant to the entry rather than the exit of the switch; that the charges were submitted in such a way as to indicate to the jury the absolute duty was imposed upon defendant to ring the bell before turning to the right side of the track; and that the submission of the issues in such manner may have indicated to the jury that the court thought the accident occurred at the entry to the switch.

It is undisputed that the switch in question runs onto the highway used by the public, .and that when a street car is on said switch it blocks the traffic on a part at least of such highway. This being true, then, we think, it was the duty of the motorman to exercise ordinary care in operating the street car so that those rightfully using the highway might do so with safety and that the exercise of such ordinary care, under certain circumstances, would include the giving of an alarm, or the sounding of the gong to advise persons on the highway of the fact that the car w’as about to turn onto the highway.

The other objections advanced by appellant in its argument were not included in the objections made in the court below, and therefore need not be considered. .

Appellant’s special charge No. 1 should not have been given; the charge given by the court in its main charge and those given at the request of appellant relative to the duty of a person riding in a motor vehicle and the keeping of a lookout fully covered the duty of Maria Portillo.

Appellee alleged, on paragraph 4-b of his petition, that the main line of appellant was along the side of the public highway; that at the point where the collision occurred appellant maintained a switch which projected out almost halfway on the public highway; that traffic coming toward El Paso necessarily traveled over and across said switch; that a street ear on the switch blocks the entire right of way of vehicles coming toward El Paso on the' highway; that to pass a street car on the switch the vehicles must leave the right-hand side of the highway and go upon the left-hand side; that the highway is in constant use by vehicles; that the switch is not necessary to the.operation of the street railway of appellant; that its use is dángerous; that it was negligent to maintain and use such switch at all; that ordinary care and prudence required, if such switch was to be used, that the street cars using the same should be run thereon only in the direction of El Paso, so that they would be running with the traffic on the highway and not against it; that ordinary care and prudence required that all street cars be brought to a complete stop before turning out onto the highway and intei’eepting the traffic thereon; that all means should have been used to warn persons using the highway that the street car was about to come upon the switch and thereby block a portion of the highway; that all means should have been used to avoid colliding with any person or vehicle on said highway; that all the facts and circumstances as set out were well known to appellant and its servants at the time alleged; that appellant’s servants failed to stop the street ear before turning out onto the switch, failed to use ordinary care and diligence to warn, the driver of the automobile in which appellee’s wife was riding of the street ear’s approach and of the fact that it was about to turn out onto the highway and block the right-hand portion thereof. And in 4-c that the use of the switch at the time alleged was unnecessary and dangerous; that there was no street car coming from the opposite direction; that no other reason existed making it necessary to use the switch; that ordinary care required that, under the circumstances, street cars should not be operated on the switch unless the same is necessary.

Those portions of paragraph 4-b in which the allegations were made that the use of the switch was unnecessary, that it was negligence to maintain and use the switch at all, and that ordinary care required that street cars on the switch be run with, and not against, the traffic, wore subject to the objection made. These things do not, we think, constitute negligence in themselves. We know of no law which would prevent appellant from maintaining a switch on the public highway or that would require it to operate its street cars with rather than against the traffic. These matters would, of course, be considered in deciding the question of whether it was negligent in the operation of a street car thereon, but cannot by themselves 'constitute such negligence as would sustain a judgment for damages. Galveston, H. & S. A. R. Co. v. McCrorey (Tex. Com. App.) 23 S.W.(2d) 601; T. & P. Ry. Co. v. Boyle (Tex. Civ. App.) 20 S.W.(2d) 927.

The special exception to paragraph 4-c should have been sustained by the court. Appellee’s right to recover did not depend upon whether the use made of the switch was necessary, or unnecessary.

Question No. 9, reading: “Do you find from a preponderance of the evidence that it was negligence on the part of the defendant to route its cars going northerly over the switch or. side track in question herein?” should not have been submitted. If routing its northerly bound cars over the switch increased the hazards, then appellant would be called upon to use a greater degree of care, but the mere routing could not, in our opinion, constitute negligence.

We have concluded that the judgment must be reversed, and the cause remanded for the reasons set forth above.


text:
    DAVIS et ux. v. SLOAN LUMBER CO.
    No. 12388.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    Rehearing Denied Jan. 17, 1931.
    McCart, Curtis & McCart, of Fort Worth, for appellants.
    P. Walter Brown, of Fort Worth, for appellee.
   CONNER, C. J.

