author: JACKSON, J.

text:
    KITCHEN v. LLOYD.
    (No. 3097.)
    Court of Civil Appeals of Texas. Amarillo
    Oct. 31, 1928.
    Rehearing Denied Nov. 21, 1928.
    T. L. Price, of Post, and Vickers & Campbell, of Lubbock, for appellant.
    A. W. Gibson, of Lamesa, A. R. Anderson, of Post, and Lockhart, Garrard & Brown, of Lubbock, for appellee. \
   JACKSON, J.

This is a suit by appellant, L. W. Kitchen, against the appellee, J. F. Lloyd, to recover the sum of $684 on a contract to pay brokerage, or, in the alternative, to recover $500 as the reasonable value of appellant’s services as a real estate broker.

Appellant alleges that he was a real estate broker engaged in the real estate business and bringing together parties for the exchange of their properties; that the appellee employed him to find a purchaser and assist in a sale or exchange of 960 acres of land in Garza county, Tex., owned by appellee, at a price of $30 per acre, or such price as the appellee and a purchaser might agree upon; that appellant informed appellee that he had a customer by the name of C. A. Taylor, who owned certain real estate in Coke county, Tex., who was ready, able, and willing to exchange his lands in Coke county for appellee’s lands in Garza county, subject to the inspection by each party of the other’s property; that appellee then instructed appellant to do all he could to bring about a trade between appellee and Mr. Taylor; that appellee was informed by appellant that he charged the usual and. customary commission of 2½ per cent, of the value of the property exchanged, to which appellee by implication agreed; that appellant, relying on appellee’s implied promise to pay him such commission for his services, brought the parties together, and was the sole and procuring cause of appellee and Mr. Taylor entering into a binding contract for the exchange of their properties upon price and terms agreed upon by 'appellee and Mr. Taylor, a copy of which contract is attached to and made a part of appellant’s petition, but which we deem it unnecessary to set out; that, at the time the contract was made between appellee and Mr. Taylor, the appellee was again informed by appellant that he would charge him the usual and customary commission for his services; that some time thereafter, without the knowledge or consent of appellant, the appellee canceled said contract and withdrew the forfeit provided for in said contract for the enforcement thereof, and without any just cause refused to perform his part of said contract, whereby he became bound and liable to appellant to pay him 2½ per cent, commission of the agreed consideration of $27,360, which Mr. Taylor contracted to pay appellee for his land.

Appellant alleges in the alternative that, if he should be mistaken as to his right to recover commission under the contract, as above stated, at the special instance and request of appellee, he rendered him services in the exchange of his lands, which services were' accepted by appellee and were of the reasonable value of $500, for which amount he asks judgment.

The appellee answered by general demurrer and special exception, and pleaded that if he ever directly or impliedly listed his lands for exchange with appellant, or promised to pay appellant commission for the exchange of his lands, as alleged in appellant’s petition, all of which he denied, such commission was not to become due unless and until appellant procured some person ready, able, and willing to pay appellee $35 per acre for his land, or to exchange other lands therefor and furnish ap-pellee with an abstract of title thereto showing good and merchantable title, and that at no time did appellant ever effect an exchange of said lands or find any person having a good and merchantable title to the lands he proposed to convey to appellee in exchange for his land, for which reason appellee is not indebted to appellant in any sum.

The case was tried to a jury, and, at the close of the testimony, the court directed a verdict in favor of appellee, and rendered judgment that appellant take nothing against appellee, and that he go hence without day, etc.

The appellant, by proper assignment, challenges as error the action of the trial court in peremptorily instructing the jury to find a verdict against him, and in rendering judgment in favor of appellee thereon.

The testimony tends to show that appellant was doing a real estate brokerage business; that he was employed by appellee to assist in the sale or exchange of appellee’s land by finding a purchaser therefor; that appellant procured Mr. Taylor and introduced- him to appellee; that Mr. Taylor and appellee entered into negotiations for the exchange of their lands; that appellant accompanied Mr. Taylor to inspect appellee’s lands in Garza county, and accompanied appellee to inspect Mr. Taylor’s lands in Coke county; that, after the inspection, the appellee employed a lawyer who drew up a written contract of exchange, which was executed by Mr. Taylor and appellee, and provided for the payment Of a forfeit in the event either party failed to comply with the terms thereof; that the contract was mutually satisfactory to Mr. Lloyd and Mr. Taylor, and they assumed the responsibility of the price and terms embodied in the contract; that appellee was informed by appellant that he charged each party to an exchange the usual and customary commission of 2½ per cent, on the value of the property exchanged, and that appellee impliedly agreed to pay such commission on the value of his lands; thkt appellant’s only obligation was to procure a purchaser to contract with appellee for the exchange of their respective properties, anil nothing further was required of him; that appellant procured the contract to be executed by the parties ; that the trade was never consummated, as the parties backed out and drew down the forfeit without appellant’s knowledge or consent, and that there was no agreement that appellant was not to receive his commission, unless the exchange was finally consummated ; that, at the time of the execution of the contract, appellant asked if his commission should not be provided for in the contract of exchange, and was advised by the attorney in the presence of appellee that “It is not necessary. When they sign the contract, your commission is due then.” And appellee said: “You are the only man making any money out of it; you are getting over a thousand dollars out of the whole deal.” This testimony is not controverted.

The appellee contends that a directed verdict in his favor was warranted because the contract was indefinite and failed to describe any parcel of the property involved with sufficient certainty to authorize specific performance.

“Ordinarily, the duties of a broker are merely those of a negotiator, upon whom it is not incumbent to direct or advise as to terms of the contract prepared by the principal, or to explain the meaning of words used. R. C. L. vol. 4, 'p. 269; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 38 Am. Rep. 441; 93 Am. Dec. 172, note. In the absence of an enlarged authority by the principal, the general rule is that the extent of the duty of the broker is merely to find the purchaser.” Iowa Canning Co. v. P. S. Ainsa Co., Inc. (Tex. Civ. App.) 267 S. W. 540.

Under this record, app'ellant was neither responsible for the legality of the contract nor the terms or provisions thereof, as ap-pellee and Mr. Taylor negotiated with each other, the terms of the contract were stated to the lawyer employed by appellee, and the contract prepared by such lawyer under the direction of the parties thereto.

Under appellant’s allegation that he was engaged in the business of bringing parties together for the exchange of their respective properties, and that he was employed to find a purchaser, and was instructed by appellee to do all he could to bring about the trade with Mr. Taylor, and the testimony that appellant was required to do nothing except to procure a purchaser to contract with appellee for an exchange of their respective properties, it was not incumbent upon him to prove that Mr. Taylor’s title was merchantable.

It is said by the Supreme Court, in the case of Francis et al. v. Foster, 113 Tex. 521, 260 S. W. 1023, in answer to a certified question' from the Third district:

“When the seller enters into a binding contract with a purchaser acceptable to him, the seller assumes the risk as to whether or not the purchaser will be in position to perform his part of the contract, and that when such contract is so entered into by the seller the agent has performed all the duties that he can perform under his employment.”
“A broker is entitled to compensation when he procures a purchaser with whom his principal is satisfied, and who actually contracts for the property at a price satisfactory to the owner.” Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117.
“The pleadings and uneontroverted testimony in this case show that the purchaser was satisfactory to appellant, and that it contracted with the purchaser for the sale of the property at a price satisfactory to it; hence the question as to whether the purchaser was able to carry out the contract is not involved in this case.” Watkins Land Mortgage Co. v. Thetford, 43 Tex. Civ. App. 536, 96 S. W. 72.

To the same effect are the holdings in Seidel v. Walker (Tex. Civ. App.) 173 S. W. 1170; Wolfman & Katz v. Callahan (Tex. Civ. App.) 204 S. W. 777; Waurika Oil Association et al. v. Ellis (Tex. Civ. App.) 232 S. W. 365.

The testimony, if admissible, as to, what the attorneys of the respective parties to the contract stated relative to the abstract furnished by Mr. Taylor to appellee showing a good and merchantable title, is of little, if any, probative force in determining whether or not such title was merchantable.

“The evidence relied on is that of the attorney of the proposed purchaser, who testified that it was not good. His conclusion necessarily involved his opinion as to the law of the title. The opinion of counsel, however able and learned, is not evidence. The court must determine the law for itself.” Brackenridge v. Claridge et al., 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593.

Mr. Taylor could testify that he was ready and willing to consummate the exchange, but would not be authorized to testify that he was able to make the exchange, because this would involve his opinion of his title.

In our opinion, the record in this ease, both the pleadings and testimony, presents as an issue of fact to be determined by the jury whether appellant was to receive his commission only in the event the exchange was consummated, or whether, when he procured a customer in the person of Mr. Taylor, who entered into a contract satisfactory to appellee, he had discharged his obligation as a broker and earned his commission. Donahue v. Fuller (Tex. Civ. App.) 5 S.W.(2d) 1037.

