author: STOKES, Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. MERTEL.
    No. 5244.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1940.
    Rehearing Denied May 27, 1940.

      Will R. Saunders, of Dallas,' and Simpson, Dorenfield & Fullingim, of Amarillo, for appellant.
    Clayton Heare, of Shamrock, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellee.
   STOKES, Justice.

This case is before us upon a motion of appellee to dismiss the appeal upon the ground that the appeal bond was not filed within the time prescribed by law and this court, therefore, does not have jurisdiction of the appeal. The record shows that the case was tried at the November term, 1939, of the district court of Wheeler County. The trial began on December 18, 1939, and judgment was rendered by the court upon the verdict of the jury December 29, 1939. Under the provisions of Art 199, Sec. 31, R.C.S.1925, Vernon’s Ann.Civ.St. art. 199, subd. 31, the terms of the district court in Wheeler County are limited to 7 weeks each, and the term at which this case was tried came to an end under the provisions of that statute on December 30, 1939, the day following the date upon which the judgment was rendered. Appellant filed its motion for a new trial on the day the judgment was rendered and the trial court, on that day, entered an order extending the term until February 15, 1940, reciting in the order that such extension was necessary in order that appellant may prepare and file its amended motion for a new trial and that the court may be provided with sufficient time and opportunity to pass upon the same. The amended motion for a new trial was filed February 13, 1940, and on the same day it was overruled by the court and appellant duly excepted and gave notice of appeal. Appellant filed its supersedeas bond on appeal March 12, 1940, which was 28 days after notice of appeal was given and 26 days after the expiration of the term as extended by order of the court.

The motion of appellee is based upon the provisions of Art. 2253, R.C.S.1925, Vernon’s Ann.Civ.St. art. 2253, to the effect that an appeal may be taken during the term at which final judgment is rendered by the appellant giving notice of appeal within 2 days after final judgment or the overruling of his motion for a new trial, and by his filing with the clerk an appeal bond or affidavit in lieu thereof within 20 days after the expiration of the term. It is further provided in the article that if the term of court may by law continue more than 8 weeks the bond or affidavit shall be filed within 20 days after notice of appeal is given if the party taking the appeal resides in the county, and within 30 days if he resides out of the county. The record shows that appellant is a non-resident of the county, but it is the contention of appellee that, inasmuch as the term of the court could not by law continue more than 8 weeks, in order to perfect its appeal and clothe this court with jurisdiction, it was necessary that the appeal bond be filed within 20 days after the expiration of the term, which expiration could not have been later than February 15, 1940.

Appellant contends that inasmuch as the term of court was duly and legally extended to February 15, 1940, by proper order entered by the district judge, the term at which the case was tried continued more than 8 weeks and, it being a non-resident of Wheeler County, it had, under the law, 30 days after giving notice of appeal in which to file its appeal or sup.ersedeas bond. The question to be decided, therefore, is whether or not an order entered by the judge of a district court at a term which may, under the provisions of the statute, continue not more than 8 weeks, extending such term beyond 8 weeks, has the effect of changing the time in which an appeal bond may be filed to 30 days after giving notice of appeal where the appellant is a non-resident of the county, as provided by the latter portion of Art. 2253, from its flat provision of 20 days in which all appellants must file such'bonds in appeals from cases tried in terms of court limited to 8 weeks by the statute.

Two other issues are presented by the motion and appellant’s reply thereto, but this is the controlling question in the case and it will not be necessary for us to discuss the remaining issues.

Art. 1923, R.C.S.1925, provides that when a district court shall be in the midst of a trial of a cause and the time for the expiration of the term arrives, the presiding judge shall have power to extend the term until the conclusion of such pending trial. If the term is so extended, no term of the court in any other county shall fail because thereof, but the term of court in such other county may he opened and held as provided by law when the district judge fails to appear at the opening of court. Upon a casual reading of the. statute it may seem that, under its provisions, the district judge is clothed with power to extend the term generally as to all pending business that may appear upon the docket, but the courts have held in many cases that such was not the purpose and intention of the Legislature. It has consistently been held by our courts in all cases in which the matter has been in issue that the extension of the term authorized by the statute is only for the purpose of disposing of the case then on trial. It was said by the Court of Civil Appeals of the First District in the case of Jefferson v. Williams, 286 S.W. 614, 615: “We think this article of the statute should be construed as only authorizing the extension of the term for the purpose of disposing of the case on trial, and so far as any other business of the court is concerned, the term must be regarded as ended at the time fixed by law for its termination.”

In the case of Hamilton v. Empire Gas & Fuel Co., Tex.Com.App., 110 S.W.2d 561, 565, the court said: “Article 1923 has been construed as authorizing only the extension of the term for the conclusion of the pending trial of the particular cause in and on account of which the order is made and not the extension of the term generally. Jefferson v. Williams (Tex.Civ.App.) 286 S.W. 614; Clayton v. Jobe (Tex.Civ.App.) 71 S.W.2d 911 (application for writ of error refused); Morse v. Hoover (Tex.Civ.App.) 105 S.W.2d 682, 685.”

A reading of the cited cases will show that there has been no variation in the interpretation by our courts of the purpose and intention of the Legislature in enacting the statute nor in the meaning of its provisions. It is well settled, therefore, that under the provisions of this statute a district judge does not have authority to extend the term of his court beyond the day for its termination by law except for the purpose of completing the trial of a case in which he is then engaged.

Art. 2253, R.C.S., 1925, divides the trial courts, in respect to the matter of perfecting appeals from their judgments, into two classifications, first, those courts whose terms may by law, that is, by provision of the statute, continue for a term of 8 weeks or less and, secondly, those courts whose terms may by law, that is, by statute, continue more than 8 weeks. The provision in respect to both classifications as to the time in which appeal bonds must be filed is the same in respect to residents of the county where the court is situated, but in the second classification, litigants in such courts who are non-residents of the county are given 30 days after notice of appeal is given in which to file their appeal bonds. The privilege extended to a non-resident litigant by the statute applies only to those courts whose terms “may by law” continue more than 8 weeks. Appellant contends that the law clothes the trial judge with authority to extend courts in the first classification so that they may continue more than 8 weeks and that, therefore, the term of the district court of Wheeler County in which this case was tried was by law continued more than 8 weeks, which had the legal effect of removing this particular term from the first to the second classification. We cannot agree with appellant in this contention. If such were the law, the district judge of any court in the state could, by order duly entered, remove any term of his court from the first classification to the second and thereby render nugatory the provisions of the statute with reference to filing appeal bonds in courts whose terms are limited to 8 weeks. The provision of the statute to the effect that, if the term of court may .by law continue more than 8 weeks and the appellant resides out of the county where the case is tried, he may have 30 days after giving notice of appeal in which to file his appeal bond refers and applies to those courts only whose terms are by the provisions of the statute permitted to continue more that 8 weeks. When an order is entered by the district judge extending the term in order to dispose of a pending trial it refers only to the case then on trial and to those acts and procedure that are necessary for that purpose. As to all other matters the term ends when the time arrives at which it terminates under the provisions of the statute.

Appellant not having filed its bond within 20 days after the adjournment of the term of court as extended by the order of the district judge, its subsequent filing came too late and this court does not, under the law, have jurisdiction of this appeal. The motion of appellee to dismiss the same is, therefore, granted and the appeal dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    FORT WORTH & D. C. RY. CO. v. MILLS.
    No. 5150.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1940.
    Rehearing Denied May 20, 1940.

      J. B. Clark, of Shamrock, and Luther Hudson and Thompson & Barwise, all of Fort Worth, for appellant.
    Marion Reynolds, of Shamrock, and • Cummings & Johnson, of Fort Worth, for appellee.
   STOKES, Justice.

This case was instituted by appellee, W. A. Mills, to recover damages for personal injuries to his wife which he alleged she received in a fall from the steps of a platform attached to appellant’s shipping pens at Magic City in Wheeler County. Appellee was an employee of appellant in the capacity of section foreman and, appellant having no section house or regular established quarters on the section for use of the foreman and his family and the section hands, furnished to appellee two outfit cars which consisted of ordinary box cars that had been remodeled and equipped for residential purposes. One of these cars was used as a living room and the other as kitchen and dining room in one end and sleeping quarters in the other end. In connection with these cars appellant also had another outfit car which was used by other employees, presumably the section hands, in which they maintained-batching quarters where they did their own cooking. Under ordinary circumstances the only means of ingress and egress to these cars were flights of perpendicular steps or short ladders at the doors which were attached to the cars. It being difficult for Mrs. Mills, who was an unusually heavy woman, to climb up and down these, perpendicular steps, appellee requested appellant’s train crew to locate the outfit or boarding cars alongside the platform at the shipping pens. The floor of the platform was practically on a level with the floors of the cars and at the east end of the platform was a flight of five ordinary steps of convenient rise and incline for ascent and descent. It was principally for the purpose of having access to this more convenient means of egress and ingress to the outfit cars being occupied by appellee and his wife that they requested the train crew to “spot” or locate the outfit cars alongside the platform.

The cars had been so located and ap-pellee had been using them in this manner for about nine months immediately preceding Mrs. Mills’ injury. On May 10, 1938, Mrs. Mills, desiring to leave the outfit car and embark on a legitimate mission, stepped out on the shipping pen platform, approached the flight of steps at the east end thereof, and attempted to descend to the ground. As she descended from the platform to the first step, the step tilted or turned under her foot or in some manner came loose and she was precipitated down the steps to the ground, receiving injuries described in the petition.