The present controversy had its origin in the execution of an obligation and mechanic’s lien by appellant If. H. Davis and wife, given by them to secure the contract price of a building upon their homestead lot. The obligation and lien was later acquired by appel-lee, who later instituted suit to recover thereon. Appellants defended in that proceeding on the ground that the building was not in substantial compliance with the contract, and could not be made so. They disclaimed all interest therein, and prayed that the house be removed from their premises.

Upon a trial of the ease in the district court on May 28, 1928, appellants recovered a judgment in accord with their prayer. In entering the judgment it was ordered that Davis and wife be discharged from the obligation and lien and that the lumber company remove the improvements from the homestead lot within a period of thirty days from the date of the judgment, and provided that if it did not do so, Davis and wife should recover from the lumber company all of its right, title, and interest in and to such improvements.

Prom the judgment so rendered, the Sloan Lumber Company prosecuted an appeal, to this court. We affirmed the judgment on the 25th day of May 1920 [10 S.W.(2d) 356], and the lumber company neither filed a motion for rehearing nor applied for a writ of error to the.Supreme Court, but began the remo-val of the house on June 25, 1029. Davis offered resistance to the removal, claiming that the title and right to the building had become vested in him by virtue of the judgment mentioned. Whereupon, the lumber company applied for and was granted a writ of injunction preventing opposition, and completed the removal of the house on or about July 6,1929.

Later, in the game proceeding, Davis and wife, for the first time, presented their motion to dissolve the writ of injunction and by way of cross-action sought to recover from the lumber company the rental value of that part of the homestead lot occupied by said defective improvements from June 10, 1927, to July 6, 1929, at the rate of $15 a month, aggregating the amount of $370; and also damages for, annoyance, inconvenience, and physical discomfort caused by said improvements remaining on the homestead lot during said time, in the amount of $500; and the further sum of $100 damages alleged to have been occasioned by the removal of the improvements, together with the value of the improvements, in the amount of $1,500. The court overruled the motion to dissolve the writ of injunction, on the ground, among other things, that the improvements had been actually removed prior to the time when the court was called upon to .act upon the motion, and further sustained objections to the cross-plea on the theory that that portion of the original judgment providing that, if said improvements were not removed within said 30 days, the same should be forfeited to Davis and wife, was not supported by the pleadings and was void, and further that the damages sought in the cross-plea other than the $100 occasioned by the removal had been litigated and determined in the original proceeding. Davis and wife having declined to amend, the' further order was that the cross-action be dismissed. And it is from this last judgment that Davis and wife have prosecuted the present appeal.

The cross-action was substantially a new suit, and we think there can be no doubt of appellee’s contention that -the damages claimed, within the jurisdiction of the court on the cross plea, other than the alleged value of the improvements, were involved and disposed of in the original proceedings. So that, the vital question presented and insisted upon in behalf of appellants on this appeal is whether the right and title to the building involved in this controversy became vested in appellants, Davis and wife, prior to its removal by virtue of our affirmance of the court’s order' contained in the original judgment that a failure of appellee lumber company to remove the house within 30 days from the date the judgment became final had that effect. It is not contended that literal effect can be given to the terms of the original judgment declaring the forfeiture. In other words, the position of appellants now is that the appeal from the former judgment arrested the operation of that judgment, but that the right of appellants is fixed by the judgment of affirmance by this court and of the undisputed fact that the appellee company failed to remove the house within 30 days from the date of our judgment, on to-wit, May 25, 1929.

We think there can be no merit in this appeal. It is to be noted first that the trial court ruled that the order of forfeiture was void for want of any pleadings, in the original case authorizing it. We need not cite authorities in support of the-ruling that a judgment unsupported by the pleadings is void and appellant’s pleadings in the original proceeding has not been made a part of the present record, and if, therefore, under any circumstances, the court could legally enter such an order, it cannot now be said that the court erred in entering the judgment below declaring the order void and unsupported by the record. But if this be not true, the judgment now under review is supported by other reasons. While, by the strict terms of the common law, time is of the essence of a contract, courts of chancery long since, in order to avoid forfeitures or to ameliorate hardships arising by the enforcement of the strict rule, held that time, in the enforcement of contractual relations of any kind, would not be regarded as the essence of the contract unless made so by express terms, by the ndture of the contract or circumstances of the case, or by the nature and condition of the property; the remedy of the complaining party being an action for damages. See Simkins on Equity, 701, and authorities there cited.