The appellant was not entitled to an instructed verdict in his behalf, because, although his testimony as to the brokerage contract was uncontroverted, he was the only witness thereto, and was the interested party. C., R. I. & G. Ry. Oo. v. Hammond (Tex. Civ. App.) 286 S. W. 486, on motion for rehearing, and authorities cited.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HALL, C. J.

license: Public Domain

text:
    MARYLAND CASUALTY CO. v. MARSHALL.
    (No. 3172.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1929.
    Rehearing Granted March 6, 1929.

      Underwood, Johnson, Dooley & Simpson, Vance Huff, and Rip E. Underwood, all of Amarillo, for appellant.
    . ■ Shannon, Ochsner & Pheiffer, of Amarillo, for appellee.
   HALL, C. J.

The appellant company filed this suit to set aside an award made by the Industrial Accident Board to appellee, Marshall. The sufficiency of the pleadings is not questioned, and the following brief summary thereof we think is a sufficient statement of the issues for the purposes of this opinion:

The company alleged that the Accident Board had awarded to Marshall certain sums of money in excess of $500 as compensation for certain injuries sustained by him in the course of his employment by the National Drilling Company; that said drilling company was a subscriber to the Workmen’s Compensation Act, and on April 13, 1927, Marshall sustained the injuries for which compensation was claimed; that the necessary notices were given and an award made in favor of Marshall. The prayer is that the award be set aside, and that it recover its costs.

By answer and cross-petition Marshall set out the fact of his employment by the drilling company, and that while in the course of his employment he sustained certain personal injuries on April 13, 1927; that his employer was insured under the Workmen’s Compensation "Act by the appellant; that within 30 days after the date of his injuries, which were specifically described, due notice was given to the appellant; that his claim was duly filed with the Accident Board, resulting in an award in his favor in excess of $500; that the appellant had appealed from the award; that prior to the date of his injuries, he had been working for many years in Texas as an oil well driller, with a daily wage of $14 per day; that for substantially a year next preceeding the day of his injuries he had been working as a driller in Hutchinson county at a daily wage of $14; that his average weekly wage was $80.75, and that he was entitled to recover at the rate of $20 per week for a period of 401 weeks; that he was well advanced in years and by reason of his total, permanent incapacity, it would be a manifest hardship and injustice to compensate him otherwise than by a lump sum; that the company had failed to provide medical and surgical aid or pay hospital fees, and by reason of such failure he had employed a nurse at a reasonable and necessary expense of $50 to attend him in the hospital; that he was forced to undergo two operations as a result of his injuries, at a cost of $780.70. He prayed for judgment for these items in addition to $20 per week for 401 weeks.

By supplemental petition the company alleged : That the policies of insurance were not in effect at the time of the injuries sustained by Marshall, because they had been canceled by notice mailed' in accordance with the following provision of the policy: “Notice. mailed to the address of this employer shall be sufficient notice.” That notice of cancellation was mailed on March 29, 1927, and registered to the last known address of the drilling company, which notice informed the drilling company that the policy upon which the suit is based would be canceled as of noon April 9, 1927, which date of cancellation was four days prior to the date of the explosion by which Marshall was injured. As a further defense, the company alleged that Marshall’s contract of employment with the drilling company was void and unenforceable for the reason that it required him to work seven days per week, which included working on Sundays, by reason of which it was in violation of the statutes of Texas and null and void.

In reply to this pleading, Marshall alleged that if notice of cancellation was ever mailed on the 29th of March, 1927, it was never received by the drilling company and that said drilling company never had any notice, either actual or constructive, of such cancellation; that subsequent to the mailing of such notice, if any, the general agent of the company at El Paso stated to its local agent at Panhandle, Tex., that the notice of cancellation would not become effective until said local agent had secured another policy for the drilling company, in lieu of the policy now sued upon, and that said general agent told the local agent at Panhandle that the notice of cancellation might be disregarded until further notice from the company, and by such acts the company had waived and .abandoned its notice of cancellation and its intention to cancel the policy under notice of March 29, 1927; that said company further abandoned its intent to cancel the policy on April 9th by preparing and mailing a notice for cancellation on the 14th day of April, 1927, one day after Marshall had sustained the injuries upon which this action is based, which said notice stated that cancellation would be effective April 24, 1927; that the drilling company had paid all premiums due upon said policy to the local agent of appellant company up to and including the 19th day of Ajlril, 1927, which premiums were accepted and received by appellant company, thereby waiving its attempt to cancel said policy, effective April 9, 1927.

These allegations were denied by the appellant company. The case was submitted to a jury upon special issues, and in response thereto the jury found, in substance, as follows:

(1) On April 13, 1927, X E. Marshall sustained injuries resulting in the loss of hearing in his left ear and the loss and use of his left foot and leg.

(2) Such injuries resulted in Marshall’s permanent total incapacity.

(3) • The average weekly wage of Marshall for the year immediately preceding the date of the injuries was $80.75.

(4) The failure of the Maryland Casualty Company to máke a lump sum settlement would work manifest hardship and injustice to Marshall.

(5) That the Maryland Casualty Company, through its officers and agents, waived cancellation of the policy which was intended to take effect on April 9, 1927.

Based upon the verdict, the court rendered judgment in Marshall’s favor for $7,879.03. to be paid in a lump sum. The first five propositions urged attack the judgment upon the ground that because Marshall’s contract with the drilling company required him to labor on Sundays in violation of the law, the contract was void and would not sustain a recovery.

Article 283 of the Penal Code provides that any person who shall compel, force, or oblige his employees or workmen to labor on Sunday shall be fined not less than $10 nor more than $50, and article 284 provides that article 283 shall not apply to works of necessity. The term “necessity,” as used in this statute, is defined to be not an absolute, unavoidable, physical necessity, but rather an economic and moral neces’sity, and it is held that such necessity might grow out of or be incident to a particular trade or calling. Lane v. State, 6S Tex. Cr. R. 4, 150 S. W. 637 Hennersdorf v. State, 25 Tex. App. 597, 8 SW. 926, 8 Am. St. Rep. 448. Texas Employers’ Insurance Association v. Tabor (Tex. Com. App.) 283 S. W. 779, announces the rule that a contract of employment which does not conclusively show that it was intended that the employee should work on Sunday in violation of the .Penal Code referred to first above is not void as a matter of law, and that the question of intention to violate the law is an issue of fact for the jury. v

Many authorities hold that, where the terms of a verbal contract are established by undisputed testimony, its construction and interpretation is a question of law for the court. 6 R. C. L. 862, § 249. Ætna Eife Ins. Co. v. Schenck et al. (Tex. Civ. App.) 10 S.W.(2d) 206, holds that, where an employee working by the month was not engaged in the performance of services that ordinarily called for work on Sundajq but occasionally, if necessary, in the interest of the employer’s business, the employee would act to promote the master’s interest on Sunday, the contract of employment was not in violation of any law and occasional work on Sunday did not bar the right of dependents to compensation for employee’s death.

The only testimony bearing upon this contention comes from the employee, Marshall. He testified that his contract of employment with the drilling company and the nature of his work was such that it was contemplated that- he would work on straight time seven days per week; that it had to go on during seven days per week in that oil field especially. He stated, however., that he did not know that his contract specified that he should work on Sunday, and that there was no contract between him and his employer specifically requiring him to do so, but it was mutually understood that, when a well was started, it would be pushed through and the work would continue for seven days per week. Upon redirect examination, he testified that the drilling company did not ask him to work any specific length of time and that he was paid so much per daythat there was no written contract and he was not paid for such time as he did' not work; that if he worked one day, and missed the next, and worked the next day, he would be paid just for the days he worked. This testimony does not show a clear, definite contract which obligated or compelled Marshall to work on Sunday. It may reasonably be inferred that, unless he desired to work on Sunday, he was at liberty to refuse to do so without violating his obligation to his employer. His statement that in that particular oil field it was specially necessary to work on Sunday was not questioned by the appellant. It is a matter of common knowledge that, in the drilling of oil wells, certain conditions may exist oí-anse which -require the continuous prosecution of the work after an oil well is spudded in, and, so far as the record shows, we must presume, in the absence of some contradiction of Marshall’s testimony, that the necessity existed in this case. Where a contract is susceptible of two constructions, one of which would render it valid and the other illegal, the courts will construe it to be legal. The issue as to whether the work done on Sunday was necessary, within the meaning of article 284, was not submitted to the jury. We therefore overrule the first five propositions.

It is contended under the sixth and seventh propositions that the court erred in permitting the proceedings, including the award made by the Industrial Accident Board, to be introduced in evidence. The bill of exceptions in the record does not sustain these' propositions. This court held, in the case of Texas Employers’ Insurance Association v. Downing, 218 S. W. 112,120, that these proceedings were admissible for the purpose of hhowing that the court had jurisdiction of the case as appealed from the award of the board. The rule is that Marshall must show by his pleadings that the court in which the case is being tried had jurisdiction of the amount of his claim. He alleged that he filed the claim before the board for an amount in excess of $500. This was a proper allegation. In order for him to recover, he must prove what he alleged; but evidence of such matter is for the purposes of showing jurisdiction and is a question for the court only. The award should not be read to the jury. A perusal of the bill of exceptions in this case shows that Marshall’s counsel offered it for the purposes only of showing the court’s jurisdiction, and so stated during the colloquy between the court and counsel for both sides. .The bill further shows that these proceedings were not read within the hearing of the jury, and that they were filed with the clerk, to be considered only by the court, to sustain the allegation that a claim had been filed with the Accident Board in excess of $500. Bill of exception No. 6, taken to the action of the court in permitting Marshall to testify that he ha<j filed a claim for compensation with the Industrial Accident Board in excess of $500, shows that this testimony was given in the absence of the jury and for the sole purpose of establishing jurisdiction. Since the record does not sustain the contentions, the two propositions relating to this matter are overruled.

