author: SMITH, J.

text:
    CENTRAL POWER & LIGHT CO. v. WILLACY COUNTY.
    (No. 8155.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1929.
    Wilson & Eentz, of San Antonio, and James Q. Louthan, of San Benito, for plaintiff in error.
    R. F. Robinson, of Raymondville, for defendant In error.
   SMITH, J.

The Raymonclville-Harlingen public highway extends south from Raymond-ville to the Willacy county boundary line. The Central Power & Eight Company maintains and operates an electric po-wer line over its right of way adjacent and parallel to the highway. The latter is at present 60 feet wide, and the county authorities desire ' to extend its width to 80 feet. This extension, if made as planned, will occupy the whole of the right of way of the power line from Raymondville to the county line, necessitating the removal of the poles, wires, and other equipment of the power company and the surrender of its easement and right of way. This right of way and the easement thereover were required through purchase by the company from the owners of the land traversed.

In pursuance of this plan the county of Willacy, through its proper authorities, instituted proceedings to condemn the land occupied by the power company’s right of way. In the petition for condemnation the purpose for which the land was sought to he condemned'is stated as follows: “That said above described property is intended to be used by your Petitioner, the said Willacy County, as a public road or highway; and that it is necessary for the establishment, location, construction and maintenance of said public highway that your Petitioner take, acquire, hold and enjoy said above described real estate for the purpose of a right of way for such public highway.” It seems to be conceded that the proceeding was regularly instituted as to form; that proper notice was given; that the whole proceeding was regular, but subject to be defeated or revised by the complaints to be hereinafter discussed.

The commissioners -appointed by the county judge awarded damages to the power company, which appealed to the county court, where the matter was tried by jury, resulting in a judgment condemning the land occupied by the power company’s right of way, and awarding damages to that company in the sum of $200. The power company has brought the case to this court on writ of error.

Upon the trial the parties entered into an agreement: “That the Defendant Central Power and Light Company had an easement in and right of way over the lands immediately east of and paralleling the highway which runs from the South line of the limits of. the City of Raymondville, Texas, to the South line of Willacy County, Texas, and has erected and maintains under authority of the ownership of such easement and right of way over such lands an electric transmission line consisting of one hundred and thirty-seven (137) poles and various numbers of wires, guys, appurtenances and fixtures, which electric transmission line was used by it at such time to supply electricity to the public generally, and that such easement and right of way over such land is sought by the Plaintiff to be condemned in this proceeding.”

Plaintiff in error contends, first, that because the property involved was already burdened by the public use made of it by plaintiff in error, it could not properly be taken under the right of eminent domain for another and different public use, so as to destroy or materially impair the prior use, except by express or implied authority of the Legislature, which authority plaintiff contends is lacking in this case. It is obvious from the agreed statement quoted above that if the condemnation here sought is enforced it will completely take away the use plaintiff in error is making of the property for the purpose of its power line. That use is within itself a public use, so recognized by our statute, which grants the right of eminent domain to those desiring to establish such use in this state. Art. 1436, R. S. 1625.

It seems to be the settled general rule in all jurisdictions that property already appropriated to one public use cannot be taken for another public use without legislative authority expressly given or necessarily implied, when such taking will result in the practical ' destruction of the prior use. 10 R. C. L. 198, 166; Sabine & E. T. Ry. Co. v. Gulf & I. Ry. Co. of Texas, 82 Tex. 162, 46 S. W. 784; Ft. Worth & R. G. R. Co. v. Southwestern Telegraph & Tel. Co., 86 Tex. 160, 71 S. W. 270, 60 L. R. A. 145; Ft. Worth Imp. Dist. No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S. W. 164, 48 L. R. A. (N. S.) 884; Texas Midland R. R. v. Kaufman County Imp. Dist. No. 1 (Tex. Civ. App.) 175 S. W. 482. This rule has no application where the proposed use will not materially interfere with the operation of the existing use. Under the agreed facts in this case, however, the proposed use will completely exclude the existing use, will drive plaintiff in error from its right of way, and require it to remove all its salvageable utilities therefrom.

However, a modification of the general rule is intimated by our Supreme Court in Sabine & E. T. Ry. Co. v. Gulf & I. Ry. Co. of Texas, 82 Tex. 102, 46 S. W. 784, in which it is suggested that property already appropriated to one public use may be taken for another where it is found that the proposed use is of so great importance to the public as to require that the existing use, if of less importance to the public, shall give way to it, provided the proposed enterprise or use cannot be accomplished in any other practical way. In our opinion this is a reasonable and necessary exception to the general rule against the substitution of one public use for another. It is not difficult to conceive that the establishment or widening of a great public highway may be of such paramount importance to the public as to justify the taking of property already appropriated to the use made of it by plaintiff in error, and it is probable that the evidence in the trial below was sufficient to make the issue of the relative importance of the two uses a question of fact for the court or jury, whose finding thereon would be conclusive. But there was no effort to establish the further requisite to the substitution of uses — that there was no other practical way by which the object of the condemnation proceedings could be accomplished than by taking all of plaintiff in error’s right of way. The true situation, of the existing highway, here sought to be widened, is not shown, except that it parallels and adjoins plaintiff in error’s right of way. So far as the record shows to the contrary, as a practical matter, the highway could be widened to the west, or equally east and west, without materially impairing plaintiff in error’s easement, and if that be true the proceeding is brought within the general rule against the taking of property for one public use which is being legally devoted to an existing and inconsistent public use of another sort. The judgment must accordingly be reversed.

It is stated in defendant in error’s-brief that: “It is agreed by all, altho not shown in the pleadings or the Statement of Facts that adjacent to and alongside the highway on the West was the M. P. Railroad, and on the East of the highway ■ -was the high line of the Appellant, which high line has since been removed so as not to be included in the widened Highway.” Since the agreement and the facts stated in the brief are not in the record, it is beyond the power of this court to take cognizance of them. The appeal must be determined by matters within the record, as a matter of course.

We overrule plaintiff in error’s contention that the petition for condemnation did not sufficiently state the object of the proceeding.

The measure of damages in condemnation proceedings is fixed in the several sections of article 3265, it being provided in subdivision 1, apparently appropriate to this particular proceeding, that: “The commissioners shall hear evidence as to the value of the property sought to be condemned and as to the damages which will be sustained by the owner, if any, by reason of such condemnation * * * and * * * shall assess the actual damages that will accrue to the owner by such condemnation.”

The property sought to be taken in this case consists primarily of the easement owned and exex-cised by plaintiff in error oyer the land embraced in its right of way. Obviously, plaintiff in error is entitled to an award for the reasonable market value of that easement, which will be totally destroyed, for the distance of the several miles sought to be condemned in this proceeding. Plaintiff in error is also entitled to recover the value of all of its improvements, if any, which cannot be removed from its right of way, as well as the reasonable and necessary expense of removing such of its property as may be salvaged.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: RANDOLPH, J.

license: Public Domain

text:
    DUNLOP TIRE & RUBBER CO. v. TEEL et al.
    (No. 3166.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1929.
    Berry, Stokes, Warlick & Gossett, of Vernon, for appellant.
    Storey, Leak & Storey, of Vernon, for ap-pellees.
   RANDOLPH, J.

This suit was filed in the district, court of Wilbarger county to recover upon three of a series of five promissory notes —the first two of said series having been paid. The notes sued on were signed by Clarence Teel, and were given to readjust debts owing by Teel to the appellant. Clarence Teel and Mark Neal, who constitute the Teel-Neal partnership, and A. C. Hill and O. M. Craig, were joined as defendants in the suit. Judgment was rendered upon special issues and answers thereto, against the defendants Clarence Teel, A. C. Hill, and O'. M. Craig (upon an instructed verdict), and against appellant, and in favor of defendant Mark Neal upon the answers given by the jury to the issues submitted to them. From this judgment, that the plaintiff take nothing against the defendant Mark Neal, this appeal has been prosecuted.

The suit, as stated, was based, as against the defendant Clarence Teel, upon the three notes executed by him; as against the defendants Craig and Hill, because of their guaranty in writing of the payment by said Clarence Teel of.the above-described notes.

As against the defendant Neal, plaintiff’s cause of action, as stated in its petition, is as follows:

“Plaintiff further alleges that the Teel-Neal partnership, consisting of Mark Neal and Clarence Teel, was formed on or about March 21, 1927. That prior to and immediately preceding the formation of such partnership, Clarence Teel had been doing business in Vernon as the Clarence Teel Tire Company, and this plaintiff had sold to said tire company various goods, wares and merchandise on open account, and at the time of the formation of aforesaid partnership there was past due, unpaid and owing to this plaintiff, on said open account an amount in the principal sum of aforesaid notes; -that such account constituted the chief liability of the Clarence Teel Tire Company.
“Plaintiff further alleges that in the formation of the Teel-Neal Tire Company, Mark Neal promised and agreed with Clarence Teel as part consideration for his interest in the said partnership,.
“(1) the assumption by him as a partner in the Teel-Neal Tiie Company of the liabilities and obligations of the Clarence Teel Tire Company.
“(2) a payment by Mark Neal of $200.00 to one John Huntley for advances made by Huntley to the Clarence Teel business. That Mark Neal received as a valuable consideration for aforesaid agreement, promise, and part performance (1) one-half interest in certain equipment, goods, wares and merchandise belonging to the Clarence Teel Tire Company, (2) one-half interest in certain assets of the Clarence Teel Tire Company in the form of accounts receivable, (3) his right to do business with Clarence Teel as a partner in the Teel-Neal Tire Company. In agreeing to assume the assets ancl liabilities of the Clarence Teel Tire Company Mark Neal promised as a partner in the Teel-Neal Tire Company for aforesaid valuable consideration to pay aforesaid obligation and account due to this plaintiff since said obligation and account constituted the chief liability of the Clarence Teel Tire Company, which liability was assumed by the Teel-Neal Tire Company as aforesaid.
“Plaintiff further alleges that on or about March 23rd, that aforesaid account was merged into aforesaid notes, and that in receiving said notes this plaintiff in nowise released Clarence Teel or Mark Neal from their promise and agreement with each other that the Teel-Neal partnership would assume the payment thereof; that this plaintiff received said notes with the understanding and agreement between this plaintiff, Teel and Neal that'the partnership of Teel and Neal were responsible for the payment thereof.
“In addition to aforesaid allegations plaintiff says that at the time of the making of said notes and before receiving the same Mark Neal promised and agreed with this plaintiff, as an original undertaking as a partner in the Teel-Neal partnership and for and in consideration of this plaintiff’s (1) promise to forbear to sue Clarence Teel on said past due account as it would otherwise have done (2) and at the request and for the benefit of Mark Neal to extend credit to the Teel-Neal partnership, to assume as a firm obligation the payment of aforesaid notes; and aforesaid consideration was given by this plaintiff and received by defendant Mark Neal.
“Plaintiff further alleges that but for the representations of Mark Neal as aforesaid that it would not have extended credit to Mark Neal’s firm nor would it have forbore suit against Clarence Teel, and that relying upon aforesaid representations by Neal this plaintiff has suffered detriment if Neal be now permitted to deny aforesaid promises and agreements.
“Plaintiff would show that aforesaid promises and agreements by Mark Neal have been ratified and adopted in that notes Nos. 1 and 2 of aforesaid series were paid by the firm check of- the Teel-Neal Tire Company, said checks being countersigned by Mark Neal.”

