author: SMITH, J.

text:
    EISENHOWER v. BROWN.
    (No. 7907.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1928.
    Rehearing Granted March 28, 1928.
    1. Brokers <i&wkey;94 — Broker cannot contract for sale of principal’s land, unless clearly authorized by employment contract.
    Broker has no authority to enter into contract for sale of principal’s land, unless clearly given such power by contract of employment; his ordinary authority being merely to find purchaser ready, able, and willing to enter into contract on terms specified by, or acceptable to, principal.
    2. Brokers <&wkey;-l06 — Owner’s prior relations and dealings with broker, local custom, and other circumstances showing intent to empower broker to contract for sale of land may be considered in determining his authority.
    Prior relations between owner and broker, dealings between them, local custom, and any other circumstances tending to establish owner’s intent to invest broker with power to make contract of sale binding on owner may be resorted to in determining broker’s authority.
    3. Brokers <&wkey;94 — Broker employed by contract binding owner merely to sell and convey land to any purchaser procured by broker exceeded authority in executing contract of sale.
    Broker, whose employment contract bound owner simply “to sell and convey said tract of land to any purchaser procured by” broker and pay latter stipulated compensation “for procuring a purchaser,” exceeded his authority in executing contract to sell and convey land, in absence of showing of any extraneous facts or circumstances tending to enlarge broker’s authority beyond that expressed in contract.
    4. Brokers <&wkey;>94 — Broker’s authority to execute contract of sale is not usually inferred from use of terms “for sale,” “to sell,” etc.
    Broker’s authority to bind his principal by contract of sale is not usually inferred from the use of terms “for sale,” “to sell,” and the like.
    5. Brokers (&wkey;>94 — Specific performance of broker’s unauthorized contract for sale of land will not be required.
    Courts will not require specific performance of contract for sale of land, executed by broker without owner’s authority.
    Error .from District Court, Hidalgo County ; J. E. Leslie, Judge.
    Suit by E. A. Brown against H. W. Eisenhower by his guardian. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Cameron & Epperson, of Edinburg, for plaintiff in error.
    Geo. P. Brown, of Edinburg, for defendant in error.
   SMITH, J.

In the original disposition of this case the judgment of ,the trial court was ordered affirmed, in an opinion delivered on February 1, 1928. Upon consideration of the case in response to plaintiff in error’s motion for rehearing, we have concluded that we erred in affirming the judgment, which must therefore be reversed. The original-opinion will be withdrawn, and this one substituted therefor.

It appears from ,the record that H. W. Eisenhower owned lots 1 and 24, in block 1S8, in Edinburg, Hidalgo county, and on December 1, 1925, entered into the following contract with Thomas R. Patrick:

“I, the undersigned, in consideration of the services rendered and to be rendered by Thomas R. Patrick in disposing of the tract of land hereinafter described, do hereby agree 'to sell and convey said tract of land to any purchaser procured by him for the following price and on the following terms, * * * ($1,000.09 cash). * * * I agree to furnish an abstract of title to said tract brought down to date showing a good merchantable title in me. Said tract of land iS situated in Hidalgo county, Texas, and described as follows: * * * I give and grant. to the said Patrick the exclusive right to sell said tract of land until February 1, 1926. The above mentioned price is to be net to me and I agree to give to the said Patrick as his compensation for procuring a purchaser all that is received for said tract of land over and above the foregoing mentioned price.”

On January 30, 1926—one day short of the termination of the agreement—Patrick, as Eisenhower’s agent or broker, entered into a contract by which he undertook to bind his principal to sell and convey the property to E. A. Brown at the price and upon the terms stipulated in the contract above set out at length. Later in the same day Eisenhower hunted up Patrick and told him the property was no longer on the market, whereupon Patrick told him he was “just a little late, I sold it this evening.” Eisenhower, however, repudiated the contract of sale made by Patrick, although' he paid the latter the $50 commission accruing by reason of the proposed sale. Subsequently Brown brought this suit to require Eisenhower to specifically perform the contract made in his name by Patrick for the sale of the property to Brown. The latter recovered judgment enforcing specific performance and Eisenhower prosecuted writ of error'. The point is made by plaintiff in error that the contract between Eisenhower and Patrick was not such as to authorize the latter to bind the former to a contract for the sale and conveyance of -the property to another ; that under the provisions of the contract Patrick’s authority was restricted to that of finding a “prospect” who was ready, able, and willing to purchase the land at the price and upon the terms stipulated by the landowner. The question presented is made difficult by apparent confusion among the authorities upon the subject.

The general rule more generally accept- | ed seems to be that unless the power thereto j is clearly given by the terms of his contract j of employment, a broker has no authority to i enter into á contrdct of sale of land binding upon his principal; that “the ordinary authority of a real estate broker employed to sell real estate is merely to find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by, or acceptable to, the principal, and in the absence of such special authorization he has no authority to enter into a contract of sale, or to sell and convey, binding upon the owner.” O' O.' J. 526, § 28. Mr. Mechem, in his work on Agency, states the general rule to be, that “authority to sell real estate must ordinarily be conferred in clear and direct language; for, although -there are cases in which it may arise by implication, it is not lightly to be inferred from express power to do other acts, or brought within the operation of more gen-éral terms.” Mechem Agcy. §§ 802, 797, 798.

Texas'cases upon the direct question are scarce, and the decisions in those cases are not very satisfactory, except in the statement of the general principle, that the authority of the agent to bind the owner in a contract of sale must clearly appear from the contract of employment. It is true, of course, that the prior relations between the owner and broker, the dealings between them, local custom in such matters, and any other circumstance tending to establish an intention, on the part of the owner to invest the broker with the power to make a contract of sale binding upon the owner may be resorted to in determining the authority of the broker. By this process the decisions are reached through the application of the general principle to the facts peculiar to each case, and are of but little value in new cases where the facts differ in a particular detail from those in the reported cases. In the case of Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323, for instance, in the contract under which the broker was employed, it was provided that the land owner would pay the broker a specified commission “for making the sale.” The Supreme Court, in an opinion by Judge Brown, seems to have held that the language, “for malting the sale"' (italicized by that court), carried with it, under the peculiar circumstances of the case, an implication that the broker had authority to make a contract of sale binding upon the owner. That court, however, declined, upon other grounds, to require the owner to specifically perform the contract. In another case, Watkins, etc., Co. v. Campbell, 100 Tex. 542, 101 S. W. 1078. in which .also Judge Brown wrote the opinion, the writing under which the broker obtained his authority consisted in part of a letter from the owner to the broker, in which it was stated that “If you could get the amount of ‘your cash payment’ increased to $600 we would be willing to accept the offer.” The court held that this language restricted the authority of the agent against any power to contract a sale in behalf of the owner, and the decision in that case was explained by Judge Brown in his opinion in the Colvin v. Blanchard Case. In the latter Judge Brown quoted the above excerpt from the letter of authorization, italicized the phrase “your cash payment,” and held that by these expressions the broker was deprived of authority to contract. These decisions, because of the peculiar facts upon which they are based, are of but little value in determining the present case. In them it is held, in effect however, that the authority of the broker to contract for his principal must be clearly expressed in the contract of employment, or plainly inferred from other facts and circumstances clearly showing such to be the intention of the parties.

The case of Donnan v. Adams, 30 Tex. Civ. App. 615, 71 S. W. 580, decided by this court, and in' which writ of error was denied, seems to be the most satisfactory and reasonable expression upon the question in this state. In that case the court approved the rule as expressed in Keim v. O’Reilly, 54 N. J. Eq. 418, 34 A. 1073, by the highest appellate court in New Jersey, in which that court quotes from an earlier New Jersey case, as follows:

“The mere employment' of an ordinary real estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker in that connection of the terms ‘for sale’ or ‘to sell’ and the like. * * ■ * It follows that he who seeks to establish the authority of an agent to bind his principal to the sale and conveyance of lands by proof of circumstances from which it may be inferred that such authority was granted will not be successful, if the circumstances proved merely justify the inference that the principal had placed his lands in the hands of the agent as an ordinary real estate, broker. To establish the grant of the greater authority, the circumstances must show more than the grant of the restricted authority.”