£3] We have carefully «examined appellants’ pleadings in their cross-action and fail to find an allegation of any fact or circumstance relating to the house in question or of its removal which would incline a chancellor to rule that the mere failure of 'the ap-pellee lumber company to remove the house as ordered within the 30 days allowed would have the effect in equity of vesting in appellants a building for the construction of which they did not pay, and in which, in the original proceeding, they disclaimed any interest and prayed for its removal.

There is yet another answer to appellants’ contention in the present appeal. It appears upon the face of appellants' pleadings, as well as from the undisputed facts; that in the former proceedings the judgment below was affirmed by .this court on May 25, 1929, as stated; that on the thirty-first day thereafter, appellee began the removal of the house, which was 'completed within 20 days thereafter. By article 1877, Rey. Civ. Statutes of 1925, 'it is expressly provided that:

“Any party desiring a rehearing of any matter determined by any Court of Civil Appeals, may, within fifteen days after the date of entry of the judgment or decision of the court, or the filing of the findings of fact and conclusions of law, file with the clerk of said court his motion in writing for a rehearing thereof.”

Another article (1880) provides that a motion for rehearing may be determined at any time after five days from the service of notice upon the opposing party of the filing of the motion of rehearing. Appellee was not compelled to file a motion for rehearing, but it nevertheless was entitled to 15 full days after the rendition of the judgment in which to determine whether a motion for rehearing should be filed. During this period the judgment was inactive under the circumstances shown here. So that we are of the opinion, even though it should be held that the district court in the original proceeding was authorized to enter the order of removal that it did, nevertheless, as appellant in effect assumes, the appeal from that order suspended the operation of the judgment until the final judgment of this court, and the judgment of this court did not become final so as to preclude appellee’s right of removal of the house within 30 days until after the expiration of the period allowed appellee for filing its motion for rehearing, and it is undisputed that appellee completed the removal within 20 days after that date.

The judgment below is in all things affirmed.


author: DUNKLIN, J.

text:
    KEYSTONE PIPE & SUPPLY CO. v. WRIGHT et al.
    No. 12409.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1931.
    Hampden Spiller, of Lubbock, and Slay & Simon and Cecil Rotsch, all of Fort Worth, for appellant.
    Kilgore & Rogers and J. T. Montgomery, all of Wichita Falls, for appellees.
   DUNKLIN, J.

The Keystone Pipe & Supply Company instituted this suit against Y. O. E. Wright and R. I. Owen, as partners, and the First National Bank of Wichita Falls, to recover a balance of $2,808.06 claimed to be due for oil well supplies sold by plaintiff to the partnership firm, and for foreclosure of a statutory furnisher’s lien as against them and also against the defendant hank on two oil leases held by the partnership at the time said supplies were sold, and on which Hie same were used. It was alleged that defendant bank was claiming some interest in the leases but that the same was inferior to the lien claimed by plaintiff.

A judgment by default was rendered in plaintiff’s favor against defendants Wright and Owen for its debt, but plaintiff was denied a foreclosure of lien as against the defendant bank, and from that decree it has prosecuted this appeal.

The supplies sold by plaintiff were used by Wright and Owen on two oil leases situated in Archer county which they owned; and on December 24, 1927, plaintiff filed in the office of the county clerk of that county its claim of a statutory lien on those leases for the supplies so furnished. The lien claimed was under and by virtue ot the provisions of article 5473, Rev. Oiv. Statutes, and the steps taken to fix the lien were under and by virtue of the provisions of articles 5476, 5453, 5455, and 5467.

By the terms of article 5473, one furnishing supplies) or material used for such purposes as Wright and Owen used the supplies purchased by them is given a lien upon the supplies so furnished, and upon the lease upon which they are used; and article 5453 provides that one who furnishes such material under a contract with the leaseholder which is not in writing, may fix said lien by filing an itemized account of his claim supported by an affidavit showing that it is just and correct and that all lawful offsets, payments, and credits known to affiant have^ been allowed. Article 5455 prescribes a form to be used for such affidavit, and that form was followed by plaintiff in the steps taken by it in the present suit; the affidavit containing the statement that the supplies were furnished to Wright and Owen under a contract with the ■plaintiff; and it is to be inferred that that contract was in parol'.