The defendant Neal filed his answer, consisting of general and special exceptions, general denial, and a special plea setting up certain facts as a.defense. Defendants Hill and Craig filed only a general denial.

The issues presented by the pleadings and the evidence were: Did the defendant Mark Neal, when he went into partnership with Clarence Teel, agree and promise Clarence Teel, as a part of the consideration for his purchase of a half interest in the tire business of Teel, to assume the indebtedness of Clarence Teel Tire Company? And, second: Did Mark Neal make the promises and representations set out in plaintiff’s petition for the purpose of securing the extension of credit to the Teel-Neal Tire Company, and thereby agree to pay the debt of the plaintiff?

We can serve no useful purpose by detailing the evidence, but think it sufficient to say that the evidence was sharply conflicting. The plaintiff’s evidence clearly supported the allegations of its petition, while that of the defendant clearly negatived such allegations and proof of the plaintiff. This being true, the verdict of the jury upon the issues is conclusive upon us.

The trial court submitted the case to the jury upon three issues, as follows:

“Special Issue No. 1:
“At the time of the formation of the partnership between Clarence Teel and Mark Neal under the firm name of Teel-Neal Tire Company, did Mark Neal, as a part of the consideration paid by him for the interest acquired by him in the partnership of Clarence Teel Tire Company, agree with Clarence Teel that the new firm of Clarence Teel and Mark Neal would assume and pay off the debt involved in this suit? Answer yes or no.
“Answer: No.
“Special Issue No. 2:
“At the time of the formation of the partnership between Clarence Teel and Mark Neal under the firm name of Teel-Neal Tire Company, did Mark Neal, as a part of the consideration paid by him for the interest acquired by him in the partnership of Clarence Teel Tire Company, agree with Clarence Teel that the new firm of Teel-Neal Tire Company, as a partnership, would pay all liabilities ot the Clarence Teel Tire Company outstanding at the time of the formation of the partnership? Answer yes or no.
“Answer: No.
“Special Issue No. 3:
“Did the defendant Mark Neal promise the plaintiff that the Teel-Neal Tire Co. would pay the notes involved in this suit as a consideration for credit extended and to be extended to the Teel-Neal Tire Company? Answer yes or no.
“Answer: No.”
Upon these issues, therefore, the verdict is conclusive. Old River Rice Irr. Co. v. Stubbs (Tex. Civ. App.) 168 S. W. 28, writ denied; Memphis Cotton Oil Co. v. Gardner (Tex. Civ. App.) 171 S. W. 1082, writ denied; Stevens v. Crosby (Tex. Civ. App.) 166 S. W. 62; Four Brotherhood Oil Co. v. Kelley (Tex. Civ. App.) 235 S. W. 604; Mansfield v. Rigsby (Tex. Civ. App.) 273 S. W. 290.

The plaintiff requested, and the trial court refused, to give'to the jury special issue No. 7, which is in words as follows: “At the time of the making of the notes in suit did Mark Neal by representations or conduct lead tile Dunlop Tire & Rubber Company to believe that The Teel-Neal Tire Company would pay said notes?”

The plaintiff’s suit is based upon an express promise on the part of Marls; Neal to pay its debts, and further that such representations, i. e., promises, were the consideration for the extension of time to Clarence Teel, and for the extension of credit to the Teel-Neal Tire Company. This being true, those issues were fully presented to the jury, ■and, when they answered them in the negative, they settled the question that any such promise was ever made. There was, therefore, no purpose to be served by the giving of said special issue No. 7. Further, there were no allegations in plaintiff’s petition which authorized the giving, of said special issue No. 7, as requested.

The refusal of the trial court to define “consideration” is charged as error. The court charged, as stated in issues Nos, 1,2, and 3 above. The word “consideration” as therein used has no technical meaning requiring the giving of a- charge defining such word. It has a plain and simple meaning as commonly used, and especially would the jury need no further instructions as to its meaning, in view of the fact that the consideration named is clearly indicated in the charge — the agreement of Neal to assume and pay off the debt to plaintiff.

We have examined all propositions and assignments, and, finding no reversible error, we affirm-.the trial court’s judgment.


author: O’QUINN, J.

text:
    ROYALTY INDEMNITY CO. v. MADRIGAL.
    (No. 1779.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 16, 1929.
    Hunt, Teagle & Moseley and C. A. Teagle, all of Houston, for appellant.
    Perkins & Butts, of Houston, for appellee.
   O’QUINN, J.

Appellee filed this suit in a district court of Harris county, Tex., to set aside an award of the Industrial Accident Board.

Her petition contained the usual and necessary allegations. Appellant answered by general denial and by cross-action, asking judgment in its favor on its plea that the deceased was not injured and did not die from an injury received in the course of his employment.

The case was tried to a jury upon special issues, in answer to which they found that deceased, Madrigal, was injured in the course of his employment; that he received his injuries while engaged in and about the furtherance of the business of his employer, Griswold’s Sons; and that appellee should receive compensation in a lump sum. On the findings of the jury judgment was entered in favor of appellee. Appellant’s motion for a new trial was overruled, and it seeks to set aside said judgment by this appeal.

The record reflects: That on September 10, 1927, Antonio Madrigal, husband of ap-pellee, was an employe of J. M. Griswold’s Sons, contractors, doing street work in the city of Houston. Griswold’s Sons were subscribers under the Workman’s Compensation Act (Rev. St. 1925, arts. 8306-8309), and carried a policy of insurance with the Royal Indemnity Company, covering its employes, which on said date was in full force and effect. That on said date Madrigal was working as a “gravel spreader,” and after work hours and after he had quit work for the day, he mounted a truck that had been hauling gravel to be used in the work being done, hut which truck did not belong to his employer, Griswold’s Sons, and over which they exercised no control, it being hired from one J. B. Davidson, who was in the hauling business and operated trucks to haul gravel to be paid for by the load. That while going from the place where work ceased on this Saturday evening, to the office of Gris-wold’s Sons, for the purpose of being paid for work done prior to and up to and including Thursday of that week, the truck turned over, injuring Madrigal, from which injury he died. The point at which Madrigal was injured was not on his employer’s premises, but was some mile and a half therefrom and half a mile from the place of work. Ap-pellee gave proper notice of the injury and claim for compensation, and duly filed her claim before the Industrial Accident Board. Said claim was heard by the Industrial Accident Board which on November 26, 1927, made a final award, and appellee not being satisfied with said award gave notice that she would not abide same and in due time filed this.suit to set same aside. Appellant also gave notice that it .was not satisfied with said award and would not abide same, and in answer to the instant suit, within the required time, by cross-action set up its suit to set aside said award.

There was no error in the court’s refusing to submit appellant’s special requested issue inquiring whether deceased’s employer, Griswold’s Sons, contracted to furnish deceased with transportation to and from his work. The undisputed evidence showed that transportation was no part of deceased’s contract of employment. Undisputed facts are not to be found by the jury.

The court did not err in refusing to submit appellant’s requested issue as to whether the truck from which deceased fell, thus receiving the injury from which he died, was the property of and under the control of one Davidson or his employs. It was undisputed that Davidson was the owner of the truck, and that appellant had no control over same, other than to merely point out to the driver where to dump the gravel. The finding of undisputed facts should not be submitted to the jury.

Appellant’s first and second propositions assert error in the court’s refusing its request for an instructed verdict in its favor, and its sixth, seventh, and eighth propositions complain that the jury’s findings that deceased was injured in the course of his employment, and that he received his injury while engaged -in and about the furtherance of his master’s business, are without support in the evidence. As those propositions raise the same question whether appellee had the right, under the evidence, to recover, we shall consider them together.

We think the rule is well settled by the great weight of authority that where an employe's work for the day has ended and he has been checked out, and the master has no further control over him and has not contracted to furnish him with transportation to and from his place of labor, and he proceeds to leave the place of his labor, choosing his own route and method of travel, and for his personal convenience voluntarily mounts a truck, not the property of nor under the control of his employer, and while thus traveling, and not on the premises of his employer, he is injured by a mishap to the truck, his injury cannot be said to have been received in the course of his employment, and therefore is not compen-sable under the Workmen’s Compensation Law. American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949 (writ refused); Diaz v. Warren Bros. Co., 95 Conn. 287, 111 A. 206; Kowalek v. New York Railway, 229 N. Y. 489, 128 N. E. 888; Rausch v. Standard Shipbuilding Co., 111 Misc. Rep. 450, 181 N. Y. S. 513; Tallon v. Railway, 232 N. Y. 410, 134 N. E. 327, 21 A. D. R. 1218; Swanson v. Latham, 92 Conn. 87, 101 A. 492; London Guaranty & Accident Co. v. Smith (Tex. Civ. App.) 290 S. W. 774 (writ refused); Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; London Guarantqe & Accident Co. v. Thetford (Tex. Com. App.) 292 S. W. 857.