Commenting upon this statement of the rule, Judge Fly, in the Donnan v. Adams Case, said:

.“We think the correct doctrine has been promulgated in the New Jersey case, and that the mere fact of a land agent or broker having authority in writing to sell real estate is not sufficient to enlarge the authority granted by the strict terms of the writing, so as to confer the power of contracting in writing in the name of the principal for the sale of the land. In other words, the burden was on appellant to establish that the power to sell granted to Walsh carried with it the authority to bind his principal by a contract of sale in writing.”

Applying these rules to the case at bar we conclude that Patrick, the broker, exceeded his authority when he sought to bind his principal to sell and convey the land in question to defendant in error. In the contract by which he employed the broker the owner agreed, simply, “to sell and convey said tract of land to any purchaser procured by him” at the price and upon the terms stipulated in the contract of employment, and to pay the broker a stipulated compensation “for procuring a .purchaser” for the land. There is nothing in the record showing any extraneous fact or circumstance tending to enl%rge the authority of the broker beyond that expressed in the contract of employment, to. which alone, therefore, we may look for that authority. Certainly there is no express authority given the broker in that contract to bind the owner in a contract of sale; on the contrary, the power of sale and conveyance was by implication reserved to the owner.

It is true that in the contract of employment the principal “gave and granted” to the broker the exclusive right “to sell” said tract of land. But under the New Jersey rule, approved in the Donnan v. Adams Case by this court, the authority of the broker to bind his principal to a prospective purchaser “is not usually inferred from the use by the principal and broker in that connection of the. terms ,‘for sale’ or ‘tb sell’ and the like.” It was further said by Judge Fly in the Donnan Case that:

“A real estate broker or agent is one who negotiates the sales of real property. His business, generally speaking, is only to find a purchaser who is willing to buy the land upon the terms fixed by the owner. He has no authority to bind the principal by signing a contract of sale. A sale of real estate involves the adjustment of many matters besides the fixing of the price. The delivery of the possession "has to_ be settled, generally the title has to be examined, and the conveyance, with its covenants, is to be agreed upon and executed by the owner. All of these things require conferences, and time for completion. These are for the determination of the owner, and do not pertain to the duties, and are not within the authority, of a real estate agent. For these obvious reasons, and others which might be suggested, it is a wise provision of the law which withholds from such an agent, as we think it does, any implied authority to sign a contract of sale in behalf of his principal.”

We sustain plaintiff in error’s contention that no authority was shown in Patrick to bind the landowner to a contract to sell and convey the land to defendant in error, and the courts will not require specific performance of that contract. We have found no authorities in this state in conflict with this conclusion, and defendant in error cites no Texas authorities except Hazzard v. Morrison, 104 Tex. 589,143 S. W. 142, which does not appear to he in point.

The appeal also presents a question of the sufficiency of a Stowing that plaintiff in error was laboring under the disability of an adjudicated habitual drunkard at the time the transactions involved occurred. The rec-' ord as it relates to this question is unsatisfactory, and we deem it unnecessary, in fact out of place, to attempt to decide the question under the record presented, in view of a reversal upon the ground discussed at length herein.

Because of the apparent lack of authority of Patrick to bind plaintiff in error to the contract sought to be specifically enforced in the suit, plaintiff in error’s motion for rehearing must be granted, and the judgment of the court below will be reversed, and the cause remanded for another trial.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FUNDERBURK, J.

license: Public Domain

text:
    AMERICAN LAW BOOK CO. v. DYKES et al.
    (No. 412.)
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1928.
    Rehearing Denied April 6, 1928.
    1. Appeal and error <&wkey;>544(l) — In absence of statement of facts, assignments involving sufficiency of evidence are not considered.
    Assignments involving question of sufficiency of evidence to support trial court’s findings, present no question for determination on appeal in absence of statement of facts.
    2. Exemptions <&wkey;>ll8 — Books sold lawyer and delivered by him in discharge of office rent were exempt from landlord’s lien in foreclosure action under conditional sales contract.
    In action by law book company for foreclosure of lien on books sold under conditional sales contract, in which third party had possession under agreement that books were delivered in discharge of office rent due from attorney who purchased them, books, being part of lawyer’s library, were exempt from landlord’s lien and delivery to landlord merely represented discharge of pre-existing indebtedness.
    3. Judgment <§=s>250 — Failure of one holding law books for buyer’s office rent, to tender issue of innocent purchaser in conditional seller’s suit to foreclose prevented judgment on theory of innocent purchase.
    In action by seller of law books 'to foreclose unregistered conditional sales contract against buyer and another to whom books were delivered by buyer in payment for office rent, judgment for buyer’s landlord in so far as it was based on theory of his innocent purchase of the books was unwarranted where issue of innocent purchaser was not tendered by pleadings, books being exempt from landlord’s lien.

      4. Limitation of actions <&wkey;>45 — Buyer’s use of books in-another’s possession held not to preclude other’s plea of limitation as against conditional seller.
    In foreclosure action by conditional seller of law books against buyer and his landlord holding possession of books, on basis of which a plea of limitation was asserted, landlord’s possession and right to invoke statute was not defeated by fact that buyer had access to and use of books so held.
    Appeal from Erath County Court; E. T. Chandler, Special Judge.
    Suit by the American Law Book Company, against James B. Dykes and another. Judgment against named defendant by default, and in favor of defendant Cox, and plaintiff appeals.
    Affirmed.
    See, also, 278 S. W. ‘247.
    Y. W. Holmes, of Comanche, for appellant.
    R. L. Thompson, of Stephenville, for ap-pellees.
   FUNDERBURK, J.

On June 13, 1923, appellant filed this suit against James B. Dykes for recovery of the amount claimed to be due for a set of Corpus Juris and certain Annotations supplied with the same (law books); for the foreclosure of a lien thereon evidenced by an unregistered sales contract reserving title to the books; also for recovery of a set of Cyc, or in the alternative for the value thereof, which by the terms of the same contract had been tented to Dykes for a stipulated rental with provision for a return of the books to appellant. Appellee Cox was joined as defendant in the suit, the allegations as to him being that he was in possession of all the books under “some sort of a claim of right thereto to hold same for the payment of money,” etc. Judgment by default was given as against Dykes. The defendant Cox answered, among other things, that he had had possession of the books for more than two years before the filing of the suit, and that he acquired such possession from Dykes under an agreement that the books were delivered in payment and discharge of a certain sum due for office rents. Judgment was for Cox. No statement of facts appears in the record. The court filed findings of fact and conclusions of law.

The judgment of the trial court is based upon conclusions deduced from findings (1) that appellant’s cause of action is barred by the two years’ statute of limitations, and (2) that appellee is an innocent purchaser for value.

Appellant’s assignments, as we construe them, each and all involve a question of the sufficiency of the evidence to support the trial court’s findings. Such being the case, they present no question for our determination in the absence of a statement of facts.

In the absence of an assignment, it is perhaps our duty to notice that there were no pleadings tendering an issue of innocent purchaser. If the judgment of the court below rested on that alone, we would hesitate to let it stand. According to appellant’s pleadings, the books were delivered in payment of a past-due indebtedness. On a former appeal this court held that this would not support a claim of innocent purchaser. American Law Book Co. v. Dykes (Tex. Civ. App.) 278 S. W. 247.