Dr. Southall, residing in Hutchinson county, was introduced as a witness by ap-pellee, for the purpose of testifying as an expert upon the issue of the reasonableness of the item, amounting to $780.70, which Marshall alleges he paid to some California surgeons for two operations upon his injured foot and leg. The appellant objected to this testimony uson one ground, amongst others, that the witness was disqualified to give his opinion, because the operations were performed in California, and the witness showed that he knew nothing whatever about usual and customary charges for such -services in the foreign state. The record shows that ap-pellee failed to request the submission of this issue to the jury. Such failure must be'construed as a waiver and abandonment of that ground of action. Ormsby v. Ratcliffe (Tex. Com. App.) 1 S.W.(2d) 1084.

Propositions 9 to 14, inclusive, challenge the action of the court in overruling appél-. lant’s objections to certain letters, telegrams, and conversations between Wayne O’Keefe and the general agents of appellant with reference to the cancellation of the policy of insurance by appellant. These propositions, except the tenth, are mere abstract statements of rules of law, which may or may not be correct. They do not complain of any error committed by the court,' nor is there any specification of error as required by the rules with reference to the matters complained of 'and are therefore not entitled to consideration. Mutual Life Insurance Association of Texas v. Lillard (Tex. Civ. App.) 5 S.W.(2d) 586, Barnes Bros. v. International & G. N. Ry. (Tex. Com. App.) 1 S.W.(2d) 273.

By the tenth proposition, the appellant insists that the court erred in admitting in evidence, over appellant’s objections, a letter written by the local agent of the insurance company to the company itself, insisting that there was no cancellation, as claimed by the insurance company, and that the insurance company had waived the cancellation.

If it be admitted that this statement in the letter was inadmissible, appellant is in no position to complain here, since other parts of the letter were clearly admissible. The objections made were to the letter as a whole, and it was the duty of appellant to separate the inadmissible portions of the letter from the remainder of it. It is not the duty of the court, nor the opposing counsel, when testimony is offered as- a whole, to separate the relevant from the irrelevant, or the competent from the incompetent, and as against a general objection the court does not err in admitting the whole instrument. The testimony which was objected to, and which is discussed in the argument following these propositions, related to the issue of the cancellation of the policy, which the appellant claimed had been effected by its notice of March 29, 1927, the purport of which was to cancel the policy as of April 9, 1927, four days before the date of the injury. Marshall ‘pleaded that no such notice had been given; that, if given, it had never been received, and had been waived by a later notice canceling the policy as of April 24th. This letter and these notices, together with the telegrams and the conversations which O’Keefe had with the general agents in B1 Paso, were all relevant testimony bearing upon the issues of cancellation and waiver. They were all facts forming part of the same transaction and as such were admissible under the res gestre rule. West Side Oil Co. v. McDorman (Tex. Civ. App.) 244 S. W. 167; Empire Gas & Fuel Co. v. Pendar (Tex. Civ. App.) 244 S. W. 184; Darby v. Farmers’ State Bank of Burkburnett (Tex. Civ. App.) 253 S. W. 341; H. & T. C. Ry. Co. v. Brooks (Tex. Civ. App.) 294 S. W. 282; Durham v. Scrivener (Tex. Civ. App.) 259 S. W. 606; Id. (Tex. Com. App.) 270 S. W. 161; Bourland v. Huffhines (Tex. Civ. App.) 244 S. W. 847.

The evidence conclusively shows that O’Keefe was the agent of the Maryland Casualty Company, within the meaning of R. S. art. 5056, which provides that any person who solicits insurance on behalf of an insurance company, or who takes or transmits, other than for himself, any application for insurance or any policy of insurance to or from such company, or who shall receive or deliver a policy of insurance for any such company, or receive or collect or transmit any premium of insurance, or do or perform any act or thing in the making or consummating of any contract of insurance for or with any such insurance company, shall be held to be the agent of the company for which the act is done or the risk is-taken, as far as relates to all the liability, duties, requirements, and penalties set forth in the chapter. The testimony shows that O’Keefe took the applications for policies, delivered the policies when written, collected the premiums, and was recognized by the company and its general agents at El Paso as the agent of appellant. He was specially delegated by Taylor, one of the general agents, to act with reference to these matters, and his acts, admissions, and declarations in regard thereto are admissible as a part of the res gestae and binding upon the corporation. Farmers’ Mill & Elevator Co. v. Hodges (Tex. Com. App.) 260 S. W. 166.

Appellant suggests fundamental error, in that the judgment fails to cancel the award of the Industrial Accident Board and fails to decree a recovery by Marshall of a lump sum. The recital in the judgment is “that Marshall do have and recover of said defendant in cross-action, Maryland Casualty' Company, the sum of $7,879.03, with interest thereon at the rate of 6 per cent, per annum from this date,” and awards execution. There is no provision in the judgment that it is to be paid in weekly installments, and we think the effect of it is that Marshall shall recover the whole amount awarded him in a lump sum. While the judgment may not in express terms cancel and annul the award of the Accident Board, that is its legal effect. In any event, it may be reformed here in both of these particulars.

Because the appellee failed to submit to the jury an issue upon his right to recover the item of $780.70 as surgeon’s fees and charges, the judgment is excessive in that amount, and will be reversed, unless the appellee enters a remittitur in this court in writing of said sum within the next 20 days. Failing in this, the judgment will be reversed, and the cause remanded for another trial. Otherwise, it will be affirmed.

On Motion for Rehearing.

By the original opinion, we affirmed this . judgment upon condition that the. appellee enter a remittitur of $780.70 within 20 .days. Both parties have filed motions for rehearing.

Upon a review of the record, we find that the court entered judgment for $7,879.03 in a lump sum, with interest thereon from the date of the judgment. This judgment evidently includes the item of $780.70, or a part thereof, which it appears was for surgeon’s charges and hospital fees paid by the appellee in California, incident to an operation upon his injured foot and leg. The record throws no light upon the question whether the court allowed the whole amount claimed for surgeon’s fees and hospital charges, or only a portion of these items. The only proof introduced upon this ground of appellee’s recovery was the testimony of Dr. Southall, a resident of Hutchinson county. While he testified that the charges were reasonable, he also stated that there was no standard of charges by surgeons generally accepted through the country; that each surgeon fixes his own compensation, and that the charges for such services depended upon the skill and ability of the surgeon, as well as upon the financial ability of the patient to pay; that one patient might be charged one amount, and that another patient, who was wealthy, was frequently charged as much as. ten times that sum for the very same services. These facts render the testimony of Dr. Southall so uncertain upon the issue of the reasonableness of the charges that it should not be accepted in support of the judgment, even though a Texas surgeon was otherwise qualified to testify as to the value of such services in a foreign state — an issue which we do not decide. In the case of Petroleum Casualty Co. v. Green (Tex. Civ. App.) 11 S.W.(2d) 388, Chief Justice Gallagher holds that competent proof of the reasonableness of such charges is necessary before a recovery can be properly awarded.

No issue was submitted to the jury as to the present value of the appellee’s claim, when paid in a lump sum. In other words, the jury was not asked to find what rate of discount should apply to the appellee’s claim in awarding a judgment for a lump sum. The statutes do not fix this rate of discount. The full amount of the appellee’s recovery, if paid weekly for 401 weeks at $20 per week, would have been $8,020, and while the record discloses that this amount was discounted at some rate, we are not able to determine what that rate was, and the rule seems to be that the rate of discount to be applied is a question of fact, to be determined in each case by the court or jury considering the facts. Texas Employer’s Insurance Association v. Herzing (Tex. Civ. App.) 9 S.W.(2d) 457; Lumbermen’s Reciprocal Association v. Behnken (Tex. Civ. App.) 226 S. W. 154; Id., 112 Tex, 103, 246 S. W. 72, 28 A. L. R. 1402; Consolidated Underwriters v. Saxon (Tex. Civ. App.) 250 S. W. 447; Id. (Tex. Com. App.) 265 S W. 143; Western Indemnity Co. v. Milam (Tex. Civ. App.) 230 S. W. 825.

Erom these decisions, the conclusion must be drawn that the court should not only submit to the jury whether the claimant is entitled to a lump sum settlement, and in the event the jury finds that the injured party is entitled to a lump sum settlement, then the issue should be submitted inquiring as to the rate of discount or the present value of the claim, if paid in a lump sum.