But appellee, by various propositions, insists:

(a) That although deceased’s work for the day had ended and he had left the place of his work and was riding a truck that did not belong to his master and over which his master had no control, and his master being under no obligation to furnish him transportation, and although deceased was not on or about or near to his master’s premises at’ the time he received his injury, nevertheless the relation of employer and employe still existed, for in that deceased was on his way from the place where his work for the day ended to the office of his employer for the purpose of getting his pay for work done;
(b) That deceased’s employment did not necessarily cease when the work actually being done by him ended for the day, but that it included the time in going from the place of work to the pay office of his master to receive his wages, and that his injury therefore arose out of and was received in the course of his employment;
(c) That although deceased had ceased his actual labors for the day and had left his place of work and was not on or about the premises of his master when injured, nevertheless at the time he received his injury he was as much under the control of his master and was as much performing services for his master as though he was actually performing the labor for which he was employed, because at the time of being injured he was. on his way from the place of his labors to the pay office of his master, where he was required to go to receive his pay; and
(d) That being on his way to the pay office of his master to receive his pay, he was performing a duty or service connected with his employment and 'in the furtherance of the affairs of his employment, and as a part of the contract of employment, by reason of all which the judgment should be affirmed.

The above contentions are to the same effect: That because deceased, although after work hours and not on or about his employer’s premises and traveling on the route and in the manner of his own selection, and without restraint or under the control of his master, in going to the office of his employer for the purpose of being paid his wages, was injured on the way, he had not ceased work for his employer, but at the time of his injury was performing services for his employer by going to the place required to receive his pay, and therefore was entitled to compensation because said injury was received in the course of his employment. We do not' believe this contention can be sustained. As a general rule, a workman who has ceased his work for the day and is on his way to the office of his employer to obtain his pay, or after obtaining such pay is leaving the premises of his employer and is injured on the premises of his employer, will be held entitled to compensation. Crane Co. v. Industrial Com., 306 Ill. 56, 137 N. E. 437; Riley v. William Holland & Sons (Eng.) 1 K. B. 1020, 4 B. W. C. C. 155; Nelson v. Belfast Corporation, 42 Irish Lt. 233, 1 B. W. C. C. 158; Lowry v. Sheffield Coal Co. (Eng.) 1 B. W. C. C. 1.

Appellee cites us to and relies upon the case of Riley v. William Holland & Sons, supra, to sustain her contention. We think that case is not at all on all fours with the instant case on the facts. There the injured employ® had not only gone to the office of her employer-to obtain her pay, but was actually on the premises of her master at the time she was injured. Not so in the instant case.

In Nelson v. Belfast Corporation, supra, the employe’s contract of employment called for pay for the time required in going to and from the pay office. Not so in the instant case.

While it has been held, as stated above, that an employs, who after work hours has gone to the office of his employer to obtain his pay and is injured while on the premises of his employer is entitled to compensation, it is equally as well settled that when the employs, after work has ceased, goes to the office of his employer to be paid for his work, and in going to or after leaving his employer’s premises, and while not on his employer’s premises, the employé is injured, the injury does not occur in the course of his employment, and is not compensable. Parker v. Pont (Eng.) 5 B. W. C. C. 143; Phillips v. Williams (Eng.) 4 B. W. C. C. 143; Ames v. New York Central Railway, 178 App. Div. 324, 165 N. Y. S. 84; London Guarantee & Accident Co. v. Thetford (Tex. Com. App.) 292 S. W. 857.

The case of Parker v. Pont, cited supra, is very similar on the facts to the case at bar. There a farm laborer had, at the end of his day’s work, to go about two miles from his place of work to- the farm of his employer to receive his pay and get instructions for the next day’s work. A fellow workman happened to -be going the same way with a cart and invited him to ride therein. The workman did so and was thrown out and injured on the way by the horse suddenly starting. Claim was made for compensation and was refused, it being held that the accident and injury did not arise out of or in the course of his employment.

In Ames v. New York Central Railway, supra, Ames was a yard engineman, and when he had completed his work for the day he turned in his engine and his time slip showing his work completed. He then started to the pay office of his employer some distance away, and on the way walked some 1,000 feet along the railway tracks and crossed over another street and onto some railway tracks on that street, which were elevated tracks and not used in connection with the work he did, for the purpose of catching a passing freight train and riding it to the place where he could collect his pay. He was struck by a passing freight train and killed. It was held that he was not at the place of his injury by any authority of his employer and was not at said place on any business in behalf of his employer, but was there for purposes of his own. In the instant case the deceased, Madrigal, had no authority from his 'employer to be where he was when the accident occurred, and was not there on any business in behalf of his employer, but was there for purposes of his own.

While London Guarantee & Accident Go. v. Thetford, supra, did not involve the question of whether an employs injured wlnle off the premises of his employer en route to the office of his employer to be paid his wages was entitled .to compensation, yet it doés emphatically hold that, as in the instant case, where there is no obligation on the part of an employer to transport an employe to and from his place of work, and that while such employe is going to or returning from his place of labor, in furtherance of his own purposes and affairs, he voluntarily takes passage on some passing vehicle to reach his place of work and is injured while riding such conveyance, is not entitled to compensation because the injury was not sustained in the course of his employment It occurs to us that in that case the injured employe was at least as much engaged in the furtherance of his master’s business and performing services for his master in going to the place of his work to earn wages as was the injured employe in the instant case in going to the office of his employer to collect wages already ■earned. We think the reasoning in the one case is applicable to the other.

From what we have said it follows that the court erred in refusing appellant’s requested peremptory instruction for a .verdict in its favor.

The judgment is reversed,' and judgment .'here rendered for appellant.


author: STANFORD, J.

text:
    CUSTARD v. FLOWERS.
    (No. 733.)
    Court of Civil Appeals of Texas. Waco.
    Jan. 24, 1929.
    Rehearing Denied March 7, 1929.
    Tom Whipple and Lem 'Wray, both of Waxahachie, for plaintiff in error.
    Josh I-I. Groce, of San Antonio, for defendant in error.
   STANFORD, J.

This suit was by Henry Flowers against Josie Custard to reform and correct the description of certain lots as described in a partition deed, so as to make such description conform to the description mutually intended by the parties when they executed said deed. The case was tried before the court without a jury, and judgment rendered for defendant in error reforming the description in said deed. Plaintiff in error has appealed, and presents the record here for review. The facts of the case will appear more fully from the findings of fact by the trial court hereafter stated. .There is no statement in the record.

Under her first proposition, plaintiff in error, Josie Custard, contends: The mistake, if any, was unilateral, and was caused by Henry Flowers or his attorney, and, no element of fraud being alleged, neither law nor equity will relieve against the deed in writing duly executed. Under her second proposition, plaintiff in error contends: Defendant in error, having had knowledge of the lots involved as original purchaser, custody of deeds, and complete charge of the preparation of the deed which he seeks to reform, failed to nse dne diligence to prevent the unilateral mistake, if any, in which plaintiff in error had neither part nor knowledge, and neither law nor equity will relieve against his deed in writing duly executed. The court found that Henry Flowers and his' wife owned four houses and lots in Waxahachie, and, at the time of the wife’s death in 1925, she left surviving her two children, Josie Custard and Monroe Howell. During the year 1926, Henry Flowers and the. two children of his deceased wife undertook to partition the four houses and lots above mentioned by the execution of a partition deed; so they agreed upon three men to appraise the property as a basis for partition thereof. Said committee appraised the property, and in its report described the property in block No. 176 substantially as follows: “A four-room house two doors from the Holy Roller Church, valued at $1,100.00, and the house next to it valued at $1,000.00.”

By the partition agreement reached, Henry Flowers was to take two houses and lots, and Josie Custard and her brother two houses and lots. Of the two houses and lots in block 176, and which were adjoining, Henry Flowers was to get No. 3 and Josie Custard and her brother were’ to get No. 4. After said agreement, the attorney for Henry Flowers went upon the ground and looked at the property, and drew a partition deed, which was executed by all -three parties at interest. As to the property in block No. 176, which consisted of lots Nos. 3 and 4, one of these lots as platted on the map is 60 feet wide and the other is 50 feet wide. In 1901 Henry Flowers built a fence lengthwise of this property so as to make the fence cross a well. This fence was between the two houses on the property, but was some 10 feet from, and about parallel with, the line 'between the two lots. This fence was standing when the committee of appraisers viewed the property for the purpose of valuing it, and they considered said fence as the line between the land belonging to the two houses on the property. Neither Henry Flowers nor Josie Custard or her brother, Monroe Howell, gave any particular thought to the location of the line between the two lots at the time of the partition. When Mr. Groce (attorney for Henry Flowers) drew the partition deed, he described the property as lots Nos. 3 and 4 in said block No. 176, and set aside one lot to Josie Custard and her brother and the other lot to Henry Flowers.

Some time after the execution of the partition deed, Josie Custard had a surveyor to go upon the ground and locate the boundaries of her property as described by lot and block number in said partition deed, and it was found that her line was far enough over on Henry Flowers’ lot to take about 4 feet of his house. Josie Custard'contended for the land over to that line, and Henry Flowers brought this suit to reform said partition deed so as to make it convey the property according to the intention of the parties at the time of its execution.

The trial court said further: “My conclusion is that all the parties to said partition deed signed the same without noticing that the description by lot and block number varied from the description upon the ground, and that the description as given in said deed was as to all parties thereto a mutual mistake.” In his judgment the court finds: “The court finds as a fact that in the partition * ⅞ * it was the intention of all parties to the said partition deed that Henry Flowers should receive in said partition all of that portion of block 176, which was inclosed in the fence of lot 3, out of said block; that said fence was thought to be the boundary line between lots 3 and 4 out of said block, and was accepted so to be by all parties to said partition.” It will thus be observed the trial court found, in effect, that all parties interested in said partition' at the time they executed said partition deed understood that the fence between lots 3 and 4 was the dividing line between said lots, and so-understood that lot 3, awarded to Flowers, extended up to said fence on the one side-thex-eof, and that lot 4, awarded to Josie Custard and her brother, extended only to said fence on the other side, and the fact that the partition deed, as executed, placed the dividing line between said two lots 16 feet from said fence over on lot No. 3, was a mutual mistake, not intended by the parties at the time of the execution of said deed. There being no statement of facts in the record, the findings of the trial court must be accepted by this court as correct.