It appears to have been the theory of the trial court that, although the books were exempt from a landlord’s lien, had the exemption been claimed by Dykes, such exemption was not available to appellant. Upon the former appeal this question too, was decided adversely to the view of the trial court. It was held on the authority, of York v. Carlisle, 19 Tex. Civ. App. 269, 46 S. W. 257, that the fact of exemption could be availed of by appellant unless and until there was a foreclosure of the landlord’s lien. We are not disposed now to reexamine the correctness of that holding. We think the trial court found such facts that, taken with the further finding (stated as a conclusion) that the exemption could only be claimed by Dykes, shows that the books were exempt from the landlord’s lien. Being exempt, no lien was discharged by delivery of the hooks to Cox. The hooks were simply delivered in discharge of a pre-existing indebtedness. Since the principie of innocent purchaser has no general application to personal property, it is necessary in order to make same applicable as against mortgages and other liens, to plead the facts. The pleadings do not tender this issue and we conclude that the judgment, in so far as it is grounded on the theory of innocent purchaser, is without support in the pleadings.

In so far as the judgment rests on a finding of the facts relative to limitations it does not appear to be successfully assailed. The only attack attempted is the finding that Dykes, without the knowledge or consent of Cox, continued to have access to, and to use the books for a time after possession was delivered to Cox. This finding, it is urged, shows there was no such possession by Cox as would support a plea of limitations. The court’s finding of continued possession in Cox cannot be varied by such finding of access to, and use of the books by Dykes. Mere access to and use of the books is not necessarily inconsistent with possession by Cox and in the absence of a statement of facts we are not at liberty to consider any question of the sufficiency of the evidence as to possession by Cox.

The judgment of the trial court is, therefore, affirmed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: O’QUINN, J.

text:
    WILLIAMS v. PETROLEUM CASUALTY CO.
    (No. 1670.)
    Court of Civil Appeals of Texas. Beaumont.
    March 29, 1928.
    Rehearing Denied April 4, 1928.
    Master and servant <&wkey;386 (I) — Average weekly wage of employee continuously in service of employer more than year is ½2 of actual earnings for preceding twelve months (Rev. St. 1925, art. 8309, § I).
    In determining compensation for death of employee, average weekly wage of deceased is to be computed by taking actual earnings of deceased for twelve months immediately preceding injury and dividing that sum by 52, with 60 per cent, of such amount constituting weekly compensation for award; Rev. St. 1925, art. 8309, § 1, having no application where deceased had worked for employer the whole year immediately preceding injury and actual earnings being known.
    Appeal from District Court, Liberty County ; Thos. B. Coe, Judge.
    Suit by the Petroleum Casualty Company against Ruby May Williams to set aside an award of compensation by the Industrial Accident Board. Judgment setting aside the award, and defendant appeals.
    Reversed and rendered.
    Hunt, Teagle & Moseley, of Houston, for appellant.
    Conrad J. Landram and K. W. Gilmore, both of Houston, for appellee.
   O’QUINN, J.

On January 12, 1927, Clifton E. Williams, husband of Ruby May Williams, was an employs of the Humble Oil & Refining Company, and on said date received an injury in the course of his employment, from which he died. The Humble Oil & Refining Company carried compensation insurance with appellee covering its employSs. Appellant made application before the Industrial Accident Board for compensation. Hearing was had before the board and an award in favor of claimant was made, awarding her compensation at the rate of $20 per week for 360 weeks. Appellee, being dissatisfied with the award, gave due notice that it would not abide same, and timely filed this suit in the district court of Liberty county (where the injury occurred) to set said award aside. The case was tried before the court without a jury, and judgment entered setting aside the award of the Industrial Accident Board and granting compensation to claimant at the rate of $15.58 per week for 360 weeks, beginning January 12, 1927. Appellant brings this appeal from that judgment.

The only question in the case is as to the method of computing the amount of the weekly compensation. Appellant contends that the average weekly wage of deceased should be computed by taking the actual earnings of deceased for the 12 months immediately preceding the injury and dividing that sum by 52, and that 60 per cent, of that amount will be the weekly compensation that should be awarded to appellant. Appellee contends that the average daily wage of deceased should be multiplied by 300 and the product divided by 52 to arrive at the average weekly wage as provided by article 8309, § 1, Revised Civil Statutes, 1925, and that 60 per cent, of that sum would be the weekly compensation. The Industrial Accident Board awarded compensation according to the method contended for by appellant. The district court found compensation by the method insisted on by ap-pellee.

The case was tried on an agreed statement of facts. They show that deceased was in the employ of the Humble Oil & Refining Company and had so been for more than 12 months prior to the date of his injury, and had worked' “practically the whole of the year preceding January 12, 1927,” the date of his injury and death; that the total wages earned by him during the preceding 12 months, including Sundays and overtime, amounted to $1,791.64; that his wages and the character of his employment varied from time to time; that the daily wage of a helper (the work deceased was doing at the time of his injury) working substantially the whole of the year immediately preceding the date of the injury and death of deceased at the same and neighboring places, was $4.50 per day; that during the whole of the year immediately preceding the date of the injury and death of deceased he had worked for the Humble Oil & Refining Company in different capacities and at different wages, to wit: As helper, derriekman, gang pusher, and pumper, part of the time working by the day and part of the time working by the month, that is he was paid part of the time by the day and part of the time by the month, but, as before stated, the agreed statement of facts puts his total actual annual earnings at $1,791.64, and his average daily wages as helper, the work he was doing at the time of his injury, at $4.50 per day.

We think that under the authority of Howard v. Texas Employers’ Insurance Association (Tex. Com. App.) 292 S. W. 529, and Fidelity Union Casualty Co. v. Lieb (Tex. Civ. App.) 293 S. W. 246, the judgment must be reversed and judgment here rendered for appellant in line with her contention. This court in the Howard Case, supra (282 S. W. 266), held with the contention of appellee, but the Supreme Court granted a writ of error and reversed our holding as to the statutory rule invoked by appellee. True there is a difference in the facts of that case and the instant case, in that in the Howard Case the deceased had worked continuously for his employer for more than a year at the same character of work at a daily wage of $4.60, while in the instant case the deceased, while working for his employer for a full year before his injury, had worked at different kinds of work, and at different wages as the work varied. But the Supreme Court ’held that as Howard ‘had worked the whole of the year immediately preceding the injury and at a certain daily wage, his actual annual earnings were known, and the rules prescribed by article 8309, §§ 1 • and 2, had no application, and were not intended to control under the facts. In the instant • case the deceased had worked for his employer the whole of the year immediately preceding his injury, and his actual annual earnings are certainly known, to wit $1,791.64. So that, under the holding of the Supreme Court, supra, the average weekly wage must be found by dividing the áetual annual wage by 52, which gives $34.45. Sixty per cent, of this weekly average wage would be $20.67, thus allowing the beneficiary of deceased, appellant, the maximum compensation allowed by law, $20, as awarded by the board.

The Lieb Case, supra, is more in point as to the facts. In that case, as in this, the injured employé had worked for the whole of the year immediately preceding the injury and at various kinds of work at different daily wages. In that case, as in this, the average daily wage was found. In that case, as in this, the total earnings for the whole of the year immediately preceding the injury was certainly known. In that case the court divided the actual annual earnings by 52 to ascertain the average weekly wage, and took 60 per cent, of that as,the weekly compensation, and rendered judgment accordingly. The case was appealed to the Texarkana Court of Civil Appeals, where the judgment was affirmed. Application for writ of error was made, and dismissed for want of jurisdiction. We think this action of the Supreme Court, coming after their holding in the Howard Case, indicates the fixed rule that where the actual annual earnings of the injured employs for the whole of the year immediately preceding the receiving of his injuries is known, resort to the rule of the statute may not be had in ascertaining the average weekly earnings, but that same must be found by dividing the actual annual earnings by 52. The Supreme Court of Michigan, Robbins v. Original Gas Engine Company, 191 Mich. 122, 157 N. W. 437, and the Court of Appeals of New York, Littler v. George A. Fuller Co., 223 N. Y. 369, 119 N. E. 554, announced the same holding under similar facts, in construing statutes very similar to our own.