Article 5467 reads as follows:

“When labor is performed by the day or week, then the indebtedness shall be deemed to have accrued at the end of each week during which labor is performed. When material is furnished, the indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay for such material at a specified time.”

The principal question presented here for our determination is whether or not the affidavit so filed by the plaintiff was filed within the time required by article 5467, just quoted.

As noted above, the affidavit claiming the lien was filed for record in the office of the county clerk of Archer county, on December 24, 1927, and the account'attached to the affidavit as a part thereof shows numerous items of supplies sold to Wright and Owen on divers dates, beginning November 26, 1920, and ending November 22, 1927. In the account so filed with the county clerk, the following items are charged as accruing during the year 1927:

2/12 int. on noto $1000.00 from 1/13 to 2/13.$ 6 66
3/12 int. on note $1000.00 from 2/12 to 3/2. 6 66
4A1 int. on not© $1500.00 int. 2/11 to 4/11. 20 00
7/20 int. on note $1500.00 from 4/11 to 7/20. 33 00
S/15 int. on note $522.23 from 7/15 to 8/15. 3 48
3/14 int. on note $2300.00 from 7/15 to 9/15. 30 06
12/16 H 1848 l-¾," steel lip union .10
1 ¾ x 2" bile Nipple .20
1 ⅛ x 8 Blk Nipple .08
1 ⅜, Mclit coupling .05 .25
Balance_$2808 06'

• And the same with the balance stated is the concluding page of the account. The first item shown in the account at its beginning is the following: “1926 cr. bal. bit. forward $2223.83.” But nowhere in the account are those credits itemized. Nor was there any pleading or proof as to when those credits arose, or when or how they were applied on •the items charged against Wright and Owen.

In plaintiff’s petition it was alleged that Wright and Owen executed to plaintiff their promissory note for the principal sum of $2,300, dated July 15, 1927, drawing interest at the rate of 8 per cent, per annum and 10 per cent, attorney’s fees; that the same was executed on their said account with plaintiff and there was a prayer for recovery of principal, interest, and attorney’s fees on that note, in the aggregate sum of $2,648.00. The petition also prayed for recovery upon an alleged contract in writing executed by Wright and Owen to pay plaintiff the sum of $254.79 for 15 joints of 6-3/8” casing, and in the account filed the item for that casing is included as a charge made on October 28, 1927; and that item, together with the note for the principal sum of $2,300 with principal and interest and attorney’s fees, represented the full amount for which plaintiff sued; and $2,S08.06, alleged as the balance due on said account, was the full amount for which a lien was claimed. The alleged contract to pay $254.79 was introduced by plaintiff, and instead of being a contract of sale, it was a lease in writing, of date October 28,1927, of the casing, and by its terms Wright and Owen agreed to pay rentals for the use of the casing and to return it to plaintiff at the expiration of the lease. It further provided that the pipe was to he used by Wright and Owen on a lease held by them on the W. M. Miller farm Denton county school lands. The lease also gave the lessees the right to purchase the pipe for a stated price, and in the event that option should he exercised, then the lessor would execute ,to them a bill of sale therefor. In that connection, however, the leáse further stipulated as follows:

“It is expressly understood, however, that this right is purely optional, and that the lessee has not and shall not -have any title or interest, legal or equitable, in or to said property under this contract unless and until said option is exercised and said price i>aid.
“All indebtedness becoming due from lessee to lessor under this agreement shall bear interest at the rate of 8 i>er cent, per annum from and after the time when such payments become due. If lessee should convert the above described property or any part thereof to. his own use and benefit, or if lessee should fail to return or surrender said property or any part thereof .to lesso*r when under the terms of this contract said property is returnable to lessor, then lessor shall be entitled to interest at the rate of 8 per cent, per annum from the time when said property is returnable to lessor, upon the value thereof which said value is hereby fixed at the purchase price of which lessee has option to purchase hereunder.”

I. E. Horwitz, president of plaintiff company, testified in-part as follows:

“In July we took a new note for $2300.00, due in sixty days. That represented all he ■owed us at that time. We took the note as evidence of the account.

“He settled the account by his note and we have sued on the note and ask for attorney’s fees on it, I think that is right, my attorney is taking care of .that. We never charge over eight per cent, interest. This note bears eight per cent, interest. I think the note and interest is included in that amount of $2808.06. The attorney’s foes are not interest. There is no interest on them. In July, 1927, we took a new note for the amount he was owing u«, and that note was made payable in sixty days. 1-Ie owed us $2300.00 and it was due, and with interest on the note it represents the amount for which we are suing, $280S.00.
“We had no special agreement with Mr. Wright, except of course in our business relations with him, -we .took notes on numerous occasions and it was our understanding he could reduce those notes at maturity and the balance could be renewed. We sold him something like 300 feet of 6-5/8ths inch casing; we had a contract in writing 'with _ reference to 15 joints of casing. My attorney ought to have that contract. We rented him this pipe with the privilege of buying it. This contract is dated the 2Sth of October, 1927. In filing our affidavit and lien I don’t know whether we made reference to that particular contract, my attorney handled that for us, I don’t know what he put in it. Mr. Wright bought this pipe, I said he bought it, he still has it out there, I presume they intended to keep it when they didn’t return it. We made this contract with him and charged it up to him on the open account. (The defendant offers in evidence the rental agreement.) The agreement with reference to the pipe is explained in the written contract, for this $254.00 worth of pipe that we rented him. * ⅜ *
“The charge for this 300 feet of 6-5/8ths casing was entered against him on October 2S, 1927, and it was 85 cents a foot. Under the terms of the contract he did not exercise the option to purchase the pipo. As a ma tter of fact, that casing was not returned. He has the casing out there on a rental basis and never returned it. We charged him with the value of the pipe and with the rental of it and when he returns it he gets credit for the full value and pays the rental price. If it is never returned a charge is made for the full purchase price. The price was provided in the contract that the pipe if purchased should be 85 cents a foot. * * *
“We sold this material to Wright and Owens. The statements show 2 — 20-—60, which means two per cent, in twenty days, sixty days net. The term means that there is no discount allowed on the bill after the 20th of the following month, that’s what it refers to. We expect payment on the accounts in sixty days. In printing the notations on our bills, that’s the usual method of the supply companies. On our account we charge interest after sixty days. We allow them sixty days and charge them interest from the end of the sixty days. We don’t charge them interest from maturity. On their account we charge them interest after sixty days on the amount. On every statement we sent out we allow two per cent, if paid in sixty days and net in sixty days. I think that appears from most of the statements.
“That is true as to all new items sold them, and as to second hand items it was thirty days net, but I don’t know what we put on the statement. There is no discount on second hand items1, it ⅛ thirty days net, but we never charged interest on any account that wasn’t sixty days old. I think that statement appears in our invoices. We charge eight per cent, interest. The interest on their account was charged on the note. AVe didn’t charge any interest on the account at all. We did not say anything tó Mr. Wright or Mr. Owens about any such provisions you are inquiring about, -that is, I didn’t say anything to them about it. ⅜ * ⅜
“I would have to see the rental agreement in order to tell you what it provides. The price stated in that contract was to be paid at our office at Fort AVorth, payable at the execution of the contract; it was not paid. He didn’t pay us any rental on the pipe; we just waived it at the time of the execution of the contract for Mr. Wright. He never returned this pipe; he told us it was out there on the lease. * * *
“The contract was mailed to them and we had no agreement with them about what the terms of the accounts were.”

It is apparent that the word “accrued,” employed in article 5467 of the statute quoted above, was used in the sense of “due” ; and by the opinion of Chief Justice Cureton in the case of Ball v. Davis, 118 Tex. 534, 18 S. W.(2d) 1063, it has been settled that in order to fix a statutory mechanic’s or furnisher’s lien, it is necessary that the affidavit and account filed must show that a sum certain is due and the date when due.