PlaintiiEf in error, in a very able argument and citation of authorities, contends, in effect, that the mistake, if there was such, was a unilateral mistake on the part of defendant in error alone, and that, as he built said fence bisecting the well some 20 years-prior to the partition, he ought to have known said fence was not the line, and that he was guilty of such negligence as to preclude any equitable relief being granted to him. If defendant in error was seeking to set aside the partition deed on the ground of a unilateral mistake on his part as to the location of said dividing line, then the contention of plaintiff in error would be correct, and the case of Wheeler v. Holloway (Tex. Com. App.) 276 S. W. 653, and other cases cited by plaintiff in error, would be controlling; but the court found the mistake here involved to be a mutual mistake, and this is an equitable proceeding, not to set aside said partition deed, but to x-eform it so as to give it the effect all parties intended it to have. Under the facts as found by the trial court, defendant in error was entitled to have said deed reformed, recognizing the fence as the dividing line, as all parties to said partition deed intended. Dunham v. Chatham, 21 Tex. 231, 73 Am. Dec. 228; Lott v. Raiser, 61 Tex. 665; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Silliman v. Taylor, 35 Tex. Civ. App. 490, 80 S. W. 651; Tyilkills v. Dagle (Tex. Civ. App.) 265 S. W. 918, 923; Murphy v. Benson (Tex. Civ. App.) 245 S. W. 249. In the case of San Antonio National Bank v. McLane, 96 Tex. 48, 70 S. W. 201, our Supreme Court said:

“Mr. Pomeroy, in his work on Equity Jurisprudence (Volume 2, § 856), expresses the doctrine in this language: ‘As a second requisite, it has sometimes been said in very general terms that a mistake resulting from the complaining party’s own negligence will never. be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that, where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but even with this more guarded mode of statement, each instance of negligence must depend to a great extent upon its own circumstances.’ The text is well sustained by authority, and has been approved by this court in the following cases: Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; City Bank of Houston v. First Nat. Bank of Houston, 45 Tex. 203; Alston v. Richardson, 51 Tex. 6.”

The record shows that defendant in error is an ignorant old negro man; that he bought one of said lots in 1895 and the other in 1901, both said lots Nos. 3 and 4 lying side by side. More than 20 years ago he built the fence between said lots, which was aft-erwards considered as the dividing line. As to whether or. not defendant in error, under all the circumstances, in considering said fence at the time of the partition the dividing line, acted as an ordinarily prudent man situated and circumstanced as he was would have done, was a question of fact for the trial court, which, in support of the judgment, we must presume the trial court found in favor of defend'ant in error. We overrule the above propositions.

Under her third proposition plaintiff in error contends that Monroe Howell, who was a party to said partition deed, was a necessary party to this suit, notwithstanding he had conveyed all the interest he acquired under said deed to plaintiff in error before this suit was filed, and that the trial court erred in overruling her plea in abatement raising the question here involved. The court found, in effect, that immediately after the execution of the partition deed Monroe Howell conveyed to his sister, plaintiff m error, all interest in the property involved which he acquired under said deed, and that, at the time this suit was filed, he had no interest in said property. We think plaintiff in error had full knowledge of all the facts in connection with the partition, and what she and her brother were getting under said deed, and what she was getting under the deed from Monroe to herself. As Monroe Howell had no interest in the property at the time the suit was filed, it necessarily follows the suit could in no way affect him. We think the court was correct in overruling the plea in abatement.

No reversible error being shown, the judgment of the trial court is affirmed.


text:
    SOUTHERN CASUALTY CO. v. EHLERS.
    (No. 8115.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1929.
    Rehearing Denied March 6, 1929.

      Eskridge & Williams, of San Antonio, and Ohas. Troy, of Beeville, for appellant.
    J. O. Dougherty and 6. C. Robinson, both of Beeville, for appellee.
   SMITH, J.

The appeal presents the question of whether or not the injuries for which appellee recovered compensation were sustained in the “course of his employment,” as contemplated in the Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309).

Appellee was a young unmarried man, residing with his parents in the village of Orange Grove. He was in the employment of the Jackson Motor Company at Sinton, as an automobile salesman, in an undefined territory in San Patricio and nearby counties. He was under no restrictions as to the time, place, or manner of doing the work for which he was employed, seeking customers when and where and as he pleased, and making his sales and deliveries with like freedom of action.

Appellee had effected the sale of two trucks to customers residing in or near Orange Grove. He went to Sinton, obtained the two trucks from his employer, and with other drivers, set out to deliver them on April 19, 1926. The trip from Sinton was slow, so that they reached Orange Grove too late to make deliveries on that day. One of the trucks was left at appellee’s home for the night, and the other at a nearby filling station, to be delivered by appellee to the purchasers, probably on the next day. That night a dance was given at Skidmore, another town 22 miles from Orange Grove, and appellee attended the dance in accordance with his habit of attending such functions whenever they occurred within his reach. He attended this dance, however, with the additional purpose of making sales, if possible, to two “prospects” in Skidmore. He drove to Skidmore in his coupS, which he used for demonstration purposes. He found the prospects, drove around the community with one of them, demonstrating his car, until about 10:30, finishing up at the place of the dance. There he met the other prospect, and tried to make a sale to him. This interview ended at about 11 o’clock, and then,appellee devoted the remainder of his time to the pleasures of the occasion until the dance ended at' midnight, or a little later. He then set out for his home at Orange Grove, accompanied in his car by a friend. On the way home his car collided with an apparently abandoned “trailer” of another car. and appellee was seriously injured. Subsequently he made claim, before the State Industrial Accident Board, for compensation^ against appellant, with whom ap-pellee’s employer was insured, under the provisions of the Workmen’s Compensation Act. The board denied the claim, upon the ground that appellee’s injuries did not occur in the course of his employment. Appellee then carried his claim into the district court, in which he was • awarded compensation, that court holding that he was injured in the course of his employment, and that one question now confronts this court for decision through the appeal of the insuring] casualty company.

It must be conceded that appellee was well within the course of-his employment while going from his home at Orange Grove to the place of the dance at Skidmore, and until he had completed his interview with the two prospects encountered there. It is equally clear that if, at the end of those interviews, he had gotten in his car and gone on back to Orange Groye, and there completed delivery of the trucks parked earlier in the night, without in the meantime stepping aside to do other things not connected with his employment, the scope of his employment would have encompassed him throughout the period in which he would have been so employed, and any injury sustained by him during such period would have been compensable.

But this course is hypothetical; it was interrupted by an actual event, and a contrary purpose, which was itself interrupted by the accident. For, instead of directly proceeding to Orange Grove and resuming delivery of the trucks, he stepped aside from that course and engaged in the dance for the period of about an hour, and then departed for Orange Grove, not for the purpose of resuming without further interruption the delivery of the trucks he had sold, but to get a night’s repose. In this connection appellee makes the contention that there is no evidence that when he set out for Orange Grove it was not with the purpose of proceeding at once to the task of delivering the trucks. But there is nothing to this contention, for it is undisputed that he suspended delivery of the trucks upon arrival with those vehicles at Orange Grove, for the reason that he arrived there with them at sundown, too late for delivery that day, and accordingly he parked them for the night with the intention to deliver the next'day. It becomes a matter of course that, if the hour of sundown was too late for delivery that day, then 1 o’clock at night would also be too late for that purpose.

So the problem is narrowed to the question of whether the course of appellee’s employment was effectually interrupted, within the contemplation of the law, by his stepping aside to spend an hour at the dance, and by the intention of proceeding thence to Orange Grove with the immediate purpose of spending the balance of the night at rest in his home before resuming the activities of his employment.

The question of whether or not ap-pellee was injured in the course of his employment was submitted to the jury through a special issue in which they were required to sky if appellee, at the time of the accident, was “engaged in the performance of his duties as an employee of the” subscriber. In submitting this issue, the court instructed the jury as follows:

“In connection with the above issues you are instructed that, if, prior to said accident, Charles Ehlers had been engaged in an effort to sell the goods of his employer, but later, and still before said accident, had stepped aside from such duties and engaged himself in affairs of pleasures of his own, and, at the time of said accident, had not again resumed the performance of the-duties of his employment, then, and if you so find, you will answer ‘No’ to said question.”

The jury answered the-special issue in the affirmative. No_ objection appears to .be urged by either party to the form or substance of the special issue, or of the accompanying instruction, and hence the finding of the jury thereon would be conclusive upon this court if there was any material evidence to support it. But, as a practical matter, thei evidence is undisputed, whereby a question of law, rather than of facts, is presented. Ordinarily the issue of whether at a given time an employee is acting in the course of his employment is one of fact to be determined by the trial jury or court, as the case may be, but, where the evidence disclosing the situation of the employee at the time he receives injury is undisputed and presents no conflict, then the question becomes one of law, to be applied by the trial judge to the undisputed facts, subject to review and revision by the appellate courts. Such is the case presented in this appeal. We have already stated the case made by the undisputed facts, and it becomes our duty to determine if the trial court correctly applied the law to the undisputed facts, without reference to the finding of the jury. In the exercise of this prerogative, it is our duty to beep in mind the object of the Compensation Act, and to liberally construe the terms of that act so as to accomplish that humane and obvious object, which is to protect industrial employees and their families against the consequences of injuries received by those employees in the course of their employment.

The fact that appellee was-injured while and as a result of traveling upon a highway is immaterial, although discussed at length by appellee in his brief. The hazard of highway travel was but an incident of appellee’s employment, and, if he was injured as a result of such hazard, his right to compensation would not be thereby affected or impaired, provided he was at the time engaged upon an errand in behalf of his employer and within the scope of his employment.

So’ does the record warrant the assumption, which must be indulged in support of the jury finding and of the judgment rendered, that appellee was returning to Orange Grove with the ultimate purpose of delivering the trucks he had previously sold, and which he had already brought to Orange Grove for that purpose. By this process we again approach the controlling question, Did the act of ap-pellee in stepping aside from the course of his employment to engage for an hour in the purely personal pastime of dancing, and the immediate purpose of going direct from the dance to his home for a night’s rest, and the happening of the accident while putting that immediate purpose into effect so interrupt the course and break the continuity of his’ employment as to change his status and take him out of the protection of the Compensation Act? We have concluded that the question must be answered in the affirmative.

We think it is true that, up to the time he completed his interview with the second prospect at the place of the dance, at 11 o’clock of the night in question, appellee was within the course of his employment. Wé are inclined to go further and express the unnecessary conclusion that, had appellee resumed' the actual course of his employment after indulging in an hour’s personal enjoyment of' the dance, and had been thereafter injured’ while still in the course of that employmént, his injury would have been compensable, and the hour’s personal indulgence, would have-been but an immaterial incident of his errand of duty, since the accident did not occur during that hour.

But the incident of stepping out of the line of duty to indulge in the dance becomes important as the starting point of his next movement. Eor, by stepping aside for an hour to indulge in a personal pleasure wholly disconnected from his employment, he broke the continuity of that employment, and he had not gotten back within the course of that employment at the time of the accident which resulted in his injury. If he had carried out his obvious intention, he would have gone directly from the dance to¡ his home, there to spend the night in rest, and was- in fact on-his way home for that obvious purpose when he received the injury. It was not his intention to resume the duties of his employment until the next day and until after he had gone home and rested there through the night, and, if he had carried out his intention, he would not have gotten back into the course of his employment until he had begun the actual work of delivery of the trucks the next morning. That was an unfinished task, which he had left early in the evening, and he could not be held to have resumed it until he returned to" possession of the trucks thereafter. He left that task to perform the other of interviewing the two prospects at Skidmore. He completed the latter task at 11 o’clock that night, went from that task to the purely personal pleasures of the dance, and was on his way to the purely personal pleasure of a niglit’s rest when he was injured, with no intention of resuming his work until the next morning. He sustained the injury during this hiatus, while going from one personal pleasure to another. We hold that the injury was not sustained by him while engaged in the course, or within the scope of his employment. While no Texas case directly in point has come to our notice, the case of American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949, in which writ of error was refused by our Supreme Court, upholds the principle stated, and discusses other authorities at length. Appellant cites appropriate authorities from other states, such as Covey-Ballard Motor Co. v. Industrial Commission, 64 Utah, 1, 227 P. 1028; Northwestern Pac. R. Co. v. Industrial Accident Commission, 174 Cal. 297, 163 P. 1000, L. R. A. 1918A, 286; Case of Hewitt, 225 Mass. 1, 113 N. E. 572, L. R. A. 1917B, 249; Haas v. Kansas City Light & Power Co., 109 Kan. 197, 198 P. 174; and London Guarantee & Accident Co. v. Industrial Accident Commission, 190 Cal. 587, 213 P. 977. Appellee cites the cases of Fidelity & Casualty Co. of New York v. Kansas City Rys. Co., 207 Mo. App. 137, 231 S. W. 278; Tutie v. Kennedy (Mo. App.) 272 S. W. 117; Rachels v. Pepoon, 5 N. J. Misc. Rep. 122, 135 A. 684; Royal Indemnity Ct. v. Hogan (Tex. Civ. App.) 4 S.W.(2d) 93; Ramsey v. Leahey, 102 N. J. Law, 513, 134 A. 91; Schroeder v. Industrial Commission, 169 Wis, 567, 173 N. W. 328. We do not understand the decisions in those cases to set up a different rule from that adopted here, however; the facts in those cases distinguish them from this case.

The jury’s finding upon the controlling issue in this case amounted to an erroneous conclusion of law upon the undisputed facts, and should have been set aside by the trial court in response to appellant’s motion for new trial.

The judgment is accordingly reversed, and the cause remanded.


author: COBBS, J. SMITH, J.

text:
    FREEMAN et al. v. YOUNG.
    (No. 8056.)
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1928.
    Rehearing Granted Feb. 6, 1929.
    Rehearing Denied March 6, 1929.
    Spencer, Rogers & Lewis and W. B. Tea-garden, all of San Antonio, for appellants.
    Thomson, Dilworth & Marshall, of San Antonio, for appellee.
   COBBS, J.

John Young, appellee, sued J. D. Freeman and City National Bank of San Antonio, appellants, for $500 deposited as liquidated damages should Freeman fail to purchase the land offered by appellee. Young was to furnish Freeman an abstract of title showing good and merchantable title in Young, and the title was to be passed upon by Freeman’s attorney.

The money was deposited in appellant’s said bank. Freeman failed to carry out the trade, whereupon Young brought this suit to recover the money deposited in escrow.

W. B. Teagarden, an attorney and friend of appellant, made the deposit required in the bank, with the understanding that it should remain up for 10 days only, and if the trade was not consummated within that time the money was to be withdrawn and returned to him.

The trade fell through through no fault of Freeman, because Freeman was not purchasing the land for himself but for certain purchasers in Iowa who were to pay for the land and take title in the name of the purchaser, and because of the delay of Young in timely furnishing the title for the Iowa parties, who were nonresidents of the state, they declined to longer delay after the 10 days’ time in waiting in San Antonio and returned home; and thereafter declined to .carry out the trade.

We think the facts are fully covered by the findings of the trial court, which are as follows:

“I find that upon the trial of this cause the following facts were established, to-wit:
“1. That on or about January 11th, 1923, the plaintiff, Jno. Young, and the defendant, J. D. Freeman, entered into a contract and agreement wherein plaintiff agreed to sell to the defendant Freeman certain lands situated in Brewster Oounty, Texas, in which agreement the defendant Freeman agreed to place the sum of Five Hundred Dollars ($500.00') cash in escrow with the defendant Oity National Bank of San Antonio, Texas, to be delivered to the plaintiff Young in the event that the defendant Freeman failed or refused to perform his agreement and pay for the land upon the plaintiff tendering abstracts of title, showing good merchantable title to the lands, and a warranty deed conveying the lands to defendant, Young;
“2. That the defendant Freeman caused a ■deposit of Five Hundred Dollars ($500.00) to be made with the defendant Bank, which sum was accepted by the bank, but under certain terms and conditions that were different from the terms relating to such deposit as contained in the contract between Young and Freeman ; that the defendant Bank notified Young that Freeman had made the deposit under the agreement between Young and Freeman and that Young acted upon such information and proceeded to comply with his agreement with Freeman.
“3. That Young tendered abstracts of title and warranty deeds to Freeman both of which were accepted by Freeman under his contract with Young.
“4. That Freeman failed and refused to comply with his agreement with Young and failed to pay for the lands as contracted for and wholly made default in his contract with Young.
“5. That intervener, W. B. Teagarden, actually made the escrow deposit with the defendant Oity National Bank of San Antonio, Texas, for the benefit of the defendant Freeman, but that before making, such deposit, the said Teagarden notified an officer of the Bank that he, Teagarden, was personally making sueh deposit for the benefit of Freeman and that as a condition of the escrow deposit plaintiff, John Young, was to comply with his contract with Freeman within ten days from and after January 30th, 1923; and that at the time of making such deposit, Teagarden again notified the defendant bank in writing, such writing being attached to the deposit, that as a condition of the deposit, Young was to comply within ten days from the date of such deposit, to-wit, January 30, 1923, and that the bank accepted sueh deposit with such conditions attached.
“6. That the defendant Bank failed to notify Young of the ten day provision in the escrow deposit and that Young had no notice of the same or of any of the interest of the intervener Teagarden’s interest in the matter;
“7. That Young failed to furnish the abstracts of title and deed within ten days after the making of said escrow deposit of January 30th, 1923.
“Conclusions of Law.
“The court concludes as a matter of law:
“1. That plaintiff Young is entitled to judgment against the defendant Freeman and the defendant Bank for the sum of Five Hundred Dollars as liquidated damages under his contract with Freeman and the Bank.
“2. That Intervener W. B. Teagarden is entitled to judgment against the Defendant, City National Bank of San Antonio, Texas, in the sum of Five Hundred Dollars ($500.00) under his agreement with the Bank at the time that the escrow deposit was made.
“3. Both plaintiff and intervener, by their respective attorneys, having in open court having waived their claims against the Bank for interest on said sums and having waived their claim for the costs of court, judgment for interest and costs were not allowed as against the Bank.”

We adopt the findings of fact as being supported by the evidence, but do not adopt the conclusions of the court.

While this suit was brought by and for the use and benefit of appellee, the evidence shows that the title to the land belonged to him and to Sartwell, who was not a party to the suit, and no explanation was made why he was not joined herein as a partner.

We do not think the court erred in granting a judgment in favor of intervener for the amount of the deposit of $500, because he advanced the money and it was his money that was deposited. But we can perceive of nc theory under the facts that would justify any judgment whatever in favor of appellee.

The judgment in favor of W. B. Teagarden will be affirmed, and the judgment in favor of appellee will be reversed and here rendered in favor of the bank against appellee, with all costs of this suit.

On Motion for Rehearing.

SMITH, J.

We have concluded that Teagarden is entitled to recover the deposit.. Freeman was wholly unable to advance the amount of the deposit, or any part of it, and Teagarden, as a matter purely of accommodation, advanced it for him, by giving his note to the bank for the amount required. Freeman had no credit with the bank, but Tea-garden had. So, the latter consented to the use of his credit, and the bank set aside the fund as the required deposit. Teagarden advanced the money upon the express condition that the proposed sellers of the land furnish to the bank abstracts showing good title and proper conveyance of the land to the proposed purchaser, within 10 days. In lending his credit he had the undoubted -right to protect it 'with any condition he saw fit to impose, and he exercised this right by imposing the conditions named. The transaction thus took the form of a special contract between the bank, and Teagarden, whereby the bank became obligated to return the deposit to Tea-garden in the event of the failure of Young to deposit the required abstracts and deeds with the bank within 10 days; on the other hand, 'had Young furnished the deeds and abstracts within that period, Teagarden’s right to the return of the deposit would have ceased, and the bank would have become obligated to pay over the deposit to Young. It being conceded that Young did not comply with these conditions within the stipulated period, Teagar-den’s right to the return of the deposit, was fixed.

It did not matter to Teagarden or the bank that Freeman was under obligation to Young to deposit the escrow fund subject to appropriation to Young at any time within 30 days upon his compliance with his obligation to furnish the deeds within that period; for no matter how closely related were the transactions, the Teagarden-Bank contract was special in its nature, and the rights and obligations of the parties thereto were enforceable according to its terms, without reference to the Ffeeman-Young contracts, in so far as the provisions of the two contracts were in conflict. The period of the option provided for in the two contracts conflicted, as a matter of course, and while those provisions coordinated and were enforceable as one for the pferiod of 10 days, they diverged at the expiration of 10 days, when the rights of the respective parties became enforceable according only to the terms of their respective contracts. Hence, when the 10-day period lapsed without event, Teagarden’s right to withdraw the deposit was fixed, and Young could no longer assert an interest in it.

Moreover, it appears that Young was promptly advised of the deposit made, and of its purposes, and that he equally as promptly repudiated it, refusing to proceed with the negotiations, thereby cutting himself off from any rights thereunder. He never did tender performance to Freeman, in accordance with his obligations, and never earned the deposit in controversy. As a matter of fact, he was acting more as an agent of Sartwell than for himself, while Freeman was acting' as an agent of Watson, the proposed purchaser. Both principals appear to have been so exacting that their agents could not satisfy them, and neither of them, nor their agents, have shown themselves entitled to any relief in this case.

We conclude that our original opinion and judgment correctly disposed of the appeal, and that opinion will be reinstated. Accordingly, the judgment entered herein on December 22, 1928, will be set aside, the opinion thereon withdrawn, and judgment will- now be entered that appellee W. B. Teagarden do have and recover of the City National Bank the sum of $500 deposited with it by the said Teagarden; and, further, that appellee Young recover nothing in this suit against either of said parties, W. B. Teagarden, the City National Bank, or J. D. Freeman. It is further ordered that appellee John Young pay all costs of this and the trial court.


author: JACKSON, J.

text:
    SMITH v. CHIPLEY.
    (No. 3213.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1929.

      See also (Tex. Civ. App.) 2S7 S. W. 156.
    Lockhart, Garrard & Brown, of Lubbock, for appellant.
    Bean & Klett, of Lubbock, for appellee.
   JACKSON, J.

This suit was instituted by H. D. Chipley, plaintiff, on October 28, 1926, in the district court of Lubbock county, Tex., against Morton J. Smith, the defendant, to recover the sum of $3,884, with interest thereon at the rate of 8 per cent, per annum from January 1, 1923.

On May 24, 1927, the plaintiff filed his amended original petition, in which he alleges ;

That about November 22, 1922, he was the owner of an interest under a certain contract theretofore made between himself and Minnie Slaughter Veal and her husband relative to the sale of 19,617.28 acres of land, situated in Cochran county, Tex., together with certain interests, moneys, commissions, and notes, and two automobiles. That on said date the plaintiff and the defendant entered into a contract in writing whereby the plaintiff sold his interest in said contract and all rights thereunder and in the property above described, to the defendant, who promised and agreed in said contract to pay plaintiff for such interest by transferring to him $4,700 worth of vendor’s lien notes, deeding him a certain lot in the town of Lubbock, Tex., and by the execution by the defendant of his promissory note in the sum of $3,000, payable to plaintiff. That in addition thereto, the defendant agreed and promised to pay the plaintiff the further sum of $5,300 by delivering to him that amount in vendor’s lien notes received by the defendant under the contract between the plaintiff and Mrs. Minnie Slaughter Veal on the east one-half of said 19,617.28 acres of land. That it was further agreed that in the event defendant should be unable to deliver notes on January 1, 1923, amounting to said $5,300, he would execute and deliver to the plaintiff on that date his personal note for said sum, due on or before two years from its date, bearing interest at the rate of 8 per cent, per annum, and furnish plaintiff satisfactory security for the payment of such personal note. That it was further agreed that on December 31, 1922, the plaintiff would purchase all unsold tracts on the east half of said 19,617.28 acres of land and execute notes therefor to Mrs. Veal, and that the defendant would pay thereon to Mrs. Veal the $2 per acre on such tracts of land so purchased by the plaintiff, and the defendant would be entitled to credit on said $5,300 for the cash so advanced. That the defendant also agreed to assume all outstanding debts and accounts theretofore incurred in the sale of the Veal lands.

That the plaintiff has complied with all the obligations imposed upon him by the terms of said contract, and the defendant has heretofore transferred to plaintiff $4,700 worth of vendor’s lien notes and deeded to’ plaintiff the lot in the town of Lubbock, and made and paid the $3,000 note, all as provided in the contract, and made the cash payment on the lands bought by plaintiff under the Veal contract, .amounting to $1,416, for which the defendant is entitled to credit, but has failed and refused and still fails and refuses to pay the plaintiff the balance on said $5,300, which is $3,884, and has failed and refused to deliver to plaintiff vendor’s .lien notes for said sum, and failed and refused to execute his personal note and furnish security therefor, as provided' in said contract.

That about January 1, 1923, a settlement was made between the defendant Smith and Mrs. Veal, and she delivered to him vendor’s lien notes of purchasers on tracts of land out of the east portion of the 19,617.28 acres, in excess of the amount of' $5,309, but the defendant at said time, and at all times thereafter, has refused to deliver said notes or any part thereof to plaintiff, has refused^ to execute his personal note to plaintiff, and refused to pay plaintiff said sum of $3,884, though plaintiff has often requested the defendant to either deliver the notes or to execute his personal note or pay said balance.

Plaintiff alleges: That if he is mistaken in his allegations that Mrs. Veal delivered to defendant on or about January 1, 1923, notes in excess of $5,300, then he alleges that the settlement was made between defendant and Mrs. Veal about January 1,1923, that the defendant received notes in excess of the amount of $5,300, but instead of delivering said notes to plaintiff, made other disposition thereof by placing them as collateral with other parties for his indvidual debts, but that some time thereafter, the exact date being unknown to the plaintiff, but previous to the filing .of this suit, all notes against the east part of the Veal tract of land that the defendant was entitled to were released and delivered to him, and he had full dominion and control thereof, and has had for quite a while before the institution of this suit, but notwithstanding this fact, and although plaintiff has frequently requested him to make delivery of said notes or pay the balance on the $5,300 indebtedness due him, or to execute and deliver to plaintiff his personal note with security for said amount, with interest as in the contract provided, the defendant has failed and refused to- do so. That the sum due plaintiff by the defendant ’was $5,300, payable- in $5,300 worth of notes which were of the market value of $5,300, and that by reason of the premises and the breach of said contract by defendant, plaintiff has been damaged in the sum of $5,300, less the cash advanced, which indebtedness was to bear interest at the rate of 8 per cent, per annum. Plaintiff prays for judgment for the sum of $3,S84, with interest on said sum from January 1, 1923, at the rate of 8 per cent, per annum, for 10 peí-cent. attorney’s fees, for costs of suit, and all such further and other relief as he may be entitled to, in law and in equity.

The defendant answered by general demurrer, special exceptions, general denial, and pleaded: ■ 1

That on or about September 3, 1921, Minnie Slaughter Veal and her husband, G. T. Veal, entered into a written contract with the plaintiff, H. D. Chipley, by which she agreed to sell to the plaintiff or his vendees the 19,617.28 acres of land in Cochran county, Tex. That said body of land was to be subdivided into tracts or labors. That the consideration Mrs. Veal was to receive for .the east half of said land was- $15 per acre and for the west half $10 per acre. That $2 of the consideration was to be paid in cash on or before December 31, 1922, and the balance to be evidenced by 10 equal vendor's-lien notes against each tract, payable to Mrs. Veal from one to ten years from December 31, 1922. That the plaintiff herein, H. D. Chip-ley, was authorized to sell the east half of said tract of land at $20 per acre, $1 of which he was allowed for expenses, $2 of which was to be paid to Mrs. Veal as the $2 cash, and $17 to be evidenced by 10 equal vendor’s lien notes, payable to Mrs. Veal. That the entire-body of 19,617.28 acres of land should be purchased by Chipley or sold to his vendees under the terms and conditions of the contract prior to December 31, 1922, in which event Mrs. Veal agreed to transfer, without recourse on her, to the said Chipley out of the vendor’s lien notes, the $4 per acre received in notes for the land in excess of the $13 per acre due Mrs. Veal in notes for the tracts in the east half of said body of land. That in, the event the plaintiff herein failed to sell or purchase all of said 19,617.28 acres of land by the 31st day of December, 1922, then he should not be entitled to any interest in the notes or any part of the land sold and should forfeit all rights under the contract.

That after the execution and delivery of the Veal-C'hipley contract, the plaintiff transferred to defendant an interest, and to othei-parties certain interests, and on the 22d day of November, 1922, after the plaintiff and defendant and the others associated with them had sold all of the tracts in the east half of said 19,617.28 acres except approximately 16 labors, the plaintiff and the defendant entered into the contract upon which the plaintiff sues in this case, whch transferred to the defendant the plaintiff’s remaining undivided one-fourth interest in the Veal-Chip-ley contract for the considerations named' therein, and provided that, among the other considerations stated, the defendant should pay the plaintiff $5,300 in vendor’s lien notes received under the Veal-Chipley contract for tracts of land in the east half of the 19,617.-28 acres, and that in the event the defendant was unable to deliver said notes on January 1, 1923, he should execute a note for $5,300, payable to plaintiff on or before two years after date with interest at the rate-of 8 per cent, per annum, and furnish satisfactory security for the payment of such note, which should be paid with vendor’s lien-notes on the tracts of land in the east part of said 19,617.28 acres. That if plaintiff had ever had any cause of action against the defendant, it was for the recovery of notes aggregating the sum of $5,300. That the defendant has had possession of said notes at all times since the 1st day of January, 1923, and that plaintiff’s - cause of action, if any he had, accrued on said date, and is therefore barred by the Two-Tear Statute of Dim-itations (Rev. St. 1925, art. 5526). That the-suit was filed on the 28th day of October,., 1926, and in the original petition the plain--tifE sued for a money demand based on allegations that tbe defendant bad breached bis contract of November 22, 1022. That on tbe 24th day of May, 1927, tbe plaintiff filed bis ' amended petition and changed bis cause ofo action from a breach of contract to one of conversion, and said amended petition was filed more than four years after plaintiff’s cause of action accrued, and is therefore barred by tbe Pour-Year Statute of Limitations (Rev. St. 1925, art. 5527).

That under tbe contract of November 22, 1922, tbe plaintiff was to purchase all of tbe unsold tracts in the east half'Of said 19,617.-28 acres of land if not sold by December 31, 1922, and execute, as stipulated in tbe Veal-Chipley contract, the notes to Mrs. Veal. That tbe defendant was to pay tbe cash consideration of $2 per acre on such unsold land and to receive credit therefor on tbe $5,300 obligation due tbe plaintiff under his contract with the defendant. That plaintiff later suggested that be would rather not sign tbe notes for such unsold tracts and become personally liable thereon, but that if tbe defendant would take a deed to four of said tracts and pay the cash consideration, plaintiff would take a deed to four of said tracts and furnish other parties who would take a deed to the remaining unsold tracts and execute the notes therefor, and that plaintiff would allow the defendant a credit on said $5,300 obligation for all the cash paid out by defendant on the purchase of each of said tracts. That the defendant immediately accepted deeds to 4 labors of said land, paid the $2 cash consideration, which he would not have done but for the promise of the plaintiff to give him credit for said $2 per acre on the $5,300 obligation. That the plaintiff took a deed to 4 labors of said land, and the defendant paid the cash consideration of $2 per acre thereon, and was thereby entitled to a credit for the $2 per acre on said ⅞ labors on the $5,300 obligation. That prior to the 22d day of November, A. D. 1922, tbe plaintiff and defendant had contracted to sell to Everett Arnn, H. M. Reeves, and J. H. Davis, each 1 labor of said lands. That about the 22d of November, 1922, or shortly thereafter, plaintiff and defendant learned that neither Arnn, Reeves, nor Davis would consummate their contracts to purchase said labors on account of financial inability to pay the cash consideration required, a'nd the plaintiff requested the defendant to pay such cash consideration for said parties and agreed to allow him a credit of $2 per acre on said tracts on the $5,309 obligation, and that relying on such agreement, the defendant did pay to Mrs. Veal the $2 per acre cash on each of said labors. That the defendant produced H. E. Schwab and J. E. McSpadden, each of whom agreed to accept deeds to two tracts and sign the notes therefor, and the defendant agreed to pay and -did pay the cash consideration of $2 per acre on said four tracts of land, and the plaintiff agreed to allow the defendant a credit for said amount on said $5,300 obligation. That the money so advanced by the defendant for the $2 cash consideration on the 15 labors of the unsold land exceeded the amount of the $5,300 obligation. That by reason of the money so advanced by the defendant, he was not due plaintiff any sum of money on the $5,300 obligation, and for the purpose of showing that defendant did not owe the plaintiff any sum or sums of money by reason of said contract, the plaintiff, on December 30, 1922, executed and' delivered to the defendant an instrument in writing wherein he transferred and assigned to the defendant all the interest of the plaintiff in and to the Veal-Chipley contract and acknowledged the full and complete payment of all consideration due the plaintiff for the sale and transfer of his interest therein to the defendant, and that by reason of such instrument the contract between the plaintiff and the defendant was completely extinghished, released, and satisfied, and the plaintiff should be and is in equity estopped to claim any right, title, or interest in the Veal-Ohipley contract or by virtue of the contract between plaintiff and defendant.

The plaintiff, in reply to the defendant’s answer, filed a general demurrer and general denial.

On special issues submitted by the court, the jury found that the plaintiff, subsequent to November 22, 1922, agreed that the defendant should be credited on the $5,300 obligation with the $2 per acre on each of the labors of land deeded respectively to H. M. Reeves and J. H. Davis and for the 2 labors deeded H. E. Schwab, and the 2 labors deeded to J. F. McSpadden, but that the plaintiff did not agree that the defendant should have a credit on said obligation for the $2 per acre on the labor deeded to Everett Arnn nor on the 4 labors deeded to the defendant, Morton J. Smith.

On these findings, judgment was rendered by the court in favor of the plaintiff against the defendant for the sum of $1,771 principal, with interest thereon from January 1, 1923, at the rate of 8 per cent, per annum, or a total sum .of $2,585, with interest thereon from the date of the judgment, October 10, 1928, at the rate of 8 per cent per annum.

From this judgment the defendant prosecutes this appeal.

The appellant assigns as error the action of the trial court in overruling his special exception to appellee’s amended'petition because the contract of December 30, 1922, if not a complete discharge of the contract of date November 22, 1922, was in any event a novation thereof, and as the contract of December 30th imposed no obligation on appellant to pay any sum of money to appellee, the suit was based on a parol agreement, and not having been filed until more than two years after January 1, 1923, the date the cause of action accrued under such oral agreement, the appellee’s suit was barred by the statute of two years’ limitation.

The appellee in his petition neither mentioned nor referred to the contract signed by him bearing date of December Su, 1922. Nor did he allege any parol agreement made between him and appellant on that or any other date as a basis for his recovery. Hence, the contention of appellant, based on his exception to appellee’s pleading that the contract of December 30th was in any event a novation and appellee’s cause of action, if any he had, rested in an oral agreement and was barred by the statute of two years’ limitation on October 28, 1926, when the suit was filed, is not tenable.

“Novation is effected by the substitution of a new obligation, between the same parties, with the intention to extinguish the old one.” Wasson v. Davis, 34 Tex. 159; Meador v. Rudolph (Tex. Civ. App.) 218 S. W. 521.

“A novation which does not clearly appear will not be presumed. * ⅜ ⅜ The burden of pleading and proof rests upon him who would rely on a novation.” Hix v. Tomlinson (Tex. Civ. App.) 200 S. W. 897; Darby v. Farmers’ State Bank of Burkburnett (Tex. Civ. App.) 253 S. W. 341; Hall et al. v. First State Bank of Hawley (Tex. Civ. App.) 4 S. W.(2d) 253.

Appellee’s petition discloses no intention to substitute a new obligation between the parties, either by written or oral agreement, and the novation claimed does not appear in such petition and could not be presumed by the court.

The appellant assigns as error the action of the trial court in overruling his special exception to the appellee’s amended petition, because the allegations in said amended petition set up a new and different cause of action from the one pleaded in the original petition, and the amended petition having been filed more than four years after appellee’s cause of action accrued January 1, 1923, the same was barred by the Four-Year Statute of Limitation.

The appellee, in his original petition, set up the contract between him and appellant, of date November 22, 1922; pleaded the terms and conditions thereof, the performance by him of the obligations imposed upon him by said contract, and that appellant had complied with the contract to the extent of paying certain items of the consideration recited therein, bub had failed and refused to deliver to appellee vendor’s lien notes as stipulated, although he had received such notes from Mrs. Veal; that he had also failed and refused to execute to appellee his promissory note, and failed and refused to pay appellee the balance of $3,S84 due appellee on the $5,-300 obligation under the contract of November 22, 1922 — all of which constituted a breach by appellant of his contract of November 22, 1922. He prayed for judgment for said balance, which was the sum of $3,-884, with interest, attorney’s fees, etc., and for such other and further relief as he was entitled to in law or in equity.

Under these allegations, the appellant, having failed to deliver the vendor’s lien notes and having refused to execute the personal note, committed a breach of the contract, and appellee was authorized to sue for the unpaid balance of the consideration and recover a money judgment therefor.

“The defendants were bound to execute their note, payable in nine months, for the price stipulated.. When they refused to execute the note they committed a breach of the contract, and gave to plaintiff the right to sue immediately for the price.” Young et al. v. Dalton et al., 83 Tex. 497, 18 S. W. 819. Empire Gas & Fuel Co. v. Pendar (Tex. Civ. App.) 244 S. W. 184.

Appellee’s amended petition did not allege a new cause of action, as our courts make no distinction between a suit for debt and a suit for damages based on a written contract or its breach.

“The more reasonable construction, and that which best harmonizes with the general provisions and policy of the statute, we think, is, to consider the terms ‘actions of debt, grounded on any contract in writing,’ as including all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction between debt and damages.” Robinson v. Varnell, 16 Tex. 382; Elder, etc., Co. v. St. Louis S. W. R. Co., 105 Tex. 628, 154 S. W. 975; Williamson & Co. v. T. & P. R. Co., 106 Tex. 294, 166 S. W. 692.

The contract was dated November 22, 1922, and the original petition was filed on October 28, 1926, within less than four years after January 1, 1923, the date the contract was to be performed, and was therefore not barred by the statute of four years’ limitation at the time the suit was instituted, under the authorities, supra.

Appellant’s contention that the original petition was subject to a general demurrer ■ and the filing thereof was not sufficient to stop the running of the statute of limitation cannot be sustained. Flatow, Riley & Co. v. Campbell Co. (Tex. Com. App.) 280 S. W. 517.

The appellant challenges as error the action of the trial court in refusing to instruct a verdict in his behalf, because the written contract of November 22, 1922, and the written contract of December 30, 1922, were between the same parties; related to the same subject-matter; the December contract was unambiguous; was not attacked by appellee for fraud, accident, or mistake;' was pleaded by appellant as a full and final settlement and discharge of the November contract, and must be so construed; and the court should have given his peremptory instruction.

The contract .of November 22d, among other things, provides: “That said H. D. Chip-ley, for and in consideration of the sum of One' ($1.00) and no/100 Dollars and other valuable considerations paid by Morton J. Smith, has this date and by these presents does transfer, assign and convey unto Morton J. Smith, all his rights, titles, and .interest in and under the contract made by H. D. Chipley with Minnie Slaughter Yeal and husband, G. T. Yeal, dated September 3, 1921, covering approximately 19,617.28 acres of land in Cochran County, Texas, together with all interest, moneys, commissions and notes earned upon said contract,’.’ etc.

After reciting a number of items of consideration which are not involved, for such transfer, it provides: That Morton J. Smith is to pay Chipley an additional sum of $5,300 in vendor’s lien notes received by Smith under the Veal-Chipley contract, out of tracts of land in the east half of the entire body of land. That if Smith is unable to deliver the notes on January 1, 1923, he shall execute a note for $5,300, payable to Chipley on or before two years after its date with 8 per cent, interest, with satisfactory security, which note shall be paid with vendor’s lien notes against tracts of land in the east half of the 19,617.28 acres of land. That the unsold tracts are to be purchased by Chipley, if any not sold before December 31, 1922, and that he should execute the notes against each tract to Mrs. Yeal, but that Morton J. Smith is to pay the cash consideration of $2 per acre on each tract of unsold land purchased by Chipley, and Smith was entitled to a credit on the $5,300 obligation for all sums paid by him as the cash consideration on said unsold lands.

The appellant alleged, among other things: That after the execution of the November contract, the appellee was unwilling to accept deeds to the unsold tracts and become personally liable on the vendor’s lien notes, and agreed that if, the appellant would take 4 of said labors of land and pay the cash of $2 per acre thereon, appellee would take 4 labors of land and secure other parties to take the remainder of the unsold labors, on all of which appellant was to pay the $2 per acre and receive credit on the $5,800 obligation. That under this arrangement, the appellant paid the cash consideration on 15 labors of land, 4 to himself, 4 to appellee, and 7 to purchasers furnished by appellee, and thereby discharged the $5,300 obligation, and that for the purpose of evidencing a settlement, release, and discharge from such obligation, he and appellee entered into the contract of December 30, 1922, which reads:

“That I, H. D. Chipley, for and in consideration of the sum of $1.00 and other valuable considerations to me in hand paid by Morton J. Smith, the receipt of which is hereby acknowledged,- have this day and by these presents do transfer, assign and convey unto the said Morton J. Smith all my interest in and to the contract made by me with Minnie Slaughter Veal and husband, G. T. Veal, for the purchase of approximately 19,617.28 acres of land situated in Cochran County, Texas, which contract is dated September 3, 1921, and recorded in the deed records of Cochran County, Texas.
“To have and to hold unto the said Morton J. Smith, his heirs and assigns forever.”

There is no controversy oyer the terms and ■ provisions of the Veal-Chipley contract of date September 3; 1921.

It will be .observed that the appellant in his answer alleged that he discharged the $5,-300 obligation due appellee by paying, to Mrs. Veal the $2 per acre cash required on the 15 unsold labors of land that were to be deeded to appellee; that for the purpose of showing a full satisfaction of the $5,300 and the other considerations stated in the contract of November 22d, the contract of December 30th was executed. These allegations were put in issue by appellee’s general denial, and testimony was offered by both parties on said issues, and the court submitted such issues to the jury, some of which were found for appellant and some of which were found for appel-lee. The issues were submitted by the court in his general charge, but were requested by the appellant in the special issues he presented to the court.

Under the parol evidence rule, the consideration for the contract of December 30th could be shown by parol evidence without pleading fraud, accident, ,or mistake.

“A recital in a written instrument as to the payment of the consideration is merely in the nature of a receipt and may be contradicted.” 22 C. J. § 1562; Morris v. Davis (Tex. Civ. App.) 3 S.W.(2d) 109; Lanier v. Foust, 81 Tex. 186, 16 S. W. 994.
“As a general rule, the recitals of a written instrument as to the consideration are not conclusive and it is always competent to inquire into the consideration and show by parol or other extrinsic evidence what the real consideration was. * * * The principle admitting parol evidence to vary the consideration expressed in a written instrument does not rest upon the ground of fraud, accident or mistake and hence it is not necessary, in order to form a basis for the admission of such evidence, that the pleading should contain any allegations thereof.” 22 O. J. 1555.

The principles thus announced is the law in Texas. Taylor v. Merrill, 64 Tex. 491; Johnson v. Elmen et al., 94 Tex. 168, 59 S. W. 253, 52 D. K. A. 162, 86 Am. St. Rep. 845; Whitehead v. Weldon et al. (Tex. Civ. App.) 264 S. W. 958; Callaway v. Albin, 114 Tex. 5, 261 S. W. 372; Grogan v. Lea (Tex. Civ. App.) 269 S. W. 1070.

The contract of December 30th recites: “For and in consideration of the sum of $1.00 and other valuable considerations.”

In Kleck et ux. v. Kleck (Tex. Civ. App.) 246 S. W. 720, the court says: “Such clauses are put in deeds for some purpose. Certainly not put there to allow proof to explain a consideration, for that is always admissible, but rather to show that there were other considerations that entered in the transaction than those mentioned.”

Under the pleadings of appellant and the contract of December 30th, parol evidence was admissible to vary or explain the consideration recited in the contract of December 30th, and appellee was not required to plead accident, fraud, or mistake, and his testimony tends to show that said contract was executed for the purpose of enabling the appellant to settle with Mrs. Veal under the terms of the Veal-Chipley contract and receive the vendor’s lien notes he was entitled to thereunder and deliver to appellant the vendor’s lien notes called for in the contract of November 22d, and not for the purposes of evidencing a full and complete discharge of the considerations , recited in said contract. The court correctly refused the peremptory instruction.

Appellant, by proper assignment, challenges as error the action of the trial court in charging the Jury that: “The burden of proof by a preponderance of the evidence is on the defendant to establish the affirmative of the above issues and sub-paragraphs thereof.”

The allegations in appellant’s answer are, in substance: That by oral agreement with appellee, made subsequent to November 22, 1922, the appellant was to advance the $2 per acre cash to Mrs. Veal on all the unsold labors of land, whether deeded to appellee or to appellant or some purchaser furnished by appellee. That for such, payments, he was to receive credit on the $5,300 obligation due ap-pellee. That he paid to Mrs. Veal the $2 per acre cash required on the unsold labors, and thereby paid the $5,300 obligation due appellee, and that for the purposes of releasing and discharging appellant from said obligation, the contract of December 30th was executed as a conveyance and a release. As we construe appellant’s answer, it was a plea of payment. Eule v. Dorn, 41 Tex. Civ. App. 520, 92 S. W. 828. The charge complained of required the appellant to discharge the burden of proof by a preponderance of the evidence as to the agreement he alleged he had made with appellee subsequent to November 22d, and as to the payments of the cash consideration to Mrs. Veal on the unsold labors of land.

It has been held that: “The burden of proof does not shift from the plaintiff to the defendant, but always remains with him, and when plaintiff has made out his case it devolves upon the defendant to rebut such case, but this burden does not go to the extent of requiring the defendant to establish a rebuttal by a preponderance of evidence.” St. L. & S. F. Ry. Co. v. Hooser, 44 Tex. Civ. App. 229, 97 S. W. 708, and authorities cited. See, also, Fort Worth & D. C. R. Co. v Amason (Tex. Civ. App.) 260 S. W. 204; Thompson v. Shifflett (Tex. Civ. App.) 267 S. W. 1030. But if there is any question about the application of the doctrine announced above to the error assigned in this case, we think that the holding of the Commission of Appeals, approved by the Supreme Court in Baker v. Pierce et al. (Tex. Com. App) 259 S. W. 921, is conclusive. In the last case supra, plaintiff sued on a vendor’s lien note. The defendant pleaded' payment and also the execution of a release to him by the plaintiff. In reply to defendant’s answer, plaintiff alleged that the release of the note was a mutual mistake. The court charged the jury that the burden of proof was on the defendant to show payment and, unless he had done so by a preponderance of the evidence, to find for the plaintiff. After citing and quoting from numerous authorities, the Commission of Appeals says r “When the plaintiff and defendant had rested' in chief, if no other evidence had been offered, the defendant would have been entitled' to an instructed verdict in his favor, the release of the note being prima facie proof of its payment; it then became necessary for the plaintiff to introduce proof of his plea that the release was made through mutual mistake, and, the case having reached that stage where it became necessary for the plaintiff to introduce proof explaining defendant’s-prima facie proof of payment, we think that the burden of proof was not then upon defendant to show payment, and that plaintiff’s special charge No. I should not have been given.”

In the case at bar, the appellant, with other testimony of payment, introduced the contract of December 30, 1922, in which the ap-pellee purports to convey all of his interest in the Veal-Chipley contract for the sum of $1 and other valuable considerations to him in hand paid by the appellant, the receipt of which is acknowledged by the appellee. Under the holding in Baker v. Pierce and under the pleadings in this case, if appellee had introduced the contract of November 22d and appellant had introduced the contract of December 30th, and both parties rested, the appellant would have been entitled to a directed verdict in his behalf. The .other testimony offered by appellant and the other facts and circumstances revealed by the record in this case only emphasize the application of the rule announced in Baker v. Pierce, supra, to the ease at bar, and this assignment is sustained.

The appellant presents as error the action of the trial court in allowing the appellee to recover 8 per cent, interest on the amount ,of the judgment rendered in his favor. The Veal-Chipley contract stipulates that the vendor’s lien notes which are to be executed to Mrs. Veal are to bear interest at the rate of 7 per cent, per annum. The contract of November 22d provided that appellee was to be paid out .of vendor’s lien notes received under the Veal-Chipley contract, and that if they were not delivered on January 1, 1923, he was to receive a personal note from appellant bearing interest at the rate of 8 per cent, per annum, whieh was likewise to be paid out of vendor’s lien notes he received on the Veal-Chipley contract.

Appellee is not suing ,on the promissory note, nor upon the vendor’s lien notes, but is suing for a money demand against appellant for his failure to deliver vendor’s lien notes which would have drawn but 7 per cent, interest, and his failure to execute a promissory note which would have borne 8 per cent, interest. There is nothing in the contract that provides what rate of interest shall be paid in the event appellant fails to comply •with his contract and appellee is forced to his action for damages. In our opinion, the appellee is not entitled to recover under this record more than 6 per cent, interest per an-num, the legal rate.

We deem it unnecessary1 to discuss the other assignments of error, as they, in all probability, will not occur on another trial.

The judgment is reversed, and the cause remanded.