It follows that the judgment must be reversed, and. that we here. render the judgment that should have been rendered in the court below, that appellant recover compensation at the rate of $20 per week for 360 weeks, beginning January 12, 1927.

Reversed and rendered.
      @=>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: JACKSON, J.

text:
    WESTERN UNION TELEGRAPH CO. v. NORDYKE, County Judge, et al.

    (No. 2902.)
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 9, 1927.
    Rehearing Denied Dec. 1, 1927. Petition Writ of Error Dismissed for Want of Jurisdiction. April 11, 1928.
    Petition for
    1. Telegraphs and telephones <&wkey;37(l) — Telegraph company must use ordinary care to transmit and deliver messages.
    Telegraph company is required to use ordinary care to transmit and deliver messages received by it.
    2. Telegraphs and telephones &wkey;>54( I)_ — Telegraph company may not contract against its own negligence relative to transmission and delivery of intrastate messages.
    Telegraph company must exercise ordinary care to transmit and- deliver intrastate messages, and may not contract against its own negligence in performance of such duty.
    3. Telegraphs and telephones <&wkey;6l — Agreement of sender of intrastate message that telegraph company might mail message to addressee, for want of specific address, held not to relieve telegraph company from liability for negligent failure to deliver telegram.
    Mere fact that sender of intrastate telegraphic message agreed with telegraph company that it could mail the message to the addressee, on account of sender’s inability to furnish specific address other than post office box, held not to relieve telegraph company from liability for negligence in failing to make any effort to find the addressee or deliver message to her, where addressee lived in city to which telegram was sent.
    4. Mandamus <&wkey;l72 — Order granting’ plaintiff new trial after recovery of $100 verdict was not disturbed in mandamus proceedings where testimony was not disclosed (Rev. St. 1925, art. 2235).
    In action against telegraph company for negligent failure to deliver intrastate telegram, in which jury returned verdict for plaintiff for $100, court, where testimony was not disclosed, was not justified in holding in mandamus proceedings that trial court abused its discretion in granting plaintiff new trial, in view of Rev. St. 1925, art. 2235, permitting new trial where damages are too small or too large.
    Appeal from District Court, Lubbock County ; Clark M. Mullican, Judge. •
    Petition by the Western Union Telegraph Company for writ of mandamus to be directed to Charles Nordyke, County Judge, and others. From a judgment refusing the writ, relator appeals.
    Affirmed.
    Wilson & Randal and J. I. Kilpatrick, all of Lubbock, and Wm. H, Flippen and John ■ W. Miller, both of Dallas, for appellant.
    Bean & Klett, of Lubbock, for appellees.

      writ of error dismissed.

   JACKSON, J.

The relator, the Western Union Telegraph Company on May 23, 1927, filed a petition for mandamus in the district court of Lubbock, county, Tex., complaining of the respondents, Charles Nordyke, county judge of said county and Mr. and Mrs. J. A. Freeland, husband and wife.

The record discloses that on January 3, 1927, Mrs. J. A. Freeland, joined by her husband, J. A. Freeland, instituted a suit in the county court of Lubbock county, Tex., of which county Charles Nordyke is county judge, to recover $1,000 damages for the alleged negligence of the Western Union Telegraph Company, for its failure to transmit and deliver to Mrs. J. A. Freeland the following telegram:

“Dallas, Texas, 10:30 a. m.
“October 31, 1926.
“Mrs. J. A. Freeland, Box 102, Lubbock, Texas.
“W. L. Waggoner died this morning at nine o’clock. Estelle Waggoner.”

The petition filed in the county court alleges that the message was received by the tete-graph company at Dallas, Tex., and the usual charges paid for its transmission to and delivery to Mrs. J. A. Freeland at Lubbock, Tex.; that she and her husband resided at the corner of Avenue S and Twenty-Seventh street in the town of Lubbock, and that they were well and widely known in said town, and could have been found and the message delivered by the exercise of ordinary care. The petition sufficiently sets up a cause of action against the telegraph company for its failure to exercise ordinary care in the transmission and delivery of the message.

' The Western Union Telegraph Company answered by general demurrer and general denial and specially pleaded that on Sunday, October 31, 1926, at the time the message was delivered to it at Dallas, Tex.,' a request was made for a better address than the box number, and the sender was advised that, unless a better address was furnished, it would have to mail the message in the post office, and requested that it be furnished the telephone number or street number of the addressee in the message; that the sender failed' to furnish any better address and stated to the company that the post office box was the only address she knew, and that the message would have to be mailed; that the telegraph company only contracted to transmit said message to Lubbock, Tex., and mail the same to the addressee; that the message was .promptly transmitted and received at its office in Lubbock, Tex., at 10:32 a. m. October 31st, and promptly mailed in the post office in an envelope plainly addressed to Mrs. J. A. Freeland, box 102, and duly stamped, and the company thereby complied with its contract and the delay in’ receiving the message was not due to any fault or negligence of the telegraph company, but to tbe failure of Mrs. J. A. Freeland to get ber mail, or of tbe post office employees to place tbe telegram in plaintiffs’ box, and to tbe negligence of tbe sender Estelle Waggoner in failing to furnish it with a better address, and alleged tbe negligence of tbe addressee and sender of tbe message as a bar to any recovery.

On tbe Stb day of April, 1927, tbe case was tried before a jury in tbe county court of Lubbock county, and in response to' special issues submitted, tbe jury found, in effect, that tbe relator and tbe sender of tbe message at tbe time it was received for transmission, agreed that tbe message should be mailed at Lubbock, Tex., if tbe address of Mrs. J. A. Freeland was given as post office box 102, Lubbock, Tex.; that tbe relator, upon tbe receipt of tbe message at Lubbock, Tex., promptly mailed tbe message in tbe post office in a properly stamped envelope, addressed to Mrs. J. A. Freeland, box 102; that the relator did not use ordinary care, to deliver the death message to Mrs. Freeland, and that tbe damage sustained was tbe sum of $100.

That on tbe 9th day of April, 1927, tbe relator filed its motion for judgment on the verdict of tbe jury, and on tbe same date, Mr. and Mrs. Freeland filed their motion requesting that the verdict of the jury be set aside and that they be granted a new trial; that on the 12th of May, 1927, Charles Nordyke,-tbe county judge of said county, refused tbe motion of relator for judgment, and granted a new trial.

On these facts, the relator, tbe telegraph company, bases its right to tbe issuance of a writ of mandamus by tbe district court of Lubbock county, Tex., to compel the county judge of said county to enter judgment on the verdict of tbe jury that tbe Freelands take nothing against it. In tbe mandamus proceedings tbe respondents answered by general demurrer and general denial, and on trial before tbe district court the writ of mandamus was refused, from which action of the district court, tbe relator prosecutes this appeal.

The relator assigns as error tbe action of the district court in refusing to issue a writ of mandamus in its behalf, compelling tbe county judge of Lubbock county, Tex., to enter a judgment in its favor on the verdict of tbe jury in county court, because tbe record shows that tbe county judge bad and exercised no discretion in setting aside tbe verdict of the jury in granting a new trial, but acted arbitrarily and without authority of law. Tbe contention of tbe relator is, in effect, that as it requested from tbe sender of tbe message a more definite address of tbe addressee than tbe post office box number, and not having been furnished with such address it contracted to transmit the message to Lubbock and there mail it to the addressee, properly stamped and addressed, and the jury having found that it complied with such contract, no further duty was imposed upon it, and tbe district court should have issued a writ of mandamus, directing the county judge to enter a judgment in its favor.

A telegraph company is required to use ordinary care to transmit and deliver messages received by it. Western Union Tel. Co. v. True, 101 Tex. 236,106 S. W. 315; Western Union Tel. Co. v. Holcomb (Tex. Com. App.) 210 S. W. 509.