The note for the principal sum of $2,300 sued on in connection with the account filed, shows that the same was given for past-due items of material furnished and interest thereon, with no showing when any of those items became due; the account showing that interest had already been charged for similar prior notes which were renewed by the note sued on of ddte July 15, 1927. Even though it could be said that July 15, 1927, was the due' date of all items of supplies' furnished prior to that date, still no lien was created therefor because the affidavit and account were filed more than four, months after that date. Furthermore, according to the testimony of plaintiff’s president, I. E. Horwitz, all the supplies furnished were sold on a credit of 30 to 60 days. However, in this connection, we will say that the taking of the note would not, of itself, have the effect of a waiver of plaintiff’s furnisher’s lien, if the same was in fact fixed under the provisions of the statute,- as appellee seems to contend. Pope v. Graham, 44 Tex. 196; Farmers’ & Mechanics’ Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Breckenridge City Club v. Hardin (Tex. Civ. App.) 253 S. W. 873.

The account filed by plaintiff as a lien shows an item of date October 28,1927, for “15 joints 6-5/8", 20# casing, 299’ 9" .85 254.-79.” That item is charged as for easing sold. However, plaintiff introduced in evidence the rental contract already noted, which was also pleaded by it as evidencing a sale. That contract shows on its face that that casing was rented for a stated price, and specifically that the contract was one of rental and not of sale. Nor was there any allegation in plaintiff’s pleading nor showing in the affidavit filed with the account as to when and how that written contract ripened into a conveyance of title, and the date thereof and the due date of the amount of purchase price owing under such passing of title. Accordingly, plaintiff failed to establish its alleged lien for that casing.

The account filed shows several items other than the one for casing last discussed, which were sold after July 15, 1927, the date of the note sued on, and some of those sales occurred within the period of four months next preceding the filing of plaintiff’s attempted lien; but it conclusively, appears from the uncontra-dicted testimony of I. E. Horwitz that those items were satisfied by credits which he admitted had been allowed the partnership firm on their account; his testimony being that excluding the item for casing noted above, the note of date July 15, 1927, represented all that the partnership firm now owes the plaintiff.

Upon the trial there was an agreement of counsel for plaintiff and the defendant bank that the bank had a lien on the leases in controversy which was duly filed for record on December 19, 1927, some five days prior to the filing of plaintiff’s purported furnisher’s lien, and that the bank has since become the owner of those leases.

From the foregoing, we conclude that the judgment of the trial court denying plaintiff a decree establishing and foreclosing its alleged lien on the leases in controversy, and quieting the defendant bank in its title and possession of those leases, should be and the same is hereby affirmed. The judgment in plaintiff’s favor against defendants Wright and Owen, of which no complaint is made here, is left undisturbed.


author: SELLERS, J.

text:
    NATIONAL CASH REGISTER CO. v. GOULD.
    No. 3981.
    Court of Civil Appeals of Texas. Texarkana.
    March 5, 1931.
    T. B. Ramey, Jr., and Truman Warren, both of Tyler, for plaintiff in error.
    E. A. Landman, of Athéns, for defendant in error.
   SELLERS, J.

Appellant instituted this suit against ap-pellee in the county court of Henderson county, Tex., on January 30,1928. Suit was predicated upon a written instrument signed,

“Fields & Gould by F. B. Gould” ; F. L. Gould being tbe appellee herein. Such instrument provided for delivery by appellant of one cash register and tbe payment by appellee of tbe sum of $200. Appellee by bis answer admitted the signature, and raised two issues: Was appellee member of tbe partnership of Fields & Gould at tbe time be signed such instrument, and, if not, was be nevertheless liable on such instrument?

A trial was bad before tbe Honorable A. B. Coker of Henderson county without the intervention of a jury on April 26,1929. At tbe completion of tbe testimony of appellant, ap-pellee moved tbe court to enter judgment for appellee, which said motion the judge sustained and entered judgment for appellee. The appellant excepted to this judgment, and has duly prosecuted his appeal by writ of error to this court for review.

Bequest for conclusions of law and findings of fact was filed with tbe county clerk of Henderson county, Tex., on June 12, 1929. A. B. Coker, county judge of Henderson county, Tex., sitting as judge in this case, filed bis conclusions of law and findings of fact with the county clerk on July 11, 1929. The term of county court at which said cause was tried adjourned and ended on June 30, 1929.

It appears from the above facts that the trial court failed to file findings of fact and conclusions of iaw within ten days after tbe adjournment of the term of court at which judgment was entered, and the appellant assigns such failure on the part of tbe court as error.