After a careful consideration of the motions for rehearing, we have concluded that the judgment is not supported by the findings of the jury, and that the court could not estimate the present value of the claim when paid in a lump sum, and because there is no finding as to what would be reasonable compensation for the California surgeon’s fees and hospital fees, the proper disposition to be made of the case is to reverse the judgment and remand the case for another trial; and it is accordingly so ordered.

Reversed and remanded.


author: LANE, J.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. COOPER.
    (No. 9233.)
    Court of Civil Appeals of Texas. Galveston.
    Jan. 21, 1929.
    Rehearing Denied Feb. 28, 1929.

      Hunt, Teagle & Moseley and C. A. Teagle, all of Houston, for appellant.
    Samuel Schwartz, of Houston, for appellee.
   LANE, J.

On the 26th day of November, 1926, Lula Sehoen Cooper, hereinafter referred to as Mrs. Cooper, was an employee of the Southern Pacific Building Company at Houston, Tex., which was a subscriber as that term is used in the Workmen’s Compensation Law of Texas, and which held a policy of compensation insurance issued by the United States Fidelity & Guaranty Company, hereinafter referréd to as the Guaranty Company. Mrs. Cooper was asserting that while in the course of her employment she suffered an injury, by reason of which she suffered a permanent loss of the use of her left wrist, and an injury to her right knee, which resulted in partial incapacity. She filed her claim for compensation in time and manner as required by law with the State Industrial Accident Board. On the 11th day of February, 1927, said Board made an award against her, denying her any compensation. No notice of dissatisfaction with such award was given. No suit was brought in court to set the same aside within the time allowed by law for filing such suits. On the 30th day of June, 1927, the award of the board was in some manner brought before the board for a review; the manner in which it was so brought is not clearly shown, but it is agreed that it was not before the board upon any allegation of fraud, mistake, or change .of condition in the claim. Upon the date last named, the board made the following order:

“On this the 30th day of June, A. D. 1927, -after due notice to all parties at interest, came on to be considered by the Industrial Accident Board question of review of order . made and entered herein under date of -Feb-: ruary 11, 1927, and the Board now finds and orders as follows:
“That it has not been established to the satisfaction of the Board that fraud was practiced in the procurement of said order, or that any change of conditions with reference to physical condition of the claimant disclosed, nor has any such mistake as contemplated by the law been shown to have been committed in the making of said order which would afford warrant for the Board to now undertake the making of change therein, but to the contrary mistake relied upon by claimant to procure a change in said order is merely that of judgment on the part of the Board which in effect means that said claimant is simply at this late hour seeking to procure a new trial of issues that have heretofore been determined and in line with which award has heretofore been made, and ■ therefore review of said order ought to be and the same is hereby in all things denied and refused and said United States Fidelity & Guaranty Company stands fully and finally acquitted and discharged from all liability on account of said claim for compensation, and it is so ordered, adjudged and decreed by the Board.”

Within 20 days after such order was made, Mrs. Cooper brought this suit in the ’district court of Harris county against the Guaranty Company for Her alleged damages by reason of said injuries.

Mrs. Cooper, in her petition, did not allege that any fraud or mistake existed in any matter or manner, nor that there had been any changed condition since the denial by the board of her first application.

The Guaranty Company denied generally and pleaded as a defense that the injury of which the plaintiff complained was caused by some prior disease from which she suffered, and not from any personal injury received while in the course of her employment.

The cause was tried before a jury upon special issues on the 14th day of February, 1928, in answer to which the jury found that Mrs. Cooper1 suffered the injuries, at the time and in the manner as alleged by her in her petition; that the accident alleged by 'plaintiff was the proximate cause of her injuries, and that such injuries proximately resulted in the total permanent incapacity of the plaintiff’s left wrist; that the injury suffered by the plaintiff to her knee did not totally and permanently incapacitate said knee, but it did result in permanent partial incapacity to such knee, and that by reason of such injury the plaintiff suffered partial disability to the extent of 29 per cent. .

Following the findings ,of the jury, the court rendered and caused to be entered judgment for the plaintiff against the United States Fidelity & Guaranty Company as follows :

“The Court finds from the pleadings and evidence in the record, that this cause is properly before this Court on an appeal duly taken and prosecuted by plaintiff, Lula Sehoen Cooper, who, at the time her claim accrued, and at the time the same was presented to and acted on by tbe Industrial Accident Board of the State of Texas, and at tbe time of filing tbis suit, was a widow, named Eula Scboen, and that since filing tbis suit sbe was lawfully intermarried witb Lindsay Cooper, wbo bas joined ber herein as co-plaintiff, pro forma; that sncb appeal was taken in accordance witb tbe law in sucb cases made and provided, from a final ruling and decision of tbe said Industrial Accident Board, made and entered by said board on the identical. claim and demand involved in this suit, on, to w;it, the 30th day of June, A. D. 1027; and tbe Court further finds from the evidence that the average weekly wages of the said plaintiff, Lula Scboen Cooper, to be made tbe basis of ber compensation herein, is tbe sum of seventeen and 50/100 ($17.50) dollars, and, accordingly, sbe is entitled to recover and be paid sucb compensation, at tbe rate of ten and 50/100 ($10.50) dollars per week, beginning on tbe eighth day following tbe date of her injury, to wit, tbe 26th day of November, A. D. 1920, none of which bas been paid to ber; and the Court further finds, that tbe said plaintiff has been represented heroin by Samuel Schwartz, an attorney of Houston, Harris county, Texas, and that plaintiff has contracted and agreed to allow him for bis fee and compensation one-third (⅞) .of the amount which may be awarded ber herein, and that sucb is a fair and reasonable fee for tbe services rendered herein by said attorney.
“It is therefore considered by tbe Court, that the order, decisions and rulings of the Industrial Accident Board of the State of Texas, heretofore at any time made, rendered and entered on the claim of said plaintiff, Lula Schoen Cooper, herein presented, be set aside, vacated, and annulled; and that the said plaintiff, Lula Schoen Cooper, is entitled to recover herein, for her own separate use and benefit, and for the use and benefit of her said attorney, Samuel Schwartz, Esq., compensation at the rate of ten and 50/100' ($10'.-50) dollars per week, for a period of five and three sevenths (5%) weeks on account of total incapacity, following her injury, and further compensation at the rate of ten and 50/100 ($10.50) dollars per week for a period of 150 weeks following the termination of total incapacity, for and on account of the permanent partial incapacity resulting from the injury to her left wrist and which the Court concludes is equivalent to the total loss of the use of her left hand; and further compensation at the rate of two and 10/100 ($2.-10) dollars per week, for a period of three hundred weeks, following the termination of total incapacity, for and on account of partial permanent incapacity resulting from the injury to her right knee and which the Court concludes is equivalent to the partial loss of the use of her right leg; together with interest on all past due installments from the respective dates of maturity thereof to this date, at the rate of six (6%) per cent, per an-num ; and that' of all sums so due and unpaid, as well as those which shall accrue in the future from and after the date of this judgment, one-third (⅛) thereof shall be paid Samuel Schwartz, as his compensation for legal services rendered herein; and it should be so ordered, adjudged and decreed by the Court.
“It is therefore ordered, adjudged, and decreed by the Court, that the plaintiff, Lula Schoen Cooper, do have and recover of and from the defendant, United, States Fidelity & Guaranty Company, the sum of nine hundred and thirty-three and 27/100 ($933.27) dollars, with interest from the date hereof at the rate of six (6) per cent, per annum until paid; and the further sum of ten and 50/100 ($10.-50) dollars, on the 4th day of April, A. D. 1928, and a like sum each successive week thereafter for a total period of eighty-three (S3) weeks, together with six per cent. (6%) interest thereon from each due date of such sum until paid; and further sum of two and 10/100 ($2.10) dollars on the 4th day of April, A. D. 1928, and a like sum each successive week thereafter for a total period of two hundred and thirty-three (233) weeks.” "

The Guaranty Company has appealed.

As a disposition of appellant’s third and tenth propositions favorable to it would dispose of the necessity of discussing other assignments or propositions at length, we shall first dispose of the same.

By propositions 3 and 10 it is substantially contended that, since it is shown that an award had been made against appellee by the Industrial Accident Board on the 11th day of February, 1927, and that she perfected no appeal in manner and form as required by law from such award to any court which would otherwise have had jurisdiction to hear and determine her suit, the filing of an application by her with the board six months after the first award was made, praying for a reopening of the cause and a reconsideration thereof by the board, in which application there was no allegation that since the first award was made there had been a change of conditions, or that any fraud had been practiced, or mistake made, the trial court had no jurisdiction to hear and determine the cause, and therefore the trial court erred in refusing appellant’s request for an instructed verdict in its favor.

We sustain the contention of appellant that, under the facts shown, the district court of Harris county was without jurisdiction to hear and determine the suit filed by appellee in that court. But we hold that in such case the only judgment which the court could have legally rendered was one dismissing the cause for want .of jurisdiction. Our conclusion is that under the facts showing that the court had no jurisdiction there was no issue to be submitted to a jury, and therefore the request of appellant for an instruction to the jury to find for it was properly refused. The judgment should have been, as above stated, one of dismissal of the cause.