This was an intrastate message and the duty of exercising ordinary care to transmit and deliver tbe message was imposed upon the relator by law, and against tbe performance of this duty it could not contract, because a telegraph company is not permitted to contract against its own negligence. Western Union Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58; Western Union Tel. Co. v. Piper (Tex. Civ. App.) 191 S. W. 817, and authorities cited. Tbe relator made no effort to find tbe addressee and deliver tbe message, but contented itself with mailing tbe message on its receipt at Lubbock, in tbe post office, properly stamped and properly addressed to tbe addressee. There is no statement of facts showing what testimony was introduced at tbe trial in county court, but tbe jury found that the relator was guilty of negligence, which finding is not attacked. There is nothing in the record to indicate' that tbe sender of tbe message was guilty of contributory negligence in failing to furnish a more definite address at which tbe addressee could be found. In fact, tbe relator alleges that tbe sender informed relator’s clerk at Dallas, at the time tbe message was received for transmission that the post office box was tbe only address she knew.

In our opinion, the telegraph company was not entitled to a judgment by showing that the sender agreed that it could mail the message to the addressee at Lubbock, because tbe sender could not furnish any more specific address, in view of the finding of the jury that the telegraph company was guilty of negligence in failing to deliver the message, and in view of the fact that the addressee lived in the city of Lubbock, and no effort was made by tbe company, other than to mail the message, to find the addressee or deliver tbe telegram to ber. Klopf v. Western Union Tel. Co., 100 Tex. 540, 101 S. W. 1072, 10 L. R. A. (N. S.) 408, 123 Am. St. Rep. 831; Western Union Tel. Co. v. Mitchell, 91 Tex. 454, 44 S. W. 274, 40 L. R. A. 209, 66 Am. St. Rep. 906; Western Union Tel. Co. v. Carver (Tex. Civ. App.) 222 S. W. 333; Western Union Tel. Co. v. Cook, 45 Tex. Civ. App. 87, 99 S. W. 1131; Western Union Tel. Co. v. Hendricks, 26 Tex. Civ. App. 366, 63 S. W. 341; Western Union Tel. Co. v. Bowen (Tex. Civ. App.) 76 S. W. 613; Western Union.Tel. Co. v. Hice et al. (Tex. Com. App.) 288 S. W. 175.

Article 2235, Revised Civil Statutes 1925, provides:

“New trials may be granted when the damages are manifestly too small or too large.”

The verdict of the jury in the case in county court was for the sum of $100. As heretofore stated, we are not advised what the testimony disclosed on the trial of the case in county court, and we are not warranted, under the facts and circumstances revealed by the record, in holding that the county judge abused the discretion given to him in the above statute, in setting aside the verdict of the jury.

Finding no error in the record, the judgment is affirmed.
      ®=sFor otter eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    FIRST NAT. BANK OF ROCKPORT v. BROWN et al.
    (No. 7951.)
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    1. Tenancy in common <&wkey;>44 — Deed to undivided interest in land carries interest in ail the property.
    A deed to an undivided interest in a parcel of land carries an interest in the whole land, regardless of its size, and should not be treated as conveying a particular parcel of it.
    2. Appeal and error <&wkey;883 — Grantor who, when sued on his warranty, agreed to statement of facts placing land in controversy on undivided interest conveyed, could hot complain on appeal.
    Grantor of undivided half interest in land,, who accepted statement of facts placing land in controversy on the one-half interest of his grantee, and who also accepted trial court’s findings, could not complain on appeal, in suit to quiet title and to recover on warranty, that land in controversy should have been distributed over entire tract.
    3. Evidence <§^383(6) — In suit involving grantor's liability on warranty, excerpts from minutes of grantor’s directors appended to deed, authorizing sale at specified sum were sufficient proof of value of land.
    In suit to quiet title in which defendant joined his grantor to recover on warranty, excerpt from minutes of grantor’s directors appended to deed, in which it was recited that sale had been authorized at $5 an acre, was sufficient proof that válue of land at time of sale to grantee was that specified.
    Appeal from District Court, Aransas County; T. M. Cox, Judge.
    Action by George Wildy Gibbs and others, against George W. Brown and others, in which the First National Bank of Rockport was made a party. From a judgment for 1 original plaintiffs and for defendant first named, the First National Bank of Rockport appeals.
    Affirmed.
    W. H. Baldwin, of Rockport, and Beasley & Beasley, of Beeville, for appellant.
    E. T. Simmang, Jr., of Corpus Christi, and Drought & Stevens, of San Antonio, for appellees.
   FLY, C. J.

This is an action of trespass, to try title to 79½ acres of land out of the T. T. Williamson survey in. Aransas county, instituted by George Wilby Gibbs, Sallie Gibbs Milliken; and Dorsey Gibbs Morris, joined by her husband, I. J. Morris, against George W. Brown, the First National Bank of Snyder and the First State Bank & Trust Company of Snyder. At the instance of the defendants named, the First National Bank of Rockport, was made a party and recovery sought against it, on the ground of the land having been sold by the First National Bank of Rockport to Brown, and a warranty title thereto having been executed to said Brown. The court rendered judgment for the land in favor of the original plaintiffs, and in favor of George W. Brown, for the sum of $347.50.

George Wildy Gibbs, and those associated with him in bringing the action showed title to the 79½ acres of land sued for, and properly recovered the same. On February 20, 1907, the First National Bank of Rockport conveyed by warranty deed to George W. Brown, in consideration of $930.75, a one-half undivided interest in and to, a certain tract of 372.3 acres of land, more or less, out of the T. T. Williamson survey in Aransas county. On February 6,1908, the land was partitioned by deeds, the eastern one-half of the Williamson tract being conveyed and set apart to George W* Brown and the western one-half to John A. McCollough. The statement of facts says: “The 69% acres sued for was a part of the tract sold by the First National Bank of Rockport to George W. Brown.” The 69% acres sued for fell to Brown in the allotment of the land. The deed given by the First National Bank of Rockport to Brown, was a general warranty deed. The half of the Williamson tract, which was described by metes and bounds, was not indicated in the deed. It was an undivided half of the whole tract.

There is nothing in the statement of facts, which indicates how it was ascertained that a certain parcel of land was a portion of the undivided one-half of a larger tract. A deed to an undivided interest in a parcel of land carries an interest in the whole land, whether it'be large or small. And yet a statement of facts agreed to by all the parties, places the whole of the land in controversy on the undivided one-half interest sold to Brown. Appellant, having accepted the statement of facts as well as the findings of fact of the trial court, is in no position to complain.

Appended to the deed made by appellant is an excerpt from the minutes of the bank directors, in which it is recited that the sale to Brown, had been authorized for the sum of $5 an acre and that may be taken as sufficient proof that the value of the land at time of the sale was $5 an acre. It follows that appellant has no cause of complaint on this score. The way was open to it, to show a less value on the land when it was sold, but advantage was not taken of the opportunity. No attack is made upon the measure of damages used by the court.