We do not think that appellant's assignment in this case should bo sustained, and, without discussion of tbe question, we deem it sufficient to quote from tbe very recent case of Hewitt v. Green (Tex. Civ. App.) 28 S.W.(2d) 892, 893, as follows: “However, as there is a full statement of facts with the record, duly approved and agreed to by counsel for both parties, we do not think the failure of the trial court to file findings of fact and conclusions of law within the ten days as provided by law should require a reversal of this case. Especially is this true in view of the fact that no bill of exception was taken by plaintiff to the failure of the trial court to file the findings and conclusions of law in proper time. The delay of the trial court may have been caused or contributed to by some act or omission of plaintiff. An appellate court will not reverse the judgment of a trial court for the failure of a trial court to comply with a rule of procedure which might be excused or explained by the judge, unless the judge has been given the opportunity to explain, and the only correct method of obtaining such explanation is by bill of exception, and plaintiff, having taken no bill of exception, is not entitled to a reversal of the judgment for the failure of the judge to file the conclusions in pr'oper time. Bray v. Peters et ux. (Tex. Civ. App.) 283 S. W. 591 (writ refused).”

We have carefully considered the agreed statement of facts, and reached the conclusion that the same amply supports the judgment 'entered by the trial court.

The judgment is affirmed.


author: BAUGH, J.

text:
    EVANS v. DE SPAIN.
    No. 7546.
    Court of Civil Appeals of Texas. Austin.
    Dec. 17, 1930.
    Rehearing Granted in Part and in Part Overruled March 4, 1931.

      J. A. Thomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, for appellant.
    Roy L. Walker and J. C. Abney, both of Lampasas, for appellee.
   BAUGH, J.

Appellant and appellee submitted certain matters in controversy between them to arbitration under the provisions of title 10 (articles 224 to 238), R. S. 1925. Appellant attacked the award of the arbitrators on several grounds and sought to have same set aside. The district court sustained the award and entered it as judgment of the court. Hence this appeal.

The ease arose as follows: A. O. Allen and Mattie Sanderson owned a 3,000-aere ranch in Lampasas county. They leased it to A. J. De Spain for a period of three years, beginning October 31, 1928, at an annual rental of $2,250, $1,750 was then paid, and $500 retained by lessee to secure the construction by lessors of certain fences they agreed to build within 40 days. Appellant bought said ranch on February 4, 1929. It appears that a controversy arose over the lessors’ failure to build the fences; that an attempted resale by Evans of said property was interfered with by De Spain who claimed damages against the property because of the failure to complete said fences; and that oh "September 25, 1929, an arbitration agreement was entered into between Evans and De Spain, in which Evans was designated as plaintiff and De-Spain as defendant, the pertinent portions of which read as follows:

“It now appears that defendant claims said fence was not completed and is demanding damages from plaintiff by reason thereof and plaintiff is claiming that said contract has been forfeited by reason of said De Spain having paid to A. G. Allen said sum of $500.00 prior to the completion of said fence.
“The plaintiff further claiming damages by reason of A. J. De Spain having interfered with the sale of said land and having broken up a contemplated sale of said land, plaintiff having actually paid the sum of $1107.50 dollars to real estate brokers for securing a purchaser for said land.
“And whereas said parties desire to arbitrate such differences and matters in dispute in the manner provided by law.”

Then followed designation of arbitrators, direction that they proceed under the statute, and a waiver of-all rights of appeal from their findings.

On September 26, 1929, said arbitrators' filed with the district clerk their findings and award, as follows: “We find that under the terms of said lease contract that the said A. J. De Spain complied with the terms thereof and is entitled to a judgment for the sum of $1800.00 damages in settlement of the balance 'due under the terms thereof as against the said J. W. Evans, and in addition thereto is entitled to the possession of said property so leased until the 15th day of December, 1929, on which date he shall surrender possession thereof to the said J. W. Evans, and all claims of any and all characters submitted to us, including damages claimed by plaintiff for defendant breaking up land sale shall and is hereby settled between said parties.”

The award being a statutory award and the right of appeal waived, it became the duty of the court, if such award is valid, to enter it as the judgment of the court, and in so doing the court’s acts are purely ministerial. Article 231, R. S. 1925; 4 Tex. Jur. 694. While article 233 provides that, where no right of appeal is reserved in the agreement, the decision of the arbitrators shall be final, such an award can be attacked in any event for partiality, fraud, misconduct, or gross error. Ridgill v. Dupree (Tex. Civ. App.) 85 S. W. 1166; Robbs v. Woolfolk (Tex. Civ. App.) 224 S. W. 232; 4 Tex. Jur. 680, and cases there cited. And an award of the arbitrators in excess of the authority given them by the agreement is void, unless the excess is such as may be disregarded and the valid award left standing. Fortune v. Killebrew, 86 Tex. 177, 23 S. W. 976.

The record does not disclose upon what evidence the arbitrators reached their decision. The agreement above set out submitted to the arbitrators three questions:

1. Damages to De Spain resulting from the failure to complete the fences agreed to be built.

2. Whether De Spain had forfeited his lease on the ranch.

3. Whether De Spain was liable m damages to Evans for interfering with the sale by Evans of said ranch.

It is not clear upon what theory Evans was charged with being liable for damages for the failure of Allen to build the fences in question. The record shows that Evans bought the ranch subject to the lease thereof by De Spain, and that he did not assume Allen’s contract to build the fences. Only $500 was reserved by De Spain out of the first year’s -rental to protect him against Allen’s failure to fulfill such contract. The time fixed in the lease for Allen t-o complete the fence had already expired before Evans bought the ranch, and the breach complained of was apparently made by Allen. The only evidence in this record, which was nowhere contradicted by De Spain, as to the amount of that item of damage to De Spain, was that he had only claimed about $200 damage on the fence account. The major portion, therefore, of the award of the arbitrators must have been based upon the surrender by De Spain of the premises before the expiration of his three-year lease.

The only matter submitted to the arbitrators in this respect was whether or not De Spain had forfeited said lease. No authority was given to said arbitrators to terminate it otherwise. If De Spain had not forfeited, it remained a valid binding contract with which the arbitrators had no further1 concern. They expressly found that De Spain had complied with all the terms of said lease; and then undertook to oust him from the premises of their own accord at a future date, a matter not submitted to them in the arbitration agreement, and which they had no authority to determine. Their finding and award in that respect is therefore void, unless it can be ignored and the award of money damages sustained, as held in Fortune v. Killebrew, supra. However, these two findings cannot be separated. It is obvious, we think, that much of the money award against Evans was made as a part of, and dependent upon, the surrender by De Spain of the premises on December 15, 1920, instead of his retaining same until the expiration of his three-year lease. Neither, therefore, can stand independent of the other, and, because a part thereof is void, the entire award should have been set aside by the district court.

Nor can the appellant segregate .on this appeal the matter of the termination of the lease in his favor from the matter of the money judgment against him, and appeal only as to the latter. The judgment is clearly indivisible; and the appeal necessarily calls in issue the controversy in its entirety. His appeal must be from the judgment in its entirety. He cannot claim its benefits and disclaim its burdens, when clearly without the burdens imposed the benefits he claims would not have been awarded to him.

The judgment of the trial court sustaining the award of the arbitrators is reversed, and the cause remanded, with instructions to the trial court to proceed with the trial of the case as if no award had been made.

Reversed and remanded, with instructions.

On Motion for Rehearing.

In his motion for rehearing, appellant insists that the case be reversed and rendered, instead of being remanded with instructions. We have concluded, upon further investigation, that appellant is correct.

The only issue before the trial court was whether or not the award of the arbitrators should be set aside or entered as the judgment of the court. The trial court had no authority to alter or amend that award, nor to reopen the same on its merits. The only jurisdiction, if the award were valid, under article 231, R. S. 1925, was to enter same as the judgment of the court; and in that - respect his acts are purely ministerial. Having concluded that the award as made was void and should be set aside, the parties are relegated to their rights under their contracts. Mottier v. Nilson (Tex. Civ. App.) 22 S.W.(2d) 325; 5 C. J. 167, 204.

This icourt should render the judgment which should have been entered by the trial court. Judgment of the trial court is, therefore, reversed, and judgment here rendered setting aside the award of the arbitrators entered as the judgment of that court, without prejudice, however, to any rights of either party arising under their contract.

Motion granted, judgment of trial court reversed, and judgment rendered.