By section 12d of article 8306, Revised Civil Statutes of 1925, it is provided that: “Upon its own motion or upon the application of any person interested showing a change of conditions, mistake, or fraud, the board at any time within the compensation period may review ⅜ * * or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall he only upon notice to the parties interested.”

As already stated, it is not clearly shown in what manner the question of review of the award of February 11, 1927, was brought before the Accident Board, but upon the trial" it was agreed by counsel for appellee that at no time in the proceedings involving the claim of appellee was there any claim made before the board of fraud, mistake, or change of conditions in the claim on behalf of appellee.

We think the effect of the order of the Accident Board of June 30, 1927, was to hold that by reason of the provisions of section 12d of article 8306, above quoted, it had no power to review the order made by it on the 11th day of February, 1927, since it had not been shown as a prerequisite to its power to review such order that fraud was practiced in the procurement of the same, or that any change of conditions with reference to the physical condition of the claimant had taken place, nor that any such mistake as is contemplated by law had been committed in making such order. After having so concluded, the board in its order clearly indicates that an application for the review of the former order was made by the claimant in these words: “But to the contrary, the mistake relied upon by claimant to procure a change in said order is merely that of judgment on the part of the board, which in effect means that said claimant is simply, at this late hour, seeking to procure a, new trial of issues that Imve heretofore been determined,.”

However, we think it immaterial as to how the question of review came before the board, as it, under the law, could not open the order of February 11, 1927, for a review except upon a showing of fraud, mistake, or changed condition; and the board so held.

In the case of Cone v. Texas Employers’ Insurance Association (Tex. Civ. App.) 251 S. W. 263, the above article of the Workmen’s Compensation Act was under consideration. In that case Cone had obtained an award of the board, from which neither party had appealed.- At a later date Cone filed an application before the state board to reopen the case and increase the award made in his favor. On appeal to the district court of Harris county the trial court made findings of fact, and, among other things, found that there had been no change of condition between the first award and the second, and that no fraud or mistake had been shown to have been committed by the insurance company, or by the Industrial Accident Board, and that the Industrial Accident Board was not laboring under a mistake of law or fact in making its first award. In his conclusions of law the trial court said:

“Under the above facts, I conclude that the Industrial Accident Board of the State of Texas had no jurisdiction or authority to reopen and review the case of said Cone and to make any further allowance therein, because there was no evidence to show any change of conditions, any mistake or fraud, and therefore said first ruling and decision was final and conclusive.”

On the appeal of the Cone Case the appellate court quoted section 12d of article 8306, and then said: “Under that article the hoard, on the application of ‘any person interested.’ may review its award only on a showing of ‘change of condition, mistake or fraud.’ No contention is made that appellant’s condition has changed, and the trial court expressly found that no mistake was committed, and no fraud perpetrated. * * ⅜ As the mistake, if any, was one of law, and not of fact, the court correctly concluded that the board had no authority to review its prior award.” See, also, Jones v. Casualty Reciprocal Exchange (Tex. Civ. App.) 275 S. W. 279.

Since the Accident Board refused to review the award of February 11, 1927, for want of authority to do so, neither the trial court nor this court has jurisdiction over the matter.

The conclusions reached by us-as above expressed require at our hands a reversal of the judgment of the trial court and the rendition of a judgment here of a dismissal of the cause for want of jurisdiction, and it is accordingly so ordered.

Reversed and dismissed.


author: LOONEY, J.

text:
    HARALSON v. CITY OF DALLAS et al.
    (No. 10491.)
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1929.
    Rehearing Denied March 16, 1929.

      Allen & Allen, of Dallas, for appellant.
    J. J. Collins, City Atty., A. A. Dong, W. Hughes Knight, and H. P. Kucera, Asst. City Attys., and Cockrell, McBride, O’Donnell & Hamilton, all of Dallas, for appellees.
   LOONEY, J.

L. G. Haralson, a citizen taxpayer, brought this suit for himself and others similarly situated to enjoin the city of Dallas, its board of commissioners and auditor, and the United States Cast Iron Pipe & Foundry Company, the successful bidder for the construction of certain water supply mains for the city, from consummating a contract for said improvements. At the conclusion of an exhaustive hearing, at which all material facts involved in the transactions were developed, the court denied plaintiff the temporary relief sought, from which he has appealed.

The propositions urged for reversal, .and our conclusions, both of law and fact, will be stated during the progress of the discussion.

Appellant’s first contention is that the. advertisement by the city, soliciting bids for the public improvement, was insufficient, in that bids were invited upon propositions not specified in or contemplated by the specifications, was inconsistent with the notice to bidders contained in the specifications, and violative of the charter of the city.

The board of commissioners of the city of Dallas adopted plans and specifications that contemplated the laying of supply mains in' connection with its Bachman station. These specifications are voluminous, stating in detail the nature of the project, the size, character, and quality of pipes and material to be used, the location of the lines, the amount of excavation necessary, the highways, streets and railroads to be crossed, etc., and were sufficiently full, comprehensive, and clear to admit of intelligent bidding for contracts to furnish the material only, or to do the work only, or to furnish both material and labor for a complete or “turnkey” job.

The provision of the specifications with which it is claimed the advertisement conflicts, reads:

“XII. Division of Contracts may l>e Made. Contract, or contracts, may be awarded for the work at the discretion of the Mayor and Board of Commissioners of the City of Dallas, Texas, either for the whole work or for any part thereof. Should such a division of contracts be made, however, it shall be either by lines as described, or by sizes of pipe specified for lines or parts of lines.”

The advertisement was published in the official paper of the city of Dallas, and in a number of engineer’s and contractor’s journals throughout the United States. Its alleged conflicting provisions are these: That is, it invited sealed bids separately, for furnishing material to be used in constructing the lines. for doing the work of installation, and for furnishing all material and constructing the lines complete. The advertisement also contained this paragraph: “This material and laying of lines shall be done in accordance with plans and specifications on file with J. R. John, Engineer of the Water Department, copy of which may be obtained on deposit of a cashier’s check of $25.00, this check to be returned on return of plans and specifications.” ■ -

The contention of appellant is that the specifications contemplated the letting of a contract for a complete job only, that the city was not unauthorized to invite bids for furnishing material only, or for doing the work only ; therefore, in view of the competitive bidding provision of the city charter, a bid filed in response to such an advertisement could not form the basis of a contract. The provision of the city charter invoked, in fact, all the law on the subject, is section 42 of article 14, as follows: “All contracts of whatsoever character pertaining to public improvements or the maintenance of public property of said city, involving the outlay of as much as $500.00, shall be based upon the specifications to be prepared and submitted and approved by the Board of Commissioners ; and after approval by the Board of Commissioners, advertisements for the proposed work, or matters embraced in said proposed ■contract, shall be made inviting competitive bids for the work proposed to be done

Thus it appears that the charter makes no requirement as to the form or contents of the advertisement, but simply prescribes that bids shall be advertised for the proposed work, or for the matters embraced in the proposed contract.

The matter of deciding upon a proper advertisement for bids was a question for the governing board of the city. As. the plans and specifications were sufficiently comprehensive and clear to admit of split or combination bids, as well as bids for a complete or turnkey job, we can imagine no reason why all these should not have been invited; in fact, we are of opinion that the city authorities, in calling for bids on these alternatives, not only acted properly within- the scope of their discretion, but exercised good judgment as well. Appellant does not contend that the advertisement was not full, clear, and understandable, the contention being that it was not in the form set forth in the specifications. We find no necessary conflict between the form of advertisement set forth in the specifications and the advertisement actually published ; but if this be conceded, still the governing board of the city had the right, if they s¿w fit, to .adopt another and different form, provided, of course, ■ the advertisement was sufficient to advise bidders in regard to the proposed work. It is not shown that any bidder was confused, that any one failed to bid, or that any one suffered injury because split or combination bids were invited. On the contrary, the advertisement produced a very liberal response, as 2 bids were filed to furnish material only, 6 were for the work only, and 15 proposed to furnish material and labor and complete a turnkey job. In situations such as this, where every bidder has an equal opportunity to bid on the same alternatives,- an invitation for split or combination bids, instead of being condemned, is, rather, commended. See Schwitzer v. Board of Education, 79 N. J. Law, 342, 75 A. 447, Wallace v. City of Louisa, 217 Ky. 419, 273 S. W. 720.

An advertisement that advises bidders, in a general way, in regard to the contemplated improvement, and refers to specifications, available to all, as was done in this instance, is sufficient. See 30 L. R. A. (N. S.) 220, and authorities cited, especially Arnold v. Ft. Dodge, 111 Iowa, 152, 82 N. W. 495; Jenny v. City of Des Moines, 103 Iowa, 347, 72 N. W. 550; Fullerton v. City of Des Moines, 147 Iowa, 254, 126 N. W. 159; Bozarth v. McGillicuddy, 19 Ind. App. 26, 47 N. E. 397, 48 N. E. 1042; Dixon v. Greene County, 76 Miss. 794, 25 So. 665.