The judgment is affirmed.
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author: HICKMAN, C. J.

text:
    ALEXANDER v. GOOD MARBLE & TILE CO. et al.
    (No. 408.)
    Court of Civil Appeals of Texas. Eastland.
    March 16, 1928.
    Rehearing Denied April 13, 1928.
    1. Contracts <&wkey;322(I) — -For contractor to recover where contract provided for payments only on architect’s certificates, he must show either issuance of certificate, withholding thereof fraudulently, arbitrary withholding, or waiver by owner.
    Where contractor sues owner for money due on contract providing for payments only on presentation of certificates furnished by architect, it is incumbent on contractor, in order to obtain payment, either to show that the architect has issued such certificates showing contractor’s right to payment, -that certificates have been withheld by architect fraudulently, that there was a withholding so arbitrary as to .amount to bad faith, or that owner has waived right to insist on same.
    2. Trial <&wkey;35l (2)-rOne party owes no duty to request submission of issues essential to other (Rev. St. 1925, art. 2190).
    Under Rev. St. 1925, art. 2190, a plaintiff owes no duty to request the submission of issues essential to defendant’s defense, and defendant likewise owes no duty to request submission of issues essential to plaintiff’s recovery.
    3. Trial <&wkey;35l(2) — Issue necessary to make out cause of action or defense is waived, where party fails to request submission and court does not submit it (Rev. St. 1925, art. 2190).
    Where party to suit fails to request the submission of an issue necessary to make out a cause of action or defense, as the case may be, and such issue is not submitted to the jury by the court, it is, under Rev. St. 1925, art. 2190, waived.
    4. Contracts &wkey;>290 — Owner may waive compliance with contract provision requiring architect’s certificate as prerequisite to paying contractor.
    Since a provision of a contract requiring presentation of a' certificate of an architect as a prerequisite to payment being made by owner to contractor is for benefit of owner, such owner may waive compliance therewith.
    5. Contracts <&wkey;290 — Building contract held not to waive owner’s right to insist on architect’s certificate preliminary to making payments.
    . Building contract held not, as matter of law, to waive owner’s right to insist on architect’s certificate, preliminary to making payments to contractor.
    6. Evidence &wkey;>!29(6) — Marble slab and photographs showing such marble used in other buildings held inadmissible, in contractor’s suit for payment, to show proper material was ' used.
    In contractor’s action to recover from owner payment under building contract, wherein defense was use of improper marble, a marble slab and two photographs, latter showing that type of marble for which contract called was used in corridors of a 22-story office building, and another, held inadmissible for purpose of showing proper material was used in building in question, as'it would tend to cause jury to conclude marble acceptable for such buildings as were pictured in photographs should be acceptable to defendant.
    7. Contracts <&wkey;>300(l) — Contract held not to excuse delay caused by weather conditions.
    In contractor’s action to recover from owner under building contract, submitting to jury issue of allowance for delay in completion of part of building on account of weather conditions held improper, where contract provided for completion of such part at a definite time, making no provision for delay on account of weather conditions.
    8. Contracts <&wkey;>300(3) — In building contract, owner is not entitled to recover damages for delay brought about by his own wrong.
    In building contract, owner is not entitled to recover damages for delay brought about by his own wrong, regardless of provisions of contract.
    Appeal from District Court, Taylor County; M. g. Long, Judge.
    guit by the Good Marble & Tile Company against J. M. Alexander and Walsh & Bur-ney, in which Walsh & Burney file a cross-action against defendant Alexander. From the judgment, defendant Alexander appeals.
    Reversed and remanded.
    Davidson & Hickman and gtinson, Hair & Brooks, all of Abilene, for appellant.
    Thompson & Barwise and Hugh B. gmith, aE of Fort Worth, for appellees.
   HICKMAN, C. J.

This litigation is based upon a contract for the construction of the seven-story Alexander bank and office building on North First and Bine streets in the city of Abilene. For convenience the parties will be designated here as they were in the contract, the appellant J. M. Alexander being the owner, the appellees Walsh & Bur-ney being the contractor, and the appellee Good Marble & Tile Company being the sub-, contractor. Suit was instituted by the subcontractor against the contractor for approximately $7,500, alleged to be due for the installation of the marble and terrazzo work in the building, and to establish and foreclose, as against the owner, a mechanic’s and materialmen’s lien on said building and the lots on which it is situated. The contractor filed a cross-action over against the owner for approximately $7,900, as the alleged balance unpaid on the original contract between him and the owner for the construction of the building. The owner answered denying any indebtedness to the contractor, and alleging that' the building had not been completed, and that it would cost more to complete and repair same in accordance with the contract than the balance unpaid on the contract price. He also denied that he had accepted the building, and particularly pleaded that a large part of the marble which was installed by the subcontractor had been rejected by the architect. He prayed for judgment against the contractor for the amount necessary to carry out the contract, after crediting the same with the balance of the unpaid contract price. He also prayed for judgment for approximately $2,400, which he alleged to be due him under the terms of the contract for delay in completing the banking room and a certain storeroom on the first floor. The case was submitted to the jury upon special issues, upon the answers to which judgment was rendered in favor of the subcontractor against the contractor for approximately $8,000, with a foreclosure against the building in the amount of the judgment in favor of the contractor against the owner, which was approximately $7,800. Judgment was also rendered in favor of the subcontractor against the owner for the same amount as the judgment against the owner in favor of the contractor, but it was decreed that no execution should issue in favor of the subcontractor against the owner personally.

Able briefs have been filed presenting many assignments and propositions; but, since we have concluded that it is necessary to remand the case for another trial, we believe our views on the controlling questions of law may be stated without the necessity of discussing separately the various assignments and propositions.

The original contract between the owner and the contractor required>the latter to furnish all labor and material for the erection and completion of the building according to the plans, specifications, and drawings made by David S. Castle, architect, in a good, substantial, and workmanlike manner, to the satisfaction and under the direction of said architect and his superintendents. In consideration that the contractor should completely and faithfully execute the work, furnish the material and labor therefor, and fully carry out the contract according to its true spirit and by and at the times mentioned to the full and complete satisfaction of David S. Castle and his superintendents, the owner obligated himself to pay the contractor $219,787 on certificates of the architect or his superintendent from time to time as the work progressed, to wit, 85 per cent, of the estimated value of the same. The contract contained the further provision, in substance, that in relation to the contract, the work to be or that has been performed under it, or in relation to the plans; drawings, and specifications, which were made a part thereof, the decision of David g. Castle, the architect, should be final and binding on all parties thereto.

Prom the foregoing description of the terms of the contract it is apparent that the parties thereto vested the architect with authority and power to make decisions on all issues which might arise in the course of the construction of the building with reference to labor, material payments, etc.

Recovery was had upon this contract. The law is well settled that, when a contractor sues the owner for money due upon a contract of this character, it is incumbent upon him, in order to recover against the owner, to plead and prove that the architect has issued to him a certificate showing his right to the payment, or that such final certificate has been withheld by the architect fraudulently, or that his withholding thereof was so arbitrary as to amount to bad faith, or that the owner has waived his right to insist upon same. Childress v. gmith et a., 90 Tex. 610, 38 g. W. 518, 40 S. W. 389; Kansas City, E. P. & M. Ry. Co. v. Perkins, 88 Tex. 66, 29 S. W. 1048; Jones et al. v. Gilchrist, 88 Tex. 88, 30 S. W. 442; Boettler v. Tendick, 73 Tex. 488, 11 S. W. 497, 5 L. R. A. 270; Kilgore v. Baptist Society,,89 Tex. 465, 35 S. W. 145; Kettler Brass Mfg. Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900; Llano Granite & Marble Co. v. Hollinger et al. (Tex. Civ. App.) 148 S. W. 337; Harrell v. City of Lufkin (Tex. Com. App.) 280 S. W. 174.

No issue was submitted to the jury calling for a determination of whether the withholding of the certificate by the architect was fraudulent or in bad faith, or whether the owner waived the same. A finding against appellant on one of these issues is essential to support a judgment against him on the contract, and in the absence of such finding the judgment must be reversed.

Appellees insist that under article 2190, R. S. 1925, it becomes our duty to presume, in support of the judgment of the trial court, that the issue of fraud was found by the trial judge in such manner as to support the judgment. This same question has been presented to this court a great many .times, and we have uniformly held that a plaintiff owes no duty to request the submission of issues essential to the defendant’s defense, and a defendant likewise owes no duty to request the submission of issues essential to plaintiff’s recovery.