The case was submitted to a jury upon special issues and upon the verdict returned in answer thereto, judgment was rendered in favor of appellee in the sum of $2,000. Appellant filed a motion for a new trial which was overruled and it gave notice of appeal which it has perfected, and it presents the case in this court upon ten propositions of law under which it contends the judgment should be reversed and rendered in its favor or remanded for another trial.

The case seems to have been tried upon the theory that appellee was the tenant of appellant in occupying the outfit cars and that the duties and liabilities of the parties are governed by the principles of law applicable to the relationship of landlord and tenant. Appellant contends, first, that the platform and steps not being a part of the outfit cars and the cars being placed alongside of the platform for the convenience of appellee, he was a licensee in respect thereto; that no duty devolved upon appellant to maintain them in safe condition and the court, therefore, erred in refusing a peremptory instruction and in overruling its motion for a judgment upon the verdict. Secondly, that at most Mrs. Mills was no more than an invitee in her use of the steps and appellant owed her no duty in respect thereto further than to protect her from hidden or latent dangers known to it.

Other propositions are presented in which appellant assigns error in the submission of certain special issues and elements of damage but the two contentions we have mentioned present the controlling questions and we do not deem it necessary to discuss the others.

A licensee is said to be a person whose entrance upon or use of the premises of another is permitted by the owner under such circumstances as that he is not a trespasser but is without any express or implied invitation. He, therefore, occupies a position lying somewhere between that of a trespasser and that of one who has been invited upon the premises by the owner or one having authority to extend an invitation to enter upon the same. He is on the premises by sufferance and not by virtue of any business or contractual relation with, or any enticement, allurement, or inducement to enter being held out to him by, the owner or occupant, but merely in his own interest or for his own purposes, benefits, convenience or pleasure. Hicks v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 212 S.W. 840; Mack v. Houston, E. & W. T. Ry. Co., Tex.Civ.App., 134 S.W. 846.

We do not agree with appellant that appellee was upon the stockpen platform of appellant merely by sufferance nor that he was there without any contractual relations, merely in his own interest and for his own purposes and benefit. By “spotting” or placing the outfit cars alongside the platform appellant consented to the use by appellee of the platform in the same manner as it consented for the use by him of the outfit cars which he was using as a place of residence while discharging the duties incident to his employment by appellant. It is true the evidence shows and the jury found that the outfit cars were placed alongside the platform at the request of appellee but it is quite .evident from the record that appellant’s employees in charge of the train and who placed the cars at the platform, as well as the other agents and servants of appellant who were in charge of such matters, knew the purpose for which appellee desired the cars placed at the platform and were familiar with, and acquiesced in, the use to which appellee intended to, and did, subject the platform. That use was in connection with and as a part of the premises utilized by him as a place of abode while he was employed at that point by appellant. This, we think, removes the relationship from that of a mere licensee and presents a situation entirely different from that which the law contemplates in designating the relationship that must exist in order to create the status of a licensee.

Nor do we agree with appellant in its contention that appellee was a mere invitee upon the platform and steps connected with the shipping pens. This relationship is created when one is upon the premises of another under circumstances rendering his presence of mutual aid to both. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 8 Am.St.Rep. 611. It was said in the case of Kruse v. Houston & T. C. Ry. Co., Tex.Civ.App., 253 S.W. 623, 625: “In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.”

While it is true that the use of the platform and steps in a sense inured to the benefit of the Railway Company, it cannot be said to be that kind of use' which is contemplated when speaking of the relationship of the owner of the premises and an invitee thereon. Broadly speaking, that which was convenient for its employees and which made them more comfortable in their living -quarters inured, to some extent at least, to the benefit of the Railway Company, but the same could be said of the outfit cars in which they slept at night and in which they maintained their place of residence. In our opinion, the case is not governed by the rules which control these relationships and these .contentions of appellant are untenable.

Conceding that the relationship existing between appellant and appellee was that of landlord and tenant, as contended by appellee, in our opinion they were not entitled to a judgment against appellant upon the facts revealed by the record. It is not alleged nor contended by appellee that appellant agreed to make any repairs to, or improvements upon, the platform and steps, nor that it agreed to maintain them in the condition in which they were at the time appellee appropriated them some nine months before Mrs. Mills was injured. It is not alleged nor even suggested that appellant was guilty of any fraud or concealment by failure to disclose hidden defects of which it had any knowledge, either at the time appellee appropriated the steps and platform, or afterwards. It is well-established law in this state, and most, if not all, of the other states in the Union, that in the absence of a statute or an agreement by the landlord to make improvements or repairs to the premises and in the absence of fraud or concealment of the landlord by his failure to disclose hidden defects of which he has knowledge, the tenant takes the risk of the safety of the premises and the landlord is not liable to him nor to anyone entering under his title or by his invitation for injuries received on account of the unsafe condition of the premises. Churchwell v. Pure Oil Pipe Line Co., Tex.Civ.App., 289 S.W. 196; Perez v. Raybaud, 76 Tex. 105, 13 S.W. 177, 7 L.R.A. 620; Peticolas v. Thomas, 9 Tex.Civ.App. 442, 29 S.W. 166; Miller & Bro. v. Nigro, Tex.Civ.App., 230 S.W. 511; Archibald v. Fidelity Title & Trust Co., Tex.Civ.App., 296 S.W. 680; Ross v. Haner, Tex.Com.App., 258 S.W. 1036, 1037.

In the case last cited Judge Bishop, speaking for the Commission of Appeals, said: “The mere relation of -landlord and tenant creates no obligation on the part of the landlord to repair or keep in repair the leased premises. The tenant takes the premises as-he finds them.”

This court, speaking through Chief Justice Huff, in the case of Miller & Bro. v. Nigro, supra, made the same holding in the following language [230 S.W. 513]: “There is no implied warranty upon the part of the landlords that the premises are fit for the purposes for which they are leased. If the tenants desire to have the landlords make changes or repairs, and to hold them responsible for failure, the tenants should have had such covenant incorporated in the agreement to lease.”

In the case of Perez v. Raybaud, supra, our Supreme Court, quoting and approving the doctrine as contained in Thompson on Negligence, said [76 Tex. 105, 13 S.W. 178, 7 L.R.A. 620] : “In the absence of fraud or deceit, there is no implied covenant that the demised premises are fit for occupation, or Jor the particular use which the tenant intends to make of them. * * * Therefore the tenant has no remedy against the landlord for suffering the premises to get out of repair * * * and this rule extends to servants and others entering under the tenant’s title.”

Appellee, in his brief, indicates that he is in accord with our holding in this respect, but he contends that a portion of the leased premises, that -is, a portion of the platform and steps, was used by appellant for other purposes and that other tenants of appellant appropriated the same. He asserts, therefore, that these diverted uses, acquiesced in by appellant, takes this case out of the general rule and places upon the landlord the duty to keep the premises in repair. It is quite true that where a landlord leases a portion of a building and retains another portion of it, where it is necessary to keep in a good state of repair the portion retained in order that the tenant may occupy the portion leased by him, a different rule applies and the duty devolves upon the landlord to maintain in a reasonably safe state of repair that portion of the building which controls the comfort of his tenant. To illustrate: If the landlord retains control of the upper floor of a two-story building he is charged with the duty of exercising ordinary care to maintain the roof and drain pipes in such condition that merchandise of a tenant of a lower floor will not be damaged by water leakage through the roof. Archibald v. Fidelity Title & Trust Co., supra. This contention of appellee is based upon his assertion that the employees of appellant who were maintaining living quarters or “batching” in the third outfit car used the steps along with appellee and, also, that, as shown by the record, on occasions when it was necessary for appellant to use the shipping pens for the purpose of loading livestock for shipment, the outfit cars being occupied by appellee were removed from the platform and steps and appellant took complete charge and control thereof during the' process of loading the livestock. In support of this contention appellee cites us to the case of Archibald v. Fidelity Title & Trust Co., supra, and other similar cases. The testimony does not support appellee in this contention. Mrs. Mills testified that her husband had an office and desk in the outfit cars occupied by them and that the other employees, on occasions, had business with him there. She said, however, that in going to his desk these employees usually came up the other side of the car and climbed up the steps into the door next to the main line which she described as being the perpendicular steps and not the steps connected with the platform. She said that once in a while when they came around the car or came in from the garage they would come up the steps. The only other persons whom, she mentioned as using the steps were those whom she designated as “company that we had,” by which she evidently meant friends or neighbors who paid them occasional friendly visits. This is not sufficient to remove the case from the general rule. Certainly it does not place the platform and steps from which Mrs. Mills fell in the category of an apartment stairway or the lower story of a building, the upper story of which is leased to others or retained in the possession of the landlord. In fact, according to Mrs Mills’ testimony, it was only an occasional use of the steps that was made by the other employees and it is not shown nor claimed that even they had any specific permission from appellant to do so. Furthermore, when they did use them it was on the occasions when they had business with appellee and desired to see him in his office or at his desk.

As to the contention of appellee that the occasional use of the shipping pen platform and steps by appellant for the purpose of loading shipments of cattle when appellee’s outfit cars would be pushed down the track during the process of loading, we do not think it could, with any sound reasoning, be said that this was sufficient to -remove the case from the general rule and place it within the rule we have mentioned or bring it under the doctrine announced in the case of Archibald v. Fidelity Title & Trust Co.-, supra. It may be true that, during the process of loading the livestock, which we must know was of short duration, appellant did have complete charge of the loading pens and the platform and steps, but there is nothing in the record which indicates that during the time appellee and his family were using them and while the outfit cars were standing alongside of them, appellee did not have complete possession of them for the purposes for which they were being used by him. These conditions were by no means the same as those which prevail in case of the common stairway of an apartment house in which numerous tenants have apartments, or a two-story building where the tenant occupies the lower floor and the upper floor is retained in the possession of the landlord. In neither of these latter cases does the tenant have access to the stairway in the one or the roof in the other for the purpose of making repairs. They are not in his possession for that purpose and the law, therefore, places upon the landlord the duty of keeping them in a reasonable state of repair. Appellee and his wife evidently understood that they had access to, and possession of, the steps for the purpose of making necessary repairs because Mrs. Mills testified that if, before her fall, she had observed the unsafe condition of the step from which she fell, she would have procured a hammer’ and nails and repaired it. And appellee testified that, after his wife’s injury, he repaired the step by securely nailing it to the carriage which supported the flight of steps.

In view of the well-established rules governing the relationship of landlord and tenant and the holdings of the courts in the cases we have cited, we are forced to the conclusion that these contentions of appellee cannot be sustained and that he was not entitled to a judgment on the theory contended for by him.

As we interpret the allegations and proof presented by the record the relationship existing between appellant and ap-pellee throughout was that of employer and employee. Even upon this theory, however, appellee was not entitled to recover. The allegations and all the testimony are to the effect that appellee was employed by appellant as section foreman; that appellant did not have a residence or section house upon the section of road under Mills’ jurisdiction, and in lieu thereof it furnished him the outfit cars for occupancy as living quarters by himself and his family. There is no suggestion that any contract of lease or rental existed between the parties nor that Mills paid any specific amount as rental for the outfit cars, platform or steps. Both the allegations and proof are to the effect that these were furnished him in connection with his employment and in lieu of the ordinary section house where such employees and their families ordinarily reside. It was not alleged nor shown that any deduction was made from Mills’ salary as consideration for the use of the outfit cars nor that he was paid any less salary than he would have been paid if he had furnished his own living quarters, but even if such had been alleged and proved, it would not have been sufficient to establish the relationship of landlord and tenant. Appellee's right to the possession of the outfit cars was not superior to, nor different from, his contract of employment. The compensation for their use was in the' labor performed on. the section of railroad under Mills’ jurisdiction. When the labor ceased the right to occupy the outfit cars came to an end and in no sense can this be construed to be a relationship of landlord and tenant. The premises were not demised to appellee for any term nor did he have any rights therein that were not connected with and indeed a part of the contract of employment. Bowman v. Bradley, 151 Pa. 351, 24 A. 1062, 17 L.R.A. 213; Trustees of East Norway Lake Norwegian, etc., Church v. Froislie et al., 37 Minn. 447, 35 N.W. 260; Presby v. Benjamin, 169 N.Y. 377, 62 N.E. 430, 57 L.R.A. 317; School Dist. v. Batsche, 106 Mich. 330, 64 N.W. 196, 29 L.R.A. 576.

If it should be said that this holding brings the case within the rule which requires the employer to furnish and maintain for the employee a safe place in which to work, the answer would be found in the jury’s finding in answer to special issue No. 19 wherein they found that the condition of the top step from which Mrs. Mills fell was open, obvious, and apparent to anyone using the steps. This cannot be construed otherwise than to mean that the employee, appellee here, stood upon an equal footing with the appellant, his employer, in respect to knowledge of the danger in connection with the use of the steps. The rule is well established that if the master and servant stand upon an equal footing with respect to such matters and an accident results therefrom, the master is exonerated. The employee assumes the risk of those dangers -which are within his actual knowledge and those of which he would learn by the exercise of such care as would be observed by a person of ordinary prudence. The record contains pictures of the steps which pictures were exhibited to the jury and which admittedly reflect the condition of the steps at the time of the injury. The finding of the jury to the effect that the condition of the top step was open and obvious to anyone using the steps is amply supported by the testimony. In fact, it was not controverted by any witness. The conclusion is inescapable, therefore, that appellee was not entitled to recover under the rules which govern the relationship of master and servant. Bonnet v. Galveston, H. & S. A. Ry. Co., 89 Tex. 272, 33 S.W. 334; Texas & P. Ry. Co. v. French, 86 Tex. 96, 23 S.W. 642; Kirby Lbr. Co. v. Hardy, Tex.Civ.App., 196 S.W. 211; Trinity & B. V. Ry. Co. v. Perdue, 45 Tex.Civ.App. 659, 101 S.W. 485.

From what we have said it is obvious that, in our opinion, the court erred in overruling appellant’s motion for a peremptory instruction and its motion for a judgment upon the verdict of the jury. The case seems to have been fully developed and we conceive no beneficial purpose that could be served by remanding it for another trial.

The judgment of the court below will be reversed and judgment here rendered that appellee take nothing by his suit


author: WILLIAMS, Justice.

text:
    JOHNSON v. JOHNSON.
    No. 5632.
    Court of Civil Appeals of Texas. Texarkana.
    May 10, 1940.
    Rehearing Denied May 16, 1940.
    E. A. Martin and Richard Nicolds, both of Longview, for appellant.
    Harvey P. Shead, of Longview, for ap-pellee.
   WILLIAMS, Justice.

Upon jury findings, judgment was entered which denied a divorce to Jennie Gatlin Johnson, plaintiff below.

Plaintiff sought a new trial on alleged grounds of newly discovered evidence. According to the testimony heard on. the amended motion for a new trial, one Dr. Khoury would have testified that defendant’s arm had been broken by a blow from a club instead of from a gunshot wound as claimed by defendant. It is without dispute that his arm was broken either by a blow with an axe handle wielded by plaintiff or from a pistol shot fired by her. We fail to see where this testimony of Dr. Khoury would effect the issue as to whether defendant was guilty of cruel treatment. This physician treated defendant for his injuries at the Gregg Memorial Hospital. Plaintiff visited defendant in this hospital; saw that he was bandaged; washed his face; and carried him clean clothes. This physician was available as a witness on the day of the trial. Diligence is not shown, for on the slightest effort upon inquiry she could have ascertained the name of the physician and the character of the wounds. 31 T.J. pp. 98, 100, 105; Griffith v. Gohlman Lester & Co., Tex.Civ.App., 253 S.W. 591.

On the same day judgment was entered the court also entered an order, after hearing, which relieved defendant from paying plaintiff further alimony during the pendency of this appeal. The provision of Article 4637, R.C.S. of 1925, is conditional. The financial status of both litigants had been fully developed in the trial. This evidence does not indicate that the trial court abused his discretion.

The judgment is affirmed.


author: LOONEY, Justice.

text:
    BOUND et al. v. DILLARD et al.
    No. 12873.
    Court of Civil Appeals of Texas. Dallas.
    April 13, 1940.
    Rehearing Denied May 11, 1940.
    Dallas A. Blankenship and James L. Mc-Nees, both of Dallas, for appellants.
    McEntire & Shank, Walace Hawkins, Ross Madole, and Storey, Sanders, Sher-rill & Armstrong, all of Dallas, Nelson Jones, FI. W. Varner, and H. R. Wilson, all of Houston, and J. B. Hatchitt, of Wichita Falls, for appellees.
   LOONEY, Justice.

Mrs. Laura A. Bound et al., appellants, sued A. R. Dillard et al., appellees, in trespass to try title to recover 840 acres of land located in Henderson County, Texas. The appellees plead not guilty, the statutes of three and five year limitation, and improvements in good faith. Vernon’s Ann.Civ.St. arts. 5507, 5509. Several parties intervened, seeking to establish and recover certain royalty interests in the land. The case was tried without a jury, resulting in judgment for appellees, from which this appeal was prosecuted; however, the interveners did not appeal, hence the judgment as to them is final. No request for findings and conclusions was made, and none were filed.

The material facts, stated chronologically, are these: On December 14, 1916, the National Bank of Commerce, Dallas, Texas, the common source of title, conveyed to E. G. Bound 1,288 acres of land in Henderson County, Texas, including the 840 acres involved in this controversy, retaining an express lien on the land to secure the payment of a $6,000 purchase money note.

On March 28, 1922, the National Bank of Commerce assigned, transferred, and conveyed to the Federal Land Bank of Houston the note just mentioned (upon which there remained unpaid $4,997), together with the lien securing same, also conveyed the vendor’s “superior title” in and to the land. On same day, Ed G. Bound and wife, Laura A. Bound, executed a deed of trust conveying the 840 acres to M. H. Gossett, Trustee, to secure the Land Bank, its successors and assigns, in the payment of a $6,000 amortize note, payable in thirty-six semiannual installments, reciting that, the note included the balance of $4,997 of the original purchase money note, and provided that the Land Bank, or its assigns, were subrogated to all the rights, liens, remedies, equities, superior title and benefits held, owned, and possessed at any time by any owner or holder of the original vendor’s lien note, further providing that, should default occur in the payment of the semi-annual installments, the Federal Land Bank, or its assigns, should have the right to sell the property conveyed, in satisfaction of such defaulted payment, without declaring the whole debt due, and conferred upon the assignee of any vendor’s lien note the power to request the Trustee, or his successors as therein provided for, to sell the property, and further provided that, the Trustee, or any substitute trustee, was empowered to appoint by written instrument, an attorney in fact to act as trustee for him and in his name, place and stead; and that all acts done by said attorney in fact shall be as valid, lawful and binding as if done by said Trustee, substitute, or successor, in person; and further provided that, in case of any sale, all prerequisites should be presumed to have been performed and that all facts stated, or recitals in the conveyance by the Trustee should be taken as prima facie evidence that such facts were true.

Ed G. Bound died testate on February 22, 1923. After the payment of all debts, he bequeathed to his wife, Laura A. Bound, during her natural life, all his property, both real and personal, of which he died possessed, with full power and authority to sell any and all of said property as she might desire, with the remainder to his children in equal shares, and appointed his wife independent executrix, without bond.

On April 26, 1932, the Land Bank assigned and transferred to the Athens National Farm Loan Association an overdue and unpaid installment note (one of the series above mentioned) for $210, same being the nineteenth installment to mature on the note given by Ed G. Bound and wife to the Land Bank, as before recited, together with the lien on the land securing payment of the same, subordinated, however, to the lien existing in favor of the Land Bank, as to the remaining unpaid installment of the original $6,000 note, also assigned and conveyed to the Athens National Farm Loan Association, “ * * all of the right, title and interest owned or held by it (the Land Bank) in said land (the 840 acres) by virtue of the installment herein conveyed and assigned and by virtue of the deed of trust securing the payment thereof, in so far as said deed of trust secures the installment hereby transferred, but no further.”

On April 30, 1932, in pursuance of a provision of the deed of trust, M. H. Gossett, Trustee, duly appointed. J. P. Pickens attorney in fact, to act in foreclosure proceedings, who, after due advertisement, on June 7, 1932, sold the land to the Athens National Farm Loan Association, in consideration of a cash bid of $10, and subject to the balance due the Land Bank as hereinbefore recited, for the payment of which an express lien was retained on the land. The deed conveying the land to the Athens National Farm Loan Association, by Gos-sett, Trustee, acting by and through his attorney in fact, Pickens, contained a short summary of the requisite predicate facts, showing that, in making the sale, the provisions of the deed of trust were complied with.

On October 25, 1932, the Athens National Farm Loan Association conveyed the 840 acres of land to T. L. Deen, who, on May 15, 1934, conveyed same to A. R. Dillard, and on October 2, 1937, Dillard paid the Land Bank the balance remaining unpaid of the original note for $6,000, given by Bound and wifé, and took a release from the Bank of the lien, containing the following exception: “There is excepted from this release that portion of the above note represented by the January 1, 1932, installment thereon (the installment note transferred to the Athens National Farm Loan Association), and the deed of trust lien securing said installment, which were transferred and assigned to the Athens National Farm Loan Association on April 26, 1932.”

On April 26, 1937, and on May 24, 1937, respectively, agreements were entered into by and between A. R. Dillard and Fred E. Haynes, whereby oil and gas leases were to be given by Dillard to Haynes on the 840 acres, upon the drilling of certain test wells on the land. The first of the wells was completed November 15, 1937, at a cost of approximately $53,000, and the second was completed on the 28th day of February, 1938, at a cost of approximately $16,000. The several oil companies and individuals, appellees herein, claim, as assignees under Haynes, parts of the oil and gas lease.

On May 28, 1938, after two oil wells had been drilled in on the land under the contracts above mentioned, and approximately six years after the foreclosure proceedings, Mrs. Laura A. Bound, individually and as executrix of the will of her deceased husband, Ed G. Bound, and the other appellants (devisees under the will) instituted this suit, to recover title to the 840 acres of land, including the two oil wells, on the ground that the foreclosure proceedings in 1932, under the deed of trust, were void. The judgment of the court being adverse, they appealed, and have assigned but one error, that is, that the grant of power to M. H. Gossett, Trustee; to appoint an attorney in fact, was revoked by the death of Ed G. Bound, hence the foreclosure sale and the conveyance thereunder were, and are, null and void.

As will be observed, they do not contend that the power of sale conferred upon Gossett, Trustee, was not coupled with an interest and did not survive the death of Mr. Bound, the grantor, but do contend that the authority conferred upon the Trustee to appoint an attorney in fact was but a naked power, not coupled with an interest, therefore, was revoked by the death of the grantor.

The foreclosure having taken place more than four years after the death of Mr. Bound, while his estate was being administered by his wife as independent executrix under the will, we do not think it can be correctly said that the sale in any sense interfered with the orderly processes of administration. See Fischer v. Britton, 125 Tex. 505, 83 S.W.2d 305 (by the Commission; Smith v. San Antonio, etc., Bank, Tex.Civ.App., 130 S.W.2d 1070, writ refused. Nor do we think that, simply because the sale was made by an attorney in fact, acting for the Trustee, its validity can be called in question. See Casas v. Federal Land Bank, Tex.Civ.App., 106 S.W.2d 1107. Thus, we reach the question insisted upon by appellants, that is, that the power of the Trustee to appoint an attorney in fact was revoked by the death of Mr. Bound, the grantor, and for that reason alone, the sale and deed executed thereunder are null and void.

The case of Natali v. Witthaus, Tex.Com.App., 135 S.W.2d 969, 976, involved the validity of a sale by an attorney in fact, acting for the trustee, under the provisions of a trust deed identical with those involved here and under substantially similar facts. The court held that the death of the grantor did not revoke the power of sale given in the trust deed, therefore, sustained the validity of the sale made by an attorney in fact, appointed by the trustee long after the death of the grantor, saying, in part, that, “Barth made the sale and executed the trustee’s deed as attorney in fact for M. H. Gos-sett, trustee. Gossett was not present at the sale. The argument made by defendants in error is that the deed of trust invests the trustee with discretion in making the sale and that the trustee cannot delegate such discretion to another. The position thus taken would be correct, had the deed of trust not given the trustee the power to delegate his authority. The express terms of the deed of trust above quoted confer upon the trustee authority to appoint an attorney in fact to act as trustee and declare that all acts done by such attorney in fact shall be valid and binding as if done by the trustee in person. The attorney in fact, therefore, was duly authorized to conduct the sale and to execute the deed to the purchaser. Hess v. Dean & Kesterson, 66 Tex. 663, 2 S.W. 727.”

The above seems to be the latest expression of the Supreme Court on the subject under consideration, and is so pertinent and decisive as not to require the citation of additional authorities, nor do we deem is-necessary to lengthen the opinion by a comment upon the authorities cited by the appellants. We therefore overrule their assignment and related propositions. The rule is well settled that, where the record fails to disclose findings of fact and conclusions of law, the judgment will be sustained if either defense urged is supported by evidence. This rule is based upon the presumption that the court found in favor of appellees upon such issue. This rule was tersely stated by Judge Gaines, in Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 268, 22 Am.St.Rep. 27, as follows: “At all events, there being no conclusions of fact and law found in the record, if the evidence is sufficient to support the judgment upon any defense presented in the case it is to be presumed that the court found in favor of the defendants upon that issue.”

Invoking the rule, appellees insist that, regardless of the validity of the foreclosure under the deed of trust, the judgment should be sustained on additional grounds; among others, under the doctrine of rescission, also under their plea of five year limitation.

As heretofore shown, the conveyance by the National Bank of Commerce to Ed G. Bound retained an express lien on the land to secure the unpaid purchase money. The conveyance, being executory- in nature, the superior title to the land remained in the bank, as security against the loss of both purchase money and land. This title is considered superior in the sense that the purchaser may not assert his title as against the vendor, or those claiming under him, unless the purchase money is paid, and enables the vendor, or his successors in interest, to rescind the sale and recover or repossess the land; and if the vendor, or his successors in interest, obtains possession of the premises after default, he may not be dispossessed by the purchaser or anyone claiming under him. See 43 Tex.Jur., sec. 141, pp. 232-234, and the authorities cited.

It is further disclosed that the superior title to the land, and all rights incident thereto, passed by mesne conveyances p.nd transfers from the vendor Bank to A. R. Dillard, who paid the Land Bank the balance remaining of the $6,000 note given by Bound and wife in renewal and extension of the original purchase money note given the vendor Bank when the land was purchased. In view of these facts, we are of opinion that Dillard succeeded and became sub-rogated to all the rights of the original vendor, including the right, on default being made in the payment of the purchase money, to rescind the contract and repossess the land. After purchasing the property, as hereinbefore stated, Dillard took possession and exercised rights and authority that pertain alone to ownership; contracted for and caused test wells to be sunk, prospecting for oil and gas, under which two producing oil wells were drilled, and thereafter leased the land to the several oil companies and individuals, appellees herein.

So, if it be conceded, as contended by appellants, that the foreclosure proceedings were and are absolutely void, yet possession of the land by the Athens National Farm Loan Association, and those claiming under it, the drilling of test wells, and leasing the land for oil and gas development, constituted conduct of a nature, not susceptible of any ‘explanation other than that of the assertion of ownership, and, in our opinion, was tantamount in law to a rescission of the contract of sale. The following authorities, we think, fully sustain this conclusion: Benn v. Security Realty, etc., Co., Tex.Civ.App., 54 S.W.2d 146, writ refused; Bunn v. City of Laredo, 245 S.W. 426 (by the Commission of Appeals); Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721 (by the Supreme Court); Campdera v. Reed, Tex.Civ.App., 131 S.W.2d 297, writ refused.

Appellees also contend that, regardless of whether Pickens, as attorney in fact, possessed power to conduct the foreclosure proceedings, the deed executed by him to the Athens National Farm Loan Association, purported to convey the land described, was regular upon its faca, therefore met all the requirements of the five year statute of limitation.

The defense of five year statute of limitation urged by appellees was combated by appellants on the sole ground that it was based upon a void conveyance. We do not think so. The deed executed by Pickens, as attorney in fact, is fair upon its face, purports to convey land, and, tested by its own recitals, is perfectly valid, hence, meets all requires ments of the statute. Chief Justice Phillips, speaking for the Supreme Court, in Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, used the following pertinent language: “To support limitation under the five years statute, it is not necessary that the deed, under which the claim is made, convey any title. The grantor may be wholly barren of any vestige of title; the deed may therefore pass no semblance of title; yet, if it describes and purports to convey the land and tested by. itself is upon its face a good deed, it meets the requirement. Wofford v. McKinna, 23 Tex. 36, 76 Am.Dec. 53; Schleicher v. Gatlin, 85 Tex. 270, 20 S.W. 120; Harris v. Wells, 85 Tex. 312, 20 S.W. 68.” We conclude, therefore, that, even if it could be correctly said that the prior death of Mr. Bound revoked the authority of Gossett, Trustee, to appoint Pickens, yet such vice (if a vice) not being apparent, but extraneous, the conveyance is none the less a “deed” within the meaning of the statute.

The land involved being community property, the validity of the foreclosure, as to Mrs. Bound’s undivided one-half interest, cannot be questioned. However, being of opinion that the trustee’s sale was valid and passed title, we think the judgment of the court below should be affirmed. But, if this conclusion is deemed erroneous, for the reasons heretofore stated, we are of opinion that the judgment should be affirmed under the doctrine of rescission, also under the defense of five year limitation.

Affirmed.


author: PRICE, Chief Justice.

text:
    ADAMS v. CHADWICK.
    No. 3918.
    Court of Civil Appeals of Texas. El Paso.
    April 18, 1940.

      Upton, Upton & Baker, of San Angelo, for appellant.
    R. G. Hughes, of San Angelo, and L. W. Elliott, of Sonora, for appellee.
   PRICE, Chief Justice.

This is an appeal from an order of the District Court of Sutton County overruling the plea of privilege interposed by appellant, John Q. Adams, to be sued in the county of his residence. Plaintiff declared on a written lease alleged to have been executed and delivered by Culberson Ranch Company, a partnership composed of John Q. Adams and Duke Wilson. A breach of the covenant in the lease is alleged whereby the defendants hound themselves to drill a water well on or near the boundary of the premises leased to plaintiff, and damages are alleged to have resulted from such breach. Appellant Adams in due time filed the statutory plea of privilege. Appellee filed controverting affidavit, alleging residence of the defendant Duke Wilson to be in Sutton County, and by reference made the petition a part of the controverting affidavit. The controverting affidavit further sets forth that defendants each are jointly and severally liable to him for the breach of the contract alleged, and hence were proper and necessary parties. Appellee relies on the exceptions contained in Sections 4 and 29a, of Article 1995, Vernon’s Ann.Civ.St., relating to venue. The evidence was undisputed that Duke Wilson was at all relevant times a resident of Sutton County.

Appellant assails the action of the trial court in substance as follows: (1) Plaintiff failed to allege a cause of action against the resident defendant, Duke Wilson; (2) plaintiff failed to show a cause of action against said defendant Wilson.

The petition of plaintiff by reference is incorporated in his controverting affidavit. In this petition the lease is set forth in full and purports to have been executed by Culberson Ranch Company, acting through appellant Adams. In the lease the Cul-berson Ranch Company is described as a partnership composed of John Q. Adams and Duke Wilson. The lease was for a term of three years from November 1, 1938 to the 31st day of October, 1941, same was dated October 5, 1938. Included in the lease were approximately sixteen sections of grazing land in Culberson County. Among the covenants of the lease is the following: “Lessor further contracts to drill a water well, said well to he on or close to the lessee’s boundary line, and said well is to be shared with the lessor, or parties designated by him.”

Plaintiff averred taking possession of the property under the lease and placing a large number of livestock thereon; further that defendant failed to drill the well contracted to be drilled; the consequent suffering of his livestock; that on account of the shortage of water it was necessary for plaintiff to dispose of his livestock and abandon the place on or about the 8th day of February, 1939. Plaintiffs suit was filed .March 6, 1939.

The petition, after the averment as to the payment of the rental for the first year and plaintiffs moving numerous livestock on the land, alleges: “But that the defendants ■ breached and disregarded their contract and failed to drill the water well on said land by the 1st day of 'November, 1938, or at any time since said date.” Thereafter, as above narrated, follow allegations as to the result of the failure to drill the well and as to the inadequacy of the water supply available.

If breach there was of the provision in. the lease quoted above, the factual base alleged’to constitute the breach is the failure of defendants to drill the well before March 6, 1938, the date of the filing of' plaintiff’s petition. In the lease it is not provided when the lessor shall commence. drilling the contemplated well, nor by what date same should be completed.

The petition fails to aver what would be a reasonable time within which to drill a water well of the character contemplated. No circumstances are alleged from which this may be deduced. In this connection, however, it should be said, it was alleged that at the time of the making of the contract the parties knew for what purpose plaintiff was leasing the land, and that same; without additional water, was inadequate for that purpose.

It seems to be assumed by each of the parties that the obligation imposed as to the water well was to drill same within a reasonable time.. In our opinion this construction is correct, and same is not tó be construed as a covenant to drill be-

fore November 1, 1938. Lunn v. Gage, 37 Ill. 19, 87 Am.Dec. 233; 16 R.C.L. p. 792, par. 287; 10 Tex.Jur. p. 413; Self v. King, 28 Tex. 552.

The law seems to be that in order to sustain venue a cause of action must be alleged and proved against the resident defendant. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747; 43 Tex.Jur. pp. 750-755, sects. 34-38.

Let us then first consider the question from the standpoint of the pleading. There is a breach alleged if it follows, as a necessary inference from the averment, that the failure to drill the well from October 5, 1938 to March 6, 1939, constituted a failure to drill the well within a reasonable time. In our opinion this is not a necessary inference. The covenant invoked is to be reasonably construed in the light of the circumstances surrounding the parties. It is true, plaintiff’s need for the well may have been urgent; but, in our opinion, an honest and diligent effort on the part of defendants to comply with the covenant would suffice.

Where failure to perform a contract duty within a reasonable time is relied upon to constitute a breach, the petition should clearly aver facts showing what was a reasonable time for the discharge of the duty in question. J. M. Radford Grocery Co. v. Jamison, Tex.Civ.. App., 221 S.W. 998; 17 C.J.S., Contract p. 1179, § 547.

We do not believe the above is-in conflict with the case of Paine et al v. Hart-Parr Co., Tex.Com.App., 228 S.W. 121, 122. The obligation there was to pay money within a reasonable time. It was. there held that the allegation, “although often requested, defendant wholly failed and refused to pay the same,” sufficiently charged a nom-compliance with the stipulation to pay within a reasonable time.. There is no such averment in the petition under consideration. The petition contains, the bald statement that there was a failure to drill the well within a given time*. It is true, as stated in the case of Paine, et al. v. Hart-Parr Co., supra, a liberal construction must be given the petition when assailed by a general demurrer. While the petition in the instant case is-not here assailed by a general demurrer, we believe it is entitled to the same liberal construction as though such was the case. Here the plaintiff’s petition is a part of the controverting affidavit, and is a part of the evidence in the case.

In view of the fact that there is some doubt in our mind as to the correctness of the decision on the pleadings, we shall briefly discuss the sufficiency of the evidence adduced to make out a cause of action against the resident defendant, assuming the sufficiency of the pleadings.

Duke Wilson at all relevant times was a resident of Sutton County. If he was liable in the premises, he was jointly liable with the non-resident defendant, Adams. The nature and character of plaintiff’s suit made him a proper, if not a necessary, party to the cause of action. Appellee asserts, in substance, that it was not shown that Wilson was a party to the contract in question; that his plea of privilege put in issue the question of the execution of the contract by Adams and the existence of a partnership alleged between Adams and Wilson. This, we think, is correct. Adams, however, signed the contract. In the contract it is recited that Adams and Wilson were the partners composing the Culberson Ranch Company. It is true, that in the ordinary case a denial of partnership by one alleged to be a partner inures to the benefit of his co-defendant. This, however, was but a special proceeding to determine the venue of this action — venue facts only were in issue. In a sense, Wilson was not a party to the proceeding. The controversy was between Adams and the plaintiff. We think that these recitals in the written instrument as to the existence of the partnership between Wilson and Adams, in the absence of other evidence, are conclusive on Adams as to the existence of that partnership. Now it is clear that prior to about March 8, 1939, a producing water well was not drilled contiguous to the boundary between plaintiff and defendants. Plaintiff assumed throughout that the obligation of defendants was to drill a producing water well within a reasonable time. We shall, for the purposes of discussion, assume that this is correct, without so holding. There is some doubt in our mind as to whether this is a correct construction. The contract specifies in a general sort of way the location of the well contemplated, but fails to specify as to its depth, or as to who is to equip same. In the absence of such specifications, we think the case of Folmar v. Thomas, Tex.Civ.App., 196 S.W. 861, 864, has some bearing on the questions here involved. It is there stated, “As to the houses, cribs, and wells, the same rule should be applied, in so far as the contract omitted to state the character of such improvements. Manifestly the purpose sought to be accomplished by the stipulation requiring the lessee to dig certain wells to obtain water for domestic uses; and while the contract does not guarantee that water should be procured, and does not specifically state how deep the wells should be, nor the character thereof, we hold that it placed upon the lessee and his successors an obligation to expend a reasonable amount of money or labor for the purpose of constructing such wells as are in general use in that locality.” See also Schofield v. School Dist. No. 113, Labette county, 105 Kan. 343, 184 P. 480, 7 A.L.R. 788.

Now, it would seem that so long as defendants were proceeding with reasonable skill and diligence to produce the water well contemplated, that this would be a compliance with their covenant

Appellee Chadwick testified as to the efforts of defendants to drill the well. In fact he was the only witness testifying on this point. On cross-examination he stated that when he went into possession of the premises defendants were drilling a well contiguous to the boundary; that same was drilled at a location mutually agreeable to the parties to the contract; that according to his information this well was drilled to a depth of about 500 feet and no water was obtained; that thereafter, about December 15th, a new well was started drilling by defendants contiguous to the boundary; that his information was that this well was drilled to a considerable depth, and, no water being obtained, was likewise abandoned; that on or about March 8th, defendants informed him that they had obtained water in the central portion of the leased premises at a depth of about 500 feet. This, we think, is substantially all of the testimony relative to drilling operations conducted by defendants.

If this testimony raises the issue of failure to drill the well within a reasonable time, we must impute the finding to the trial court that the well was not drilled within a reasonable time. We do not believe that the issue is raised by the evidence. In our opinion, it is insufficient to justify a finding of a breach. There is no evidence of any complaint as to lack of diligence on the part of defendants in drilling the well; the evidence likewise fails to show that it was not the part of prudence to abandon the two first wells in question and seek to develop water in another place; there is no evidence as to what depth it was necessary to go to demonstrate whether water could be produced; it is not disclosed as to the length of time requisite to drill a water well in the area in question; there is no evidence from which it can be reasonably inferred that the operations of defendants were not continuously skilfully and diligently prosecuted. We do not believe, from the mere fact a producing water well was not drilled before March 6th, it can be reasonably deduced that defendants breached their covenant.

However, we think that justice would be best subserved by giving the plaintiff an opportunity to amend his pleading and to adduce further proof, if he is able and desires so to do, on the question of the breach of the covenant.

It is ordered that the cause be reversed and remanded. •


author: JACKSON, Chief Justice.

text:
    ROBERTS et al. v. ROBERTS.
    No. 5146.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1940.
    Rehearing Denied May 20, 1940.

      John L. Ratliff and Nelson & Brown, all of Lubbock, for appellants.
    Price & Moss, of Post, for appellee.
   JACKSON, Chief Justice.

The record shows that W. E. Roberts, who died in April, 1933, and Callie Roberts, who died in February, 1931, were husband and wife and while living together as such accumulated a community estate consisting of two tracts of land one of which, hereafter called the large tract, is the northwest one-fourth of Survey 1236, Certificate 170, A. B. & M., situated in Garza County, Texas, containing 157.7 acres. This large tract was encumbered by a lien to the Federal Land Bank of Houston to secure the payment of $2,220.18 due January 1, 1938, with interest. The other we will call the little tract, contains 77.4 acres out of Survey 4, S. F. 1442, Block 4, and was encumbered by a lien to the Double U Company of Post for the sum of $606.34 due January 1, 1938, with interest.

W. E. Roberts and his wife, Callie, had born to them three sons, namely, A. 5. Roberts, H. A. Roberts and D. C. Roberts, each of whom is entitled to a one-fifth undivided interest in the estate of their father and mother. W. E. Roberts and his wife also had two- daughters, Laura Roberts Ellis, who died leaving an only child, Mrs. Aline Carden, who is entitled to a one-fifth interest in the estate of her grandparents, and Minnie Roberts Ferrell, who died leaving but two children, Elbert Ferrell and Elvin Ferrell, each of whom is entitled to a one-tenth interest in their grandparents’ estate. The plaintiffs, D. C. Roberts, Mrs. Aline Car-den, joined by her husband, John N. Carden, Elbert Ferrell for himself and as next friend for Elvin Ferrell, a minor, complaining of H. A. Roberts, A. S. Roberts, M. L. Ellis and Hugh Ferrell, alleged the above enumerated facts and in addition pleaded that plaintiffs and defendants were joint owners and together constituted the sole owners of the two tracts; described the land in detail; alleged the plaintiffs and defendants are the only heirs of W. E. Roberts and Callie Roberts, deceased; that there are unpaid taxes against each of said tracts; and that no administration was had on the estates of W. E. or Callie Roberts and none was necessary.

Plaintiffs alleged that defendant, A. S. Roberts, has resided upon and used the large tract continuously since the death of their parents and has made no accounting for the rents due the estate for 1932, 1933, 1934, 1935, 1936 and 1937, inclusive ; that he has used and worked the little tract for the years 1932, 1933, 1934 and 1935 and has made no accounting to the estate for rents for the use and occupancy of said land; that he has paid out certain sums of money on the obligations of the estate and on taxes against it, the amount of which is unknown to them.

They pray that they have judgment for a partition of the estate; that the defendant, A. S. Roberts, be required to make an accounting of all the rents due by him to the estate, show the payments made by him for the estate; and that they have judgment for such rentals, deducting from the interest of A. S. Roberts the indebtedness he is due the estate.

A. S. Roberts answered by general demurrer, general denial and pleaded various sums of money he had out of his own funds expended for the protection of the estate, the aggregate of which he alleged to be $3,129.02; asked for judgment for his debt and that the court fix an equitable lien on the four-fifths interest of the other plaintiffs and defendants to secure the payment of such expenditures.

The testimony shows that A. S. Roberts had 'continuously occupied the large tract of land, used and worked it for the years 1933 to 1938, inclusive, and that he had used and worked the little tract for the years 1933 to 1935, inclusive. It was agreed by the parties that for the above named years A. S. Roberts paid no rent to any of his co-tenants but retained all the proceeds of the entire crop produced by him and by this retention of the entire crop he received rent from 1933 to 1938, inclusive, amounting to $2,374.68. It was also agreed that .the property was not susceptible of partition in kind and that a receiver should be appointed, the land sold and the proceeds distributed among the parties at interest.

The parties also agreed that A. S. Roberts did for the benefit of said estate since the death of his parents pay out the following sums of money:

Taxes . $ 405.05
Doctors Surman & Williams. 157.09
Double U Company. 891.73
The Federal Land Bank of Houston . 340.85
Davis-Mason Company. 288.13
The First National Bank of Post 384.55 Dr. V. A. Hartman. 45.00
Total . $2512.40

On the items not covered by agreements, in response to special issues submitted by the court, the jury found that A. S. Roberts had paid to Dr. Hartman $250 out of his personal funds prior to the death of his father; that he had paid the Higgin-botham-Bartlett Lumber Company since the death of his father for material used on the premises $75, and still owed $83.20 thereon, and had paid to the Warren Drug Store $24.46.

On these agreements as to the rents retained, debts paid and the findings of the jury the court rendered judgment for A. S. Roberts for the sum of $1,916.83 -and fixed an equitable lien on the interest of the other plaintiffs and defendants in the estate to secure A. S. Roberts in the payment thereof, appointed a receiver, ordered the property sold, the indebtedness paid and the balance distributed among the heirs. From this judgment this appeal is prosecuted.

The appellants by several assignments assail the judgment as fundamentally erroneous since not supported by the pleading, the evidence nor the verdict of the jury.

Under these assignments appellants urge that since the pleadings of A. S. Roberts do not disclose that the parties were co-tenants nor that he is claiming the rents which he appropriated by virtue of working and occupying the land as a co-tenant the court erred in refusing to require him to account to the other co-tenants for the $2374.68 which he retained as rent.

The facts alleged by the plaintiffs show conclusively that A. S. Roberts was a co-tenant with them; that he occupied and cultivated the land and paid them no rents; and his general denial put in issue his obligation to pay rent to his co-tenants.

The facts admitted by the parties show without contradiction that he was a co-tenant; that he occupied and worked the premises; that he did not oust any of his co-tenants nor refuse to permit them to occupy and use the premises in common with him, and the fact that he was not designated in his pleading as a co-tenant would not preclude his recovery in such capacity nor render the judgment void because he was not required therein to account to the other co-tenants for rent.

In Thompson et al. v. Jones et al., 77 Tex. 626, 14 S.W. 222, 223, the Supreme Court, speaking through Judge Gaines, says: “The verdict of the jury finds that the defendants were tenants in common with plaintiffs in the premises. We understand the rule to be that one tenant in common, who uses and cultivates land, cannot be made to account to his co-tenant until there has been a formal demand by the latter to be admitted to the possession in common, and such possession has been refused. Where a tenant in common has nothing to do but receive the rents, a different rule prevails. Neil v. Shackelford, 45 Tex. 119. We are clearly of opinion that defendants should not have been charged with rent of the land in this case until a demand for possession was made, and then not upon their improvements.”

In Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260, 262, Judge Yantis of the Supreme Court says: “When two persons are cotenants in the ownership of land, and one of them incurs expense in the improvement of the property which is necessary and beneficial, it is equitable that the one incurring the expense shall have contribution from his cotenant in an amount which is in proportion to the undivided interest owned by such cotenant; but there is no principle of equity that will permit him to speculate on the transaction, and require his cotenant to return to him any greater sum than his proportion of the money actually expended.”

See also Roberts et al. v. Roberts et al., Tex.Civ.App., 278 S.W. 937; Hacker v. Hacker et al., Tex.Civ.App., 4 S.W.2d 218; Berkley et al. v. Neely et al., Tex.Civ.App., 6 S.W.2d 430; Nicholas Hanrick et al. v. E. J. Gurley et al., 93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330.

Under this record and what appears to be the settled law of this State A. S. Roberts was not required to account to his co-tenants for the occupancy, use and cultivation of the premises and the court did not err in so holding.

The statement of facts indicates that several witnesses testified concerning some items of indebtedness paid by A. S. Roberts but their evidence was omitted from the statement. We are unable to ascertain from the record what sums of the admitted items paid by A. S. Roberts and those found by the jury the court included or excluded in computing the amount of the judgment $1916.83 rendered in favor of A. S. Roberts. He does not complain of the amount and the appellants agreed that he had paid out for the betterment of the estate sums exceeding the judgment he recovered by several hundred dollars.

The record does not reveal whether the court charged the defendant Roberts with one-fifth of the $1,916.83, which as an heir he was obligated to pay, or not, and, since the burden was on him to show the amount he was entitled to recover, one-fifth of the amount of the judgment will be subtracted therefrom, which is the amount for which the judgment should be rendered, $1,533.44.

The appellants also assert that the court erred in fixing an equitable lien on the property in behalf of A. S. Roberts to secure the payment of the moneys he had expended for the betterment of the estate.

It will be noted that limitation is not urged against the recovery of the debt nor the fixing of the equitable lien. The appellants agreed that A. S. Roberts had paid taxes amounting to $405.05; had paid $891.73, which they allege was secured by a valid lien, to the Double U Company; had paid to the Federal Land Bank of Houston $340.85, which they plead was secured by a valid lien; and had paid to Davis-Mason Company for funeral expenses $288.13 for which article 3531 of Vernon’s Annotated Civil Statute fixes a lien. These items amount to $1925.76, and deducting the one-fifth due by A. S. Roberts therefrom leaves a balance of $1,540.60, and the court was authorized to fix an equitable lien in favor of A. S. Roberts for the amount of the judgment here allowed, $1533.44.

In Johnston v. Johnston, Tex.Civ.App., 204 S.W. 469, 470, the court said: “As a general rule- the redemption of the common property by one joint tenant, whether accomplished by the acquisition of the incumbrance or by the purchase of the property at a foreclosure sale, will inure to the benefit of the joint owners. Roberts v. Thorn, 25 Tex. [728], 735, 78 Am.Dec. 552; 7 R.C.L. p. 857 et seq. But the tenant who redeems has a right to demand contribution from his co-owners. As between him and defaulting co-tenants the lien is not extinguished, but is kept alive for his benefit, and may be foreclosed upon the failure of the co-owners to reimburse him within a reasonable time. Niday v. Cochran, 42 Tex.Civ.App. 292, 93 S.W. [1027], 1029; Hogan v. McMahon, 115 Md. 195, 80 A. 695, 24 Ann.Cas.1912C, 1260; Starkweather v. Jenner, 216 U.S. 524, 30 S.Ct. 382, 54 L.Ed. 602, 17 Ann.Cas. 1167, and notes; 7 R.C.L. p. 868. The tenant who redeems the common property becomes subrogated to the rights of the original lienholder.”

See also Niday et al v. Cochran, 42 Tex.Civ.App., 292, 93 S.W. 1027; Magruder v. Johnston et al., Tex.Civ.App., 233 S.W. 665; Linz et al. v. Bower, Tex.Civ.App., 86 S.W.2d 63.

Appellant’s motion to dismiss the appeal for the insufficiency of the amended appeal bond which the court allowed to be filed is overruled.

The decree of the trial court is reversed and here reformed adjudging to A, S. Roberts the sum of $1,533.44 and fixing a lien upon the lands to secure the payment thereof and as so reformed the judgment is affirmed.


author: GRAVES, Justice.

text:
    HIGGINS v. MOSSLER ACCEPTANCE CO.
    No. 10967.
    Court of Civil Appeals of Texas. Galveston.
    April 25, 1940.
    Rehearing Denied May 30, 1940.
    John B. Warren, of Houston, for appel-. lant.
    Gammage, Gammage & Bauer and Earl W. Gammage, all of Houston, for appellee.
   GRAVES, Justice.

This general statement, adopted by the appellee,. as qualified by “explanatory and supplementary statements in clarification thereof”, is taken from the appellant’s brief: “This is a suit by the appellant against the Mossier Acceptance Company to recover double the amount of usurious interest alleged to have been paid by the appellant to the appellee in the aggregate sum of $437.36, less the sum of $40.16, the balance due on the principal sum borrowed from the appellee with which to purchase an automobile from the Harlan Hodges Motor Company, and further to recover the sum of $400.00 as damages for wrongfully taking from the appellant the automobile so purchased, with interest at six per cent per annum from October 26, 1938, and a cancellation of the note and chattel mortgage given by the appellant and owned by the appellee. The suit was tried in the court below without a jury, and at the conclusion of the appellant’s evidence in chief, the appellee moved the court to render judgment for the appellee upon the evidence of the appellant, which motion the court granted, and accordingly rendered judgment. To all of which the appellant excepted and in open court gave notice of appeal to the Court of Civil Appeals of the First Judicial District of Texas at Galveston. At the same time, appellant requested the trial court to file conclusions of fact and law, which was done.”

The appellee’s supplementary statements are to this effect, in substance: That appellant alleged the terms of the $898.20 note he signed for the balance of the purchase-price of the automobile he bought from Hodges, which was payable in 30 monthly installments of $29.94 each, attaching also to his trial petition a copy of the chattel mortgage securing the note which he gave to the Hodges Motor Company, and which was thereafter assigned to the appellee. Then follows this statement:

“Appellant, however, wholly failed to allege in his pleading that he agreed with ap-pellee to attempt to circumvent the usury laws of Texas, and that pursuant thereto, the note and chattel mortgage filled out in the manner pleaded was done under an agreement, device, scheme, subterfuge and conspiracy to violate the Texas usury laws, although the note and mortgage pleaded by appellant on their face provided for legal interest.
“The chattel mortgage pleaded by appellant Higgins provided, among other things, the following:
“ ‘That E. N. Higgins of the City of Houston, in the County of Harris, and state of Texas (hereinafter termed Mortgagor) in consideration of $898.20 balance of purchase money due to Harlan Hodges Motor Company * * * ’ ”

It next adds a further assertion, in purport, that the trial court did not sustain ap-pellee’s motion to render judgment for it at the conclusion of appellant’s evidence, as his copied statement recites, but instead, that it first heard the testimony of two of appellee’s witnesses before entering such judgment.

The trial court’s judgment itself contains this recitation: “ * * * and plaintiff having presented his evidence in chief, and having announced that he rested, then came the attorneys for the defendant and made an oral motion that plaintiff take nothing by his suit, and that judgment be rendered for the defendant, and the Court, having heard such motion and the- argument thereon, is of the opinion that said motion should be sustained, and it is hereby sustained.”

The quoted provision in the judgment itself is nowhere impeached in the transcript, hence it is deemed to be binding upon this court, notwithstanding the appel-lee’s assertion that two of its witnesses were first heard; even were they provisionally heard, just as it claims, there appears no showing whatever that it offered their testimony, or any other, in its own behalf; rather does it appear- — -presumptively at least — that it was content to have the judgment entered on its own motion and conclusion that appellant had made out no case against it. At all events, it was entered without a trial of the whole case, but for one side only.

So that, in this state of the record, this court concludes that the rule applied in Donaldson v. Oak Park Cemetery, Tex.Civ.App., 110 S.W.2d 119, is applicable here, and that this cause should be reversed, if it be found that appellant’s evidence raised any material issue of fact in support of his declared-upon cause of action.

The substance of the learned trial court’s findings of both fact and law was that the evidence wholly failed to show what amount of interest was either added into the principal of the note plaintiff executed, or was paid by him thereon to the defendant.

The appellant'has failed to present here any assignments of error against the denial of his claim below for damages for conversion of the automobile involved, hence that feature of the controversy is not before this court.

It is thought the appellee (whose present attorney did not try the cause below), as presaged in his “supplementary statements”, supra, has mistaken the essential nature of this suit as brought by the appellant, together with the probative effect, in part at least, of the testimony he offered in support thereof; as so declared upon and sought to be proven, this was not such a case as many of the authorities appellee relies upon dealt with, that is, one where an assignee of a note and mortgage securing it, like those here involved, becomes such as an innocent purchaser of such obligations already executed between the original parties thereto; on the contrary, in this instance, by the specific pleadings as well as his entire evidence offered as in support thereof, this appellant declared in effect upon a tripartite or single-transaction contract between himself, as the purchaser of the automobile, Harlan Hodges, doing business as the Harlan Hodges Motor Company, the seller of it, and Jacques Mossier, doing business as Mossier Acceptance Company, as the lender to appellant of the money necessary to finance such sale and purchase between the other two, all three participating in the enterprise evidenced by the note, the chattel mortgage securing it, and the assignments of both to Mossier, as original principals; indeed, both such pleadings and proof set out that all three parts of the deal — that is, the note, the chattel mortgage, and the assignments thereof — had, as component parts of such resulting transaction, been originally drawn and executed in Mossler’s office; in other words, the gist of the whole'contract, as thus alleged and testified to by the appellant and his witnesses, is reflected in these portions of his trial petition:

“The purchase price for said new automobile was * * * $877.00, of which * * * plaintiff paid to the said Motor Company $277.00 by delivering to it an used automobile, then owned by ’ plaintiff, at an agreed price of $277.00, leaving a balance of $600.00 due to said Motor Company on said purchase. That said Motor Company advised plaintiff the- defendant would finance the purchase of said automobile and accordingly the plaintiff and said Harlan Hodges, the seller, went to the place of business of the defendant, where the defendant agreed to lend to the plaintiff $600.00, with which to complete the purchase.
“Third. In pursuance of said agreement to lend to the plaintiff $600.00, with which to complete the purchase of said automobile, the defendant, acting by arid through its servants, agents and employees, caused the plaintiff to sign a promissory note for $898.20, of date September 8, 1936, due and payable to the said Harlan Hodges in thirty equal installments of $29.94 each, the first installment to be due and payable on October 6, 1936, and on the sixth day of each and every month thereafter until thirty installments had been paid, or until the full sum of $898.20 was paid, said installments to bear interest at the rate of ten per cent per annum from maturity until paid.
“Plaintiff further alleges said defendant caused plaintiff to execute and deliver a chattel mortgage on said automobile, to secure the payment of the said promissory note in the sum of $898.20, in installments as aforesaid, in which chattel mortgage it was provided that, if plaintiff should default in the payment of said installments, or any of them, according to their tenor, that all of the unpaid installments should at the option of the holder of said note, without notice of said option to anyone, become due and payable, and that the then-holder of said note should have the right to take immediate possession of said chattel and dispose of same at public sale, after first giving ten days notice of the time and place and terms of sale, or at private sale with or without notice, as said mortgagee or the then-holder of said note might elect, and collect the purchase money paid for said chattel at such sale and out of the purchase money arising from such sale, there should first be paid all costs and charges and expenses incurred in taking possession of said chattel and selling the same; second, to the cost of repairing and reconditioning said automobile so as to put same in first class condition for sale; third, to the payment of all sums then unpaid on said note, and the surplus, if any, shall be paid to the mortgagor’s legal representatives.
“Plaintiff alleges the defendant caused the said Harlan Hodge's Motor Company and Harlan Hodges, owner, at said time, to execute an assignment of said note and chattel mortgage to said Mossier Acceptance Company, whereby defendant became the owner and holder of said note and chattel mortgage with all of the rights, privileges and remedies of the said Harlan Hodges Motor Company. That said note, chattel mortgage, and assignment were all prepared by the defendant in the office of the said Mossier Acceptance Company on forms commonly used by said company, and were there executed at the instance and request of the defendant and were the means by which plaintiff borrowed from the defendant the sum of $600.00, with which to complete the purchase of said automobile, and all of said papers and acts constitute a single transaction by which said loan was effected. That by said transaction and as a result of the execution of said note and chattel mortgage, plaintiff received only the sum of $600.00. * * *
“Fourth. Plaintiff alleges that the principal of said loan was the sum of $600.00 and the interest on said loan was the sum of $298.20, and that said principal and interest are incorporated in the said note and chattel mortgage and same divided into thirty equal payments of $29.94 each, and each installment included the payment of .$20.00 upon the principal of said loan and $9.94 interest. * * *
“Fifth. Plaintiff alleges that, beginning on October 5, 1936, he paid twenty-six of said installments regularly, each and every month, at or before they matured, and the defendant received the same; that said twenty-six installments aggregated $778.44; that defendant applied $520 thereof to the principal of plaintiff’s debt of $600.00, leaving a balance due on the principal of said debt the sum of $80.00; that defendant applied $258.44 of said aggregate sum to interest.”

There can be no doubt that the substance of appellant’s evidence — especially his own testimony — raises issues of fact over what was thus alleged to have been the essential nature of the contract itself that he was entitled to have fully tried out by the court; it is, therefore, no answer to his petition for the appellee to reply, as it in effect does, that, since the note was on its face for $898.20, and the mortgage securing it recited that such stated sum was “the balance of purchase-money due to Harlan Hodges Motor Company”, the transaction was not usurious upon its face, but simply reflected a sale for credit at a higher price than for cash, inclusive of stipulated insurance; this, for the reason that, as is apparent, the appellant went further and specifically averred that, with the three parties thus acting together, he had purchased the automobile from the seller at the agreed-price of $877, of which $277 was paid by the trade-in of his old car, leaving him owing the seller only $600, which was to be financed by the appellee through the note and mortgage declared upon; that in making such loan, the appellee, without paying the appellant any money whatever .and without providing for any insurance on the car, amortized such loan into this note and mortgage, incorporating into them both $298.20 for the unearned interest over the period called for and adding that to the $600 as the actual balance due on the new automobile, and nothing else, thereby making up the $898.20 so carried into both the note and the mortgage.

Neither can appellee’s further contention that insurance carried, or to be carried on the car under the contract, cleared it of any implication of having been usurious; this, for the reason that, under both pleading and proof tendered upon that feature by the appellant, if true in fact, no insurance was ever taken out by appellee for his benefit, nor given to him; that he simply agreed with Mr. Hodges, with the knowledge and acquiescence of the appel-lee, that the balance due from him as the purchase-price on the car would be roughly $600 — that he agreed to buy it for that deferred-payment price, over and above the $277 value of his old car, and to give therefor 24 notes at $30 a piece; that neither of the other parties told him how much the insurance on the car they talked about in his presence would be in money, nor did they ask him if he could pay for insurance in cash; that if the insurance had been around $100, he could have paid it.

Furthermore, the agreement, through such provision in the chattel mortgage, was expressly that all insurance on the car, whether by the appellant or the appellee, should be paid for by appellant, in addition to the amount he agreed to pay for the loan; then follows this stipulation in the mortgage: “If any insurance company shall for any cause refuse to insure mortgagor’s interest in said chattel, such refusal shall in no manner affect the installment payments as stipulated in the mortgage.”

There is neither evidence nor pleading in the record to the effect that any insurance premiums were incorporated in the $898.20 note appellant so executed and delivered to the appellee; in other words, the inference is well nigh inevitable from this triple arrangement, if so participated in by the three named persons, that appellee was to be paid $898.20, and, in addition thereto, any and all insurance-premiums it might be required to pay.

Appellant further both alleged and testified that he paid to the appellee on the principal of such debt $520, and on the interest thereunder $258.44; that of such total interest, $39.76 was paid over two years prior to the filing of this suit, in consequence of which, he alleged, there was only $80 unpaid principal still due the appellee, which, in interest-credit and money, he tendered the latter in his pleadings.

If the face of the note and mortgage, along with the assignments thereof, did not, as so alleged by appellant, reflect the true consideration for the contract actually made among these three parties, it was clearly competent for appellant to show what the actual agreement was, without a pleading of fraud, accident, or mistake; 10 Tex.Jur., page 119, paragraph 69, footnotes 11 and 12, and cited authorities; this he undertook to do through the evidence he offered, and there, was none actually offered by the appellee in its own behalf in controversion thereof. In this situation it seems plain that, if the real contract was as so alleged and testified to by the appellant, it was usurious on its face as a matter of law, under these well-settled authorities: R.S.Articles 5069, 5071, 5073; Shropshire v. Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11, 84 A.L.R. 1269; Bothwell v. Farmers & Merchants State Bank & Trust Co., 120 Tex. 1, 30 S.W.2d 289, 76 A.L.R. 1480; Deming Inv. Co. v. Giddens, 120 Tex. 9, 30 S.W.2d 287; Temple Trust Co. v. Stobaugh, Tex.Civ.App., 59 S.W.2d 916, 917; Parks v. Lubbock, 92 Tex. 635, 51 S.W. 322; Galveston & H. Investment Co. v. Grymes, 94 Tex. 609, 63 S.W. 860, 64 S.W. 778; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035; Hewitt v. Citizens Savings Bank, 119 S.W.2d 1073.

Indeed, it is not only self-evidently a usurious contract on its face — if the appellant only owed Harlan Hodges a $600 balance on the purchase-price of the car at the time the $898.20 note was executed by him — but it was so admitted by the ap-pellee through his counsel, Mr. Crawford, on the trial, and stipulated in the record.

Moreover, if the testimony that the $298.-20 was thus originally included as interest in making up the $898.20 note be accepted, the express provisions in the chattel mortgage authorizing the holder of the note to declare it all due, on failure of the maker to pay at maturity any installment thereof, unmistakably constituted in that respect a usurious contract upon its face; see Shropshire v. Farm Credit Company, and Temple Trust Co. v. Haney, supra.

Since, under the undisputed testimony upon that feature, the appellee did, after first collecting from appellant the first 26 of the installment notes, declare the last four due and payable under such acceleration provision, it follows ás a matter of simple calculation that usurious interest was paid.

Wherefore, if the terms of the trade, the nature of the contract, and the acts of the three named parties under the same, were as this uncontroverted testimony in behalf of appellant indicates, it follows that the able trial judge’s conclusions of both fact and law are without sufficient support.

Further discussion is deemed unnecessary, as the conclusions stated determine the merits of the appeal; since the whole cause was not tried out upon the facts, and there was error in the judgment as rendered, it will be reversed and a new trial ordered.

Reversed and remanded.