If appellant’s construction of the specifications should be accepted, that is, that a letting for the entire or complete job only was permissible, still it is not conceived that any harm or confusion resulted to any one by also advertising for split or combination b'ids, as the bid actually accepted was for the entire work, and the contract sought to be enjoined is precisely of the nature that appellant says was the only kind justified by the specifications.

Appellant makes the further contention that the requirement in the specifications for a chemical analysis of cast iron from which pipes are to be manufactured, that is, to conform to a prescribed maximum and minimum content of sulphur, phosphorus, manganese and silicon, restricted competition, violated the competitive provision of the city charter, and was against public policy, for the reason that the United States Oast Iron Pipe & Foundry 'Company, the successful bidder, enjoyed such favorable freight rates that-no other manufacturer could compete with it for the work. Appellant does not contend that the test was placed in the specifications for the purpose of restricting competition or for any fraudulent purpose, the contention being that, although the test was prescribed in good faith, its effect was to restrict competition. This argument is based upon the assumption (which is not borne out by the facts) that the successful bidder was the only manufacturer in the United States that could compete for a contract to furnish the pipe required.

The trial court found, with ample evidence to sustain the finding that the chemical anal- , ysis test did not stifle competition, that the successful bidder was not tbe only manufacturer in tbe United States that was able and willing to perform tbe work and furnish pipe in accordance with tbe specifications, and this is conclusively established by tbe fact that there were six bids for tbe entire job that contemplated tbe use of cast-iron pipe fulfilling tbe chemical analysis test. Tbe object of tbe authorities in prescribing this test was to secure a high grade of cast iron, absolutely necessary, in view of tbe purpose and use to be served. It was imperative that iron pipe of minimum brittleness be used to guard against sudden breaks and resultant breakdowns of water supply, and tbe requirement was made only after a thorough investigation of tbe subject by tbe city engineer. He consulted scientific works, engineers, and waterworks men, north and east, including army engineers, tbe Bureau of Water Supply for Washington, D. C., and engineers of other cities, notably, of Providence, Rhode Island, New York, Boston, Baltimore, and Milwaukee, these cities having prescribed tbe same chemical test for cast-iron pipes for their water supply.

The city authorities, were, under the law, charged with the duty of securing the kind and character of pipes and material best suited for this project, and, having acted in good faith, it is not for this court, or any other court, to substitute its opinion for theirs in determining such a' matter.

Another contention of appellant is that the bid of United States Oast Iron Pipe & Foundry Company was vitiated, by an accompanying letter, to the effect that its proposal was conditioned on being awarded the entire job. The point made is that the letter made new stipulations not in harmony with the specifications that, in effect, took the bid without its terms.

As heretofore shown, the specifications provided that, at the discretion of the governing authorities of the city, contracts could be let, either for the whole work or for any part thereof by lines as described, or by sizes of pipe specified for lines or parts of lines. The bidder in question submitted a bid complete within itself, upon the form and in the manner provided in the specifications, which included. separate proposals for material and for installation. The bid was accompanied by the letter referred to, stating in effect that the proposal was for the entire job, or none at all.

The governing authorities of the city, after canvassing the bids,' decided that the one in question was the best and most advantageous, and accordingly awarded the contract for a complete or turnkey job. All contractors were invited to bid alike for a part or for the entire work, according to lines and sizes of pipe. There is no evidence of a lower bid, nor that any other bidder knew of or was controlled in any sense by the bid in question; hence it did not suppress competition, nor tend in the least to prevent any or as many as desired from bidding on a part or the whole job.

The authorities having reserved the right to award contracts, either for the whole or part of the work, were, in our opinion, fully authorized to accept the bid in question. A case in point is Beshear v. City of Dawson Springs, 214 Ky. 102, 282 S. W. 764; also see Williams v. Hybskmann (Mo. App.) 247 S. W. 203.

We therefore overrule all assignments and propositions urged for reversal, and affirm the judgment of the court below.

Affirmed.


author: FUNDERBURK, J.

text:
    HANKS v. MAGNOLIA PETROLEUM CO.
    (No. 498.)
    Court of Civil Appeals of Texas. Eastland.
    Dec. 7, 1928.
    On Rehearing, Feb. 1, 1929.

      Scarborough & Wilson, of Abilene, for appellant.
    W. H. Francis and A. S. Hardwicke, both of Dallas, and Conner & McRae, of Eastland, for appellee.
   FUNDERBURK, J.

This suit involves primarily a question of the proper construction of a written instrument, which, omitting 'signatures, reads as follows:

“This agreement, made and entered into this 17th day of November, A. D. 1908, by and between J. T. Miller, of the county of Stephens and state of Texas, party of the first part, and S. M. Hanks, of the county of Stephens and state of Texas, party of the second part, witnesseth: That the said party of the first part for and in consideration of the sum of one dollar to him in hand well and truly paidf the receipt of which is hereby acknowledged, and in further consideration of the covenants and agreements hereinafter mentioned does covenant and agree to lease and by these presents has leased and granted the exclusive right unto the party of the second part, his heirs or assigns, for the purpose of operating and drilling for petroleum gas, coal, gold, silver, copper or any other mineral or mineral substances, all of those certain tracts or parcels of land lying and being situated in Stephens county, Texas, and described as follows:
“First Tract. Being the E% of the NE% and the N½ of the SB1/! of section 17, Lunatic Asylum land.
“Second Tract. Being the NW% of section number 18, Lunatic Asylum land, all being the same land as conveyed to said J. T. Miller by J. W. Cooper and wife and said tracts of land containing altogether three hundred and twenty (320) acres more or less.
“The said party of the second part, his heirs or assigns to have and to hold the said premises for and during the term of one year from the date hereof and provided that if gas, petroleum, coal, gold, silver, copper or any mineral or mineral substance of any kind whatsoever is found within the said one year in paying quantities then in that event this lease shall continue so long thereafter as said product or products can be produced in paying quantities.
“It is especially agreed and stipulated by and between the parties herein that if any of the products herein named or any other mineral or mineral substances is found in paying quantities within the time herein specified, tp wit, within one year from the date hereof, then in that event the said J. T. Miller, party of the first part, and the said S. M. Hanks, party of the second part, shall become joint and equal owners of same, the party! of the second, part is to and has the right to remove any machinery, fixtures and buildings placed on said premises by party of the second part or those acting under him, and is not to put down any well on the land hereby leased within 200 yards of the buildings now on said premises without the consent of the said party of the first part, it is further especially agreed and stipulated that the said party of the first part is to fully use and enjoy the said premises for the purposes of tillage and pasturage except such part as shall be necessary for such mining purposes and the right of way over and 'across said premises to the place or. places-of mining or operating.
“The party of the second part agrees to commence operations within six months from the execution of this lease or in lieu thereof thereafter to pay to the party of the first part five cents per acre per month until wort is commenced.
“It is further agreed that the second party, his heirs or assigns shall have the right at any time to surrender this lease and be released from all moneys due and conditions unfulfilled then and from that time this lease and agreement shall bo null and void, and no longer binding on either party and the payments which shall have been made be held by the party of the first part as full stipulated damages for the nonfulfillment of the foregoing contract and all the conditions between the parties hereunto shall extend to their heirs and assigns.”

S. M. Hanks, the lessee or grantee in the foregoing instrument, brought suit against Magnolia Petroleum Company to recover judgment establishing his asserted right and title to one-half of the gas and coal in the land described in the instrument, and for a money judgment for one-half of the value of the gas taken from the land by defendant. The case was tried before the court without a jury, and, judgment being for defendant, plaintiff has appealed.

The court found that in 1909 Hanks, in compliance with the terms of the above contract, drilled a well on the land to a depth of 200 feet and discovered petroleum gas amounting to 1,000,000 cubic feet per day; that no further efforts were made to drill or prospect for or discover minerals, or to produce or market same after 1909; that, in fact, no minerals were ever marketed, there being no market at the time the well was drilled ; that Hanks, in 1909, capped the well and moved the drilling machinery from the land, but lias at all times since claimed a one-half interest in the gas in said land. .

The court further found, based upon agreement of the parties, that the fee title to the land, including all oil, gas, and other minerals, by regular chain of warranty deeds from the sovereignty of the soil, was in defendant, Magnolia Petroleum Company, charged only with such rights as plaintiff, Hanks, may have under the above-mentioned contract, J. T. Miller being one of the fee owners in defendant’s chain of title; that the defendant, Magnolia Petroleum Company, and its predecessors in title, have been in actual possession of said land for more than 10 years immediately preceding the filing of the suit on the 18th day of February, 1926; that defendant’s title came through an oil and gas mining lease dated October 2, 1916, executed by J. M. Rush and wife, which defendant owns by due assignment, and under which defendant entered upon said realty described in the lease and began the drilling of wells for the discovery of oil and gas, completing the first well November 5, 1920, which resulted in the production of oil and gas in paying quantities, and which drilling operations and the production of oil- and gas had continued up to the date of the trial.

The court further found that no gas was utilized from the lease until January 27, 1923, except such gas as was used for the operation of said lease; that from the 27th day of January, 1923, to December 5, 1927, both dates inclusive, the defendant, Magnolia Petroleum Company, produced and appropriated an average of 1,282,698 cubic feet of gas per day, of the market value of 6 cents per 1,000 cubic feet, at the mouth of the well, or of the value of. §76.90 per day; .that the defendant has continuously been in actual possession of said premises since prior to January 1,, 1921, drilling and producing oil and gas from said premises from that time to 'the date of the trial, and claiming to own fee-simple title to said minerals as against.every person whomsoever, and paid all taxes on said land and the minerals in and under the same as they accrued, and that defendant was in possession of said premises and all minerals at the date of the trial, producing such minerals from said land.

Cased upon the foregoing facts, the court concluded that plaintiff had lost his interest in the land by abandonment, and further that defendant had title to the minerals under the 5-year statute of limitation. The court also concluded that the defendant had good title to the minerals by regular chain of conveyances from the common source of title, and that the instrument hereinbefore set out cast a cloud upon defendant’s title, which the defendant was entitled to have canceled and removed.

Our construction of the instrument under which the plaintiff claims is that it granted to the plaintiff, S. M. Hanks, the exclusive right and option to enter upon the land and explore same for the discovery of any and all minerals therein for a period of time beginning with the date of the instrument and ending one year from said date. If such exploration resulted in the discovery of any minerals in paying quantities within said time, such fact constituted a condition precedent to the vesting in the said Hanks of an undivided one-half interest in the particular mineral or minerals thus discovered. The work of exploration and discovery was at the same time the consideration for the grant of said interest in minerals discovered. The estate thus conveyed upon condition precedent was not one by fee-simple title. After the happening of the condition precedent, the estate vested in Hanks was a determinable fee title to the one or more minerals discovered in paying quantities. The qualification to the estate thus granted, that has the effect of debasing it from an otherwise fee-simple title, is the limitation expressed in the instrument which reads: “If gas, petroleum, coal, gold, silver, copper or any mineral or mineral substance of any kind whatsoever is found within the said one year in paying quantities then in that event this lease shall continue so long thereafter as said :product or products can he produced in paying quantities.’’ (Italics ours.)

Under the findings of the court, the condition precedent was performed by the discovery within the time specified, of gas capable of being produced at the rate of 1,000,000 cubic feet per day. The further finding of the court that, at the time of the trial the lease was producing gas in paying quantities, shows that the estate consisting of the undivided one-half interest in the gas had not terminated under the limitation that thel estate was to continue “so long thereafter as said product or products can be produced in paying quantities.”

Appellant challenges the conclusion of the trial court that his title in and to one-half of the gas had terminated by abandonment of all operations for the discovery, production, and marketing of gas! We believe that this contention should be sustained. As regards the liability of an estate to termination or extinguishment by abandonment, there is no distinction between a fee-simple estate and one that is a determinable fee. “The owner of a determinable fee has all the rights of an owner in fee simple, with the same rights of user and power to commit unlimited waste.” Tiffany, Real Property, vol. 1, p. 336. The only distinction is: “If he conveys his estate, the grantee takes it, subject to the liability to termination as existed before the grant.” Id.

As said in Corpus Juris: “Until its determination such an estate has all the incidents of a fee simple, and while this estate continues, and until the qualification upon which it is limited is at an end, the grantee or proprietor has the same rights and privileges oyer his estate as if it was a fee simple.' He has an absolute right to the exclusive possession, use [italics ours] and enjoyment of the land and as complete dominion over it for all purposes as though he held it in fee simple.” 21 O. J. 923.

Ownership, as applied to a fee-simple title, means exactly the same as that term does when applied to a determinable fee title. In either case it means “* * * dominion of a thing real, * ⅞ * corporeal or incorporeal,” which one “has the right to enjoy and to do with as he pleases, * s * either to spoil or destroy it as far as the law permits, ⅜ * * unless he be prevented by some agreement or covenant which restrains his right. 29 Oyc. 1549.

Mere nonuser of a freehold estate of inheritance, which a determinable fee certainly is, cannot result in an extinguishment of the estate. Only in a case where a qualification in the nature of a limitation annexed to an otherwise fee-simple estate provides for a continued user, as, for instance, a continuation of drilling, producing, or' marketing of minerals, would the failure to drill produce or market terminate the estate. For instance, instead of the limitation to the estate which we are considering, and which we have above quoted, if the parties had provided, “shall continue so long thereafter as said product or products are being produced by the lessee in paying quantities,” the failure to produce in paying quantities would terminate the estate, not because of an abandonment, but because of the happening of the condition that was to mark the end of the estate. “The qualification on which the estate is to determine must be found in the instrument creating the estate.” 21 O. J. 922.

There is wholly absent from the instrument under consideration any provision that the estate is to continue only so long as the lessee continues work of exploration, production, or marketing of the products. In the early case of Dikes v. Miller, 24 Tex. 417, at page 424, the Supreme Court had occasion to consider what character of estates were liable to extinguishment by abandonment. It was said: “Easements and incorporeal rights annexed to land, may be lost by abandonment. -So may an incipient right to land, as a location and survey, or other merely equitable title, not perfected into a grant, or vested by deed. 4 Kent, Com. 448; [Hatch v. Dwight] 17 Mass. 297 [9 Am. Dec. 145]; [French v. Braintree Mfg. Co.] 23 Pick. [Mass.] 215 [216]; [Philips v. Shaffer] 5 Serg. & R. [Pa.] 215; 2 Hilliard on Real Property, 3, 12, 13, 79, 98. Legal rights, when once vested, must be divested according to law, but equitable rights may be abandoned.”

It will be observed that the instrument under consideration lacks some of the technical requirements necessary at common law to constitute a deed. It clearly evidences, however, an intent to vest in Hanks, upon the happening of a named contingency, a one-half interest in the minerals discovered, in place, and this is sufficient. The courts of this state are clearly committed to the view that an instrument which has for its purpose the vesting in a grantee of the exclusive right to take and use minerals constitutes the conveyance of an interest in land. Texas Co. v. Daugherty, 107 Tex. 229, 176 S. W. 717, L. R. A. 1917F, 989; Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 292, 29 A. L. R. 566.

It is provided in R. S. 1925, art. 1291: “Every estate in lands which shall thereafter [hereafter] be granted, conveyed or devised to one, although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.’'

If, then, without the limitation mentioned, -the estate would, under the operation of this statute, be a fee simple, it would seem to follow that, although by the limitation the estate is made a determinable fee, it is certainly that, regardless of the want of formal words of conveyance deemed necessary at common law. In so far, therefore, as the judgment of the court is predicated upon the conclusion that appellant had abandoned his interest in the land, we think the same is erroneous.

It remains to consider the question of limitation. We have found it difficult to reach a satisfactory conclusion as to the extent, if any, or conditions upon which, the appellant Hanks is chargeable with notice of the registration of the lease under which defendant claims title to the minerals. Hanks and his grantor, *Miller, were, after the discovery of gas in paying quantities, tenantsi in common of the gas in place in the land. Would a subsequent conveyance by Miller of more than a one-half interest in the gas be constructive notice to Hanks that he or his grantee were claiming adversely to Hanks? Authority seems not entirely wanting that the mere registration of such deed constitutes notice. Clayton v. Humble Oil & Rfg. Co. (Tex. Civ. App.) 291 S. W. 601.

Very good authority will be found in support of the proposition that, where one tenant in common executes a deed purporting to convey the entire premises to a third person, who enters into possession thereof, claiming title to the whole, this will’ constitute disseiz-in of tbei cotenants and after the expiration of the statutory period will bar the right of the cotenants to recover. McBurney v. Knox (Tex. Com. App.) 273 S. W. 819; Olsen v. Greele (Tex. Civ. App.) 190 S. W. 240; Olsen v. Grelle (Tex. Com. App.) 228 S. W. 927.

We believe, however, that even so broad a statement of the rule as this must be applied with some discrimination to a state of facts similár to one before us. In White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St Rep. 875, it is said: “The object of all the registry acts, however expressed, is the same. They were intended to affect with notice such persons only as have reason to apprehend some transfer or incumbrance prior to their own, because none arising afterwards can, in its own nature, affect them; and after they have once, on a search instituted upon this principle, secured themselves against the imputation of notice, it follows that every one coming into their place by title derived from them may insist on the same principle in respect to himself. It is a general rule that when once a man has granted away his right, anything which he can do or say shall never be received to affect another claiming under him.”

In Gann v. Phillips (Tex. Civ. App.) 268 S. W. 1060, the court-holds that a lienholder is not affected with notice of subsequently recorded deeds or of actual possession of the vendees under such deeds.

In Freeman v. Pierce (Tex. Civ. App.) 250 S. W. 778, it is held that the giving and recording of deeds of trust on the entire property by one tenant in common cannot be said to give notice of adverse claim to other co-tenants.