Under such a situation it is the well-settled rule that, where a party to a suit fails to request the submission of an issue necessary to make out his cause of action or defense, as the case may be, and such issue is not by the court submitted to the jury, it is waived. Authorities almost without number could be cited in support of this holding, but we shall refer to but a few of the leading ones. Conflicts in the construction of article 2190 are to be found in the opinions of some Courts of Civil Appeals, rendered prior to the time that the Supreme Court construed this article. In the case of Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902, our Supreme Court, through Justice Greenwood, wrote on this .question, construing the article above. The Supreme Court again wrote on the same question in the recent case of Ormsby v. Ratcliffe (Tex. Sup.) 1 S. W. (2d) 1084. That case was pending before that court on applidation for writ of error from this court, and Justice Pierson took occasion again to write upon the same subject, on account of the great confusion which seemed to exist in the minds of able counsel regarding the same. That opinion clearly construes the statute. Again, in the case of Bulin et al. v. Smith, 1 S. W. (2d) 591, the Commission of Appeals, speaking through Judge Speer, reaffirms the rule. The conclusion is that the appellees, having failed to request the submission of an issue necessary to their cause of action, are deemed to have waived same, and that, since a determination of that issue in their- favor was essential to their judgment, the same must be reversed.

What has been said with reference to the issue of fraud on the part of the architect applies -equally to the issue of a waiver by the owner of his right to insist upon a certificate by the architect, in so far as such waiver was sought to be shown by parol testimony. But appellees urge here that the evidence shows such waiver, as a matter of law, based upon the construction of a written contract, the duty to construe which rested upon the court and not upon the jury. An understanding of this contention requires that we here copy the contract relied upon as a waiver. It is as follows:

“State of Texas, County of Taylor:

“The following- contract is made between Walsh & Burney, hereinafter called contractor, and Dr. J. M. Alexander, hereinafter called owner:
“The contractor has practically finished what is known as the Alexander building on Pine and North First streets in the city of Abilene, Taylor county, Texas, but there are still some matters unadjusted between the parties. Both parties desire that the building be turned over to the owner on or before the 1st day of September, 1925. The contractor upon the signing of this agreement will turn over the building to the said owner, to the extent that the said owner may place Ms tenants in said building. The contractor claims there is due them on said building, exclusive of the separate contract for finishing the sixth floor, approximately the sum of $37,939.58. The owner claims some offsets against the above sum of money, and upon the turning over of said building the said owner will pay to the contractor the above amount, less the sum of $7,500, which amount will be retained by the owner pending final adjustment on the contract. The contractor will continue to finish the marble work and such other items about the building that need finishing or retouching to comply with the terms of the contract, and will put forth every effort to finish the same to the end that same may be finished just as quickly as it can be done. The contractor will use every effort to finish the unfinished items by the 1st of September, 1925, to the end that the building may be as suitable for occupancy for tenants on the 1st of September as possible, and in the event any part is not finished the contractor will finish the same as quickly as it can be done and will interfere with the tenants as little as possible.
“The owner will have the arhitect to at once check over all matters and render a decision as to what allowances shall be made to the end that each party may'know as early as practicable what part, if any, of the money retained shall be used as an offset against the contractor.
“In the determination of the differences between the parties the original contract in all respects shall be taken and considered to determine the amount, if any, offset, and this contract in no wise supersedes or varies the original contract.
“The amount claimed by the contractor to be due is exclusive of the additional contract for the finishing of the sixth floor, and the contract for. the finishing of the sixth floor is in no wise affected by this contract and the amount due for the finishing of the sixth floor under the additional- contract is not taken into consideration in this contract.
"“The architect, the owner, and the contractor will as soon as possible, and not later than August 31, 1925, determine the amount which the contractor claims, and shall write in this contract the figure claimed by the contractor.
“Witness our hands this 28th day of August, A. D. 1925.
“Walsh & Burney,
By W. D. Ferguson, Contractor. ■
“J. M. Alexander, Owner.”

It is unquestionably the rule, as contended by appellees, that, since a provision of a contract requiring the certificate of an architect is for the benefit of the owner, such owner may waive a compliance therewith by the contractor. 9 O. J. pp. 760, 761.

Appellees insist that the written contract above copied impliedly waives the right of the owner to insist upon the certificate by the architect. We cannot so construe this contract.. To our minds it expressly disclaims any such' intention, and, having so expressly disclaimed it, same cannot be in-grafted tbereon by implication.

The question of the correct measure of damages on the owner’s cross-action may arise upon another trial, as it did upon this trial. We think the question of law involved with reference to the measure of damages is decided in the cases of Atkinson v. Jackson Bros. (Tex. Com. App.) 270 S. W. 848, 38 A. L. R. 1377, and McBumett v. Smith & McCallin (Tex. Civ. App.) 286 S. W. 699, and there is no necessity for a repetition by us of the rules therein announced.

The marble which the subcontractor undertook to install in the building was described in the specifications as “gray Tennessee marble.” For the purpose, as contended by appellees, of enlightening tbe jury on the question of what was meant by “gray Tennessee marble,” there was introduced in evidence, over the objection of appellant, a certain marble slab and two photographs. One of these photographs was made in the corridors of the W. T. Waggoner 22-story office building in Fort Worth, and the other was made in the Medical Arts building at Fort Worth or Dallas. We think this was improper evidence, and should have been excluded. Regardless of the purpose for which this evidence was offered, the evident effect of the introduction of these photographs was to cause or tend to cause the jury to conclude that if this marble was accepted in the Waggoner building and the Medical Arts building, it should be acceptable to the owner of the Alexander building. Issues of this character prolong litigation, ignore the terms of the contract, and should not be injected in the trial of a cause. Goldsmith v. Ohio Trust Co. (Tex. Civ. App.) 283 S. W. 299; A. J. Anderson Electric Co. v. Cleburne Water & Ice Co. (Tex. Civ. App.) 44 S. W. 929.

On the issue of damages claimed by the owner for delay in the completion of the banking room and storeroom No. 1, it is our opinion that, under the terms of the contract, no provision was made for allowance of time to the contractor on account of weather conditions, and such' issue should not have been submitted to the jury. The contract provides that the building as a whole was to have been completed on or before June 8, 1925, time to be extended only in case of general strike, fire, or unusual action of the elements. That is the general provision governing the building as a whole. The specific provision of the contract relating to the banking room and storeroom No. 1 contains no allowance for delay, but is an absolute obligation to complete and turn over same to tenants within six months from June 15, 1924. With respect to these two' particular rooms, the contractor should not be allowed any time for delay on account of weather conditions. It will be proper to submit to the jury the issue, if supported by evidence, as to whether such delay was due to the owner’s fault, because it is elementary that the owner is not entitled to recover damages 'brought about by his own wrong, regardless of whether the contract expressly so provided.

We believe the above indicates our views on the main questions presented. For the reasons indicated, the judgment of the trial court will be reversed and the cause remanded for another trial.
      <£»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: HALL, C. J.