In Leonard v. Benfford Lumber Co., 110 Tex. 83, 216 S. W. 382, the Supreme Court remarked that our statute bears a settled construction, under which registration of an instrument carries notice of its contents only to those .bound to search for it, among whom are subsequent purchasers under the grantor in the recorded instruments.

In Biswell v. Gladney, 213 S. W. 256, the Commission of Appeals holds that a purchaser of a mortgage note is required to look only to the record to ascertain whether the mortgagor had a good title at the time the mortgage was executed, and whether the mortgagee has released the lien in whole or in part or made any other contract affecting if, and he is not bound to search the records to ascertain subsequent * conveyances by the mortgagor and no duty arises as to subsequent vendees of the mortgagor until he has. actual notice of such conveyance.

In Werts’ Heirs v. Vick (Tex. Civ. App.) 203 S. W. 63, it is said: “The owner of the land is not required to constantly examine the records, to ascertain whether some one has placed of record some instrument affecting his title. If possession of the land is disturbed, he is bound by notice of such fact, and by virtue of the limitation statutes may then be said to be affected with notice of the claim evidenced by the deed under which the possession was taken.”

In Lynch v. Lynch (Tex. Civ. App.) 130 S. W. 461, it is held that registry of deeds alone from one tenant in common to his wife is not notice to the other cotenants, being the grantor’s children.

If a purchaser is not chargeable with notice of conveyances, except such as are made prior to his purchase by his immediate vendor, or any remote vendor through whom he derives his title, how can one cotenant be chargeable with a subsequent conveyance by another cotenant? The answer, we think, must be that registration only is not notice. In such case a cotenant becomes chargeable with notice of the terms of another cotenant’s registered conveyance only because he finds a stranger in possession of his lands, and thereupon becomes charged with the duty of making proper inquiry to ascertain by what authority the possession is held. The fact of. possession raises the question: Does the stranger hold as a cotenant by virtue of having succeeded-only to the estate of the former cotenant and which would render his possession, therefore, not necessarily adverse; or does he claim by some other right which may be adverse? The raising of the question imposes the duty to search the records, and the law charges knowledge of all the records show. If the record shows that the stranger in possession holds under a conveyance of only such interest as the former cotenant had, then in the absence of actual notice to the contrary, or other facts from which notice of an adverse claim will be presumed, the statute of limitations will not begin to run. If the record shows that the possession is held under a muniment of title purporting to convey the entire interest in the property, this constitutes notice of the adverse claim.

The question may be regarded as settled-.that, after a severance of the mineral estate in land, the possession of the land by a grantee of one of two’ or more cotenants, even though the conveyance to him purports to convey the entire interest, does not charge the other cotenants with notice of an adverse claim to the minerals so as to start the running of limitations. Wallace v. Hoyt (Tex. Civ. App.) 225 S. W. 425; Southwestern Lumber Co. v. Evans (Tex. Civ. App.) 275 S. W. 1078; Prince v. Frost-Johnson Lumber Co. (Tex. Civ. App.) 250 S. W. 785 ; Lyles v. Dodge (Tex. Civ. App.) 228 S. W. 316.

The (application of this principle, we think, requires us to hold that drilling operations on the part of appellee for the production of oil or any other mineral than those in which appellant was granted an interest by virtue of his prior discovery of same, would not constitute notice of an adverse claim to the gas in the land. Only the “actual, continued, visible, notorious, distinct, and hostile” possession of the'gas, could result in a bar of appellant’s interest by limitations. We do not think that the court’s findings, which must be looked to for support of the judgment, show such adverse possession, at least, prior to January 27, 1923, the time when appellant began to utilize the gas for commercial purposes. Nor do we think there is any evidence showing such distinct appropriation of the gas, prior to that time, as would support a finding of adverse possession. The judgment of the court being based upon a finding of five years limitation, it will be seen that such period necessarily covers some time prior to January 27, 1923, since the suit was filed February 18, 1926.

The registration of the lease from Rush and wife to the predecessors of appellee is, we think, of little or no value on the question of notice of an adverse claim by appellee. Should it be conceded that appellee took such possession of the gas as to impose upon appellant the duty of inquiry, a search of the records would not have shown with certainty that appellee claimed the entire interest in the gas. The grant to appellee made by the lease under which it claims title to the minerals was of “all the oil, gas and other minerals in and under” the land, “to which the grantors have good title.” The succeeding words of warranty may render the identity of the interest conveyed somewhat ambiguous, but we question if the very fact of ambiguity would not destroy the conclusiveness of the lease as notice of an adverse claim. It seems to us that the presumption ought to obtain that one cotenant would not attempt to convey more than his individual interest, and when the other cotenant, upon making an investigation to see if he had done so, found that the conveyance was susceptible to a construction in harmony with the presumption, it ought not to be held conclusive, at least, of notice to'the contrary.

We have, therefore, reached the conclusion that, as to the question of limitation, it is necessary to reverse and remand the case; and it is accordingly so ordered.

Reversed and remanded.

On Rehearing.

Appellee insists that the effect of our opinion is that Hanks would, after discovery of minerals within the specified time, thereafter continue to have exclusive right, even as against the other tenant in common, to operate and produce same, and that, if ]he chose not to do so, Miller and his assigns would thereby be deprived of such benefits of their ownership of the other one-half interest as would result from production. We do not hold that, after discovery of minerals within the specified one year’s time, Hanks continued to have the exclusive right to explore for and produce the minerals. On the contrary, it is our view that, as to such minerals as were discovered in paying quantities within the year, Hanks and Miller became tenants in common, each owning one-half of such minerals, without any working agreement, thereafter operative. The “exclusive right” granted by the instrument to Hanks was limited to one year’s time, when it wholly ceased. If thereafter Hanks had any interest in the land, it was that of a tenant in common as to one-half of the minerals discovered and as to which he had no other or different rights than the other cotenant. After the one year’s time and the discovery of minerals, only a very few of the contractual provisions of the grant remained operative. The term of the grant, the right and duty of Hanks to remove machinery, buildings, etc., and the reservation of certain surface rights to Miller would constitute almost a complete list of such provisions remaining in operation after Hanks became vested with a one-half interest in minerals discovered.

The provision of the lease which, in our opinion, completely distinguishes its nature from those construed by the Supreme Court in Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 290, 29 A. D. R. 566, and Texas Co. v. Davis, 113 Tex. 321, 254 S. W. 304, 255 S. W. 601, and like cases, is that reading: “* ⅜ * If any of the products herein named * ⅜ ⅜ is found in paying quantities within the time herein specified, to wit, within one year from the date hereof, then, in that event the said J. T. Miller * ⅜ * and S. M. Hanks * ⅜ * shall become joint and equal owners of the same.”

Without this provision we would hold, under authority of the above decisions of the Supreme Court, that the instrument by its execution and delivery vested immediately title in the minerals. It is undeniable, however, that such effect is one resulting from construction, rather than express-provisions. But the clause last above quoted carries positive negation that the title vested in the beginning. To give effect to this portion of the instrument it must be construed to show that title vested only when minerals were discovered, and expressly upon condition of this discovery within a specified time.

On the question of limitation appellee very forcefully emphasizes the contention that the findings of the court which are unchallenged include every fact which even we hold to -be necessary, in order to show the bar of appellant’s suit by the five-year statute of limitation. The trial court found that defendant had fee-simple title to thei land, including the gas (except as affected by appellant’s rights), and that under a lease from an assignee of Miller the appellant in 1920 “began the drilling of a well for oil and gas and continued the drilling of wells on said realty for the discovery of oil and gas, until 10 wells had been drilled, the first of such wells having been completed on November 5, 1920, which resulted in the production of oil and gas in paying quantities and thereafter continued the drilling of oil and gas wells on said premises until four wells had been completed during the year 1921, which resulted in the production of oil and gas in paying quantities. ⅜- * ⅜ Defendant has continuously been in actual possession of said premises since prior to January 1st, 1921, prospecting, drilling, and producing oil and gas from said premises continuously to the present time and claiming to own the fee simple title to said minerals in and under said lands as against every person whomsoever, paying all taxes on said lands, and the minerals in and under same as the same accrued and is now in possession of * * * all minerals and iiroducing sueh minerals from said land * * * that the original petition of plaintiff was filed on the 18th day of February, 1926.”

Such findings are based upon, and are in the language of, an agreement as to the facts, signed by appellant’s counsel. In our original opinion we construed a further finding that “no gas was utilized from this lease until January 27, 1923, except such gas as was used for the operation of said lease,” as so limiting the finding above stated as to leave the finding uncertain that there had existed for the requisite time that open and continuous adverse possession necessary to constitute a bar. After further consideration we have decided that the proper construction of the finding last quoted does not justify the conclusion that it limits the other findings in any material respect. To so hold would, no doubt, subject the opinion to the criticism that we had decided that there could be no adverse possession of minerals, in the absence of the use of same off the premises where produced. We do not intend so to hold, and, being of the opinion that appellant has agreed to all the facts necessary to show limitation, the judgment of the court in so far as based thereon should be affirmed.

Appellee’s motion for rehearing is therefore granted, our former judgment reversing and remanding the cause will be set aside, and the judgment of the trial court will