text:
    TURNER v. PARKER.
    (No. 3007.)
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    1. Bills and notes <&wkey;94(2) — Note executed in settlement of amount due by reason of maker’s failure to drill oil well held based on sufficient consideration (Rev. St. 1925, art. 5933, § 25).
    Note executed in settlement of amount due by reason of maker’s failure to drill oil well in accordance with agreement to that effect held based on sufficient consideration in accordance with Rev. St. 1925, art. 5933, § 25, expressly providing that antecedent of pre-existing debt constitutes value.
    2. Bills and notes <⅜=>94( I)— Pre-existing debt is sufficient consideration for note.
    A pre-existing debt is sufficient consideration for note executed in lieu of debt.
    3. Bills and notes <S=n539 — Finding that note was not accommodation paper constituted in effect finding that note was supported by consideration.
    Finding of jury that note on which recovery was sought was not accommodation paper, held to constitute, in effect, a finding that note was supported by sufficient consideration.
    4. Action <&wkey;48(3) — Joining suit on note with suit for damages on contract in alternative after defendant denied consideration for note and pleaded contract held not misjoinder.
    Joinder of suit on note with suit for damages on contract by virtue of supplemental petition setting up .version of contract in the alternative, after defendant had denied consider¿tion for note and pleaded contract, held not to constitute misjoinder of causes of action, it appearing that note grew out of contract, and was executed in lie.u of and as evidence of the amount of damages due by reason of breach.
    5. Pleading <&wkey;20 — Plaintiff may plead and pray in alternative when in doubt as to right of action first set up.
    Plaintiff may, by virtue of liberal rules of pleading and practice, plead and pray in the alternative, when he is in doubt as to his right to recover on cause of action first set up, par-tieularly so by supplemental petition after defendant’s answer raises doubt as to right of recovery on original cause of action.
    6. Appeal and error &wkey;>l052(7) — Testimony on alternative cause of action being immaterial by reason of jury’s finding, if erroneously admitted, was harmless.
    Where jury, in suit on note with alternative prayer for recovery on contract if not entitled to recover on note, found that note was not accommodation paper as claimed by defendant, plaintiff’s testimony to sustain alternative plea for damages became immaterial, and, if erroneously admitted, was harmless.
    Appeal from District Court, Wichita County; W. W. Cook, Judge.
    Action by James E. Parker, against J. H. Turner. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. S. Dickey and Taylor, Muse & Taylor, all of Wichita Falls, for appellant.
    Bullington, Boone, Humphrey & King, of 'Wichita Falls, for appellee.
   HALL, C. J.

The appellee, Parker, sued the appellant, Turner, upon a promissory note made by the latter and delivered to the former in the sum of $4,600. The original petition prays for judgment for the amount of the principal, interest, and attorney’s fees, according to the tenor of the note.

Turner answered by general demurrer, general denial, and, by way of special answer, alleged the terms of a contract made by appellant and one May with appellee, wherein, as consideration for an assignment of an oil and gas lease, the said May and appellant obligated themselves to drill a well 1,650 feet deep for the appellee at any location which he might select in Archer or Wichita county, the appellant claiming that the contract did not speak the true agreement between the parties, and for that reason, the appellant and the said May failed to drill the well under the contract. The appellant further alleged that thereafter, on the 10th of March, the appellee procured him to execute the note sued on, representing to the appellant that appellee needed money and wanted the note for the purpose of enabling him. to procure a loan at the bank, expressly agreeing that the note was not to be paid by the appellant, and was not in consideration of any debt due by the appellant to appellee on the contract; that, therefore, .the note was without consideration. Appellant then prayed that, the note and the contract for digging the well should both be canceled, set aside, and held for naught.

. In reply to the appellant’s answer, the ap-pellee, by supplemental petition, pleaded a general demurrer, a general denial, and specially alleged that he entered into the contract with appellee and May, as set forth in appellant’s answer, but denied that the' contract was entered into through mutual mistake, and further alleged that on the 10th day of February, 1926, the appellee notified appellant and May, giving the location where he desired the well to he drilled; that on the 10th of March, 1926, he again requested appellant to proceed with drilling the well, and that the appellant then agreed, in lieu of performance of the contract, that the costs of drilling said well to him and May would be the sum of $4,600, and executed the note sued on in satisfaction of the debt already incurred. He further specially denied that the note was not executed in good faith and for a valuable consideration, and specially denied that.the note was delivered to appellee for the sole and only purpose of enabling him to borrow money, but on the contrary the note was delivered in settlement of the account due the appellee by the appellant, by virtue of the breach of the contract set forth by appellant in his answer. The appellee pleaded in the alternative that if the note was given to appellee by appellant without consideration, that under the terms of the contract, as set forth in appellant’s answer, appellant was bound and obligated to drill the well for appellee; that demand for drilling the same had been made and refused by appellant, to appellee’s damage in the sum of $5,000, and prayed for judgment on the note, or in the alternative for judgment in the sum of $5,000 damages for breach of the contract.

The case was submitted to a jury upon special issues; th,e findings being in effect as follows: That plaintiff and defendant agreed that the note sued upon by plaintiff would be in satisfaction of the contract made by May and Turner to Parker, and that Turner did not deliver the note in question to Parker as an accommodation note to. be used by the latter as collateral security for a loan with the understanding that it should be thereafter returned to Turner. The jury further found that the reasonable cost of drilling the well would he $5,000.

The first proposition urged is that where the evidence shows a lack of consideration for the execution of a liquidated demand, it is error for the court to render judgment for the amount, of the demand. The proposition is sound as an abstract principle of law, but there is evidence showing that there was a consideration for the note. The testimony of appellee shows that the note was executed in settlement of the amount due him by reason of the failure of Turner arid May to drill the well according to the contract- He is corroborated by the witness Warren, who heard the conversation between the parties which led up to the execution of the note.

A pre-existing debt is sufficient consideration for the execution of a note executed in lieu of the debt. Hall v. Krauskopf (Tex. Civ. App.) 52 S. W. 117; 8 C. J., p. 215.. R. S. art. 5933, § 25, expressly provides that an antecedent of a pre-existing debt constitutes value and is termed such, whether the instrument is payable on demand or at. a ru-tare time, and it is further held that taking a note under such conditions is a taking in due course of business. Adams v. Williams, 112 Tex. 469, 248 S. W. 673.

The second issue submitted to the jury was so submitted at the reguest of appellant, and the finding thereon, that the note sued upon was not accommodation paper, is, in effect, a second finding that the note is supported by a sufficient consideration.

The appellant’s second contention is that there is a misjoinder of causes of action, where plaintiff brings suit on a promissory note in the same action with a suit for damages on a contract where the note was executed two years after the contract was entered into and not forming a part of the original transaction. It may be conceded that this is also a sound proposition of law in the abstract, but it does not apply to this case. The evidence shows that the note grew out of the contract and was executed in lieu of and as evidence of the amount of damages due by reason of appellant’s failure to perform.

We do not assent to that part of the proposition which insists that there is a misjoin-der of causes of action. Plaintiff first sued upon the note. The defendant denied that there was any consideration for the note and pleaded the contract. By a supplemental petition, plaintiff, in the alternative, set up his version of the contract, and prayed that if he was not entitled to recover upon the .note then that he recover the amount of his damages, which he alleges in his alternative plea to be $5,000.

Under the liberal rules of pleading and practice in Texas, it is permissible for a plaintiff to plead and pray in the alternative when he is in doubt as to his right 'to recover upon the cause of action first set up. This is permissible even in an original pleading, and, for a stronger reason, he may seek to recover in the alternative upon facts set up in a supplemental petition when the answer of the defendant raises a doubt as to his right to recover upon the cause of action declared upon in his original pleading. Sparkman v. First State Bank (Tex. Civ. App.) 246 S. W. 724; Id., 112 Tex. 33, 244 S. W. 127; Buckholts State Bank v. Thallman (Tex. Civ., App.) 196 S. W. 687; San Angelo Cotton Oil Co. v. Houston Cotton Oil Mill & Mfg. Co. (Tex. Civ. App.) 185 S. W. 887; Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787; Townes Texas Pleading (2d Ed.), 478-479.

The third complaint is that the court permitted the appellee Parker to testify as to the cost of drilling an oil well. This proposition is overruled. Since Parker was seeking to recover in the alternative, it was necessary for him, to recover upon his alternative plea for damages, to prove the.amount of his damages, and this testimony was presumably offered and admitted upon that branch of the case. However, since the jury found that the note was not accommodation pap'er, this testimony becomes immaterial, and if it is error, it is harmless.

For the reasons just stated, the court did not err in submitting the issue inquiring as to the cost of drilling the well. If the jury had found against appellee' upon the first two issues, then they should have found upon the third issue. Having found for the appellee.upon the note, the finding as to the cost of the well becomes an immaterial finding.

For the reasons stated, the judgment is affirmed.
      <&wkey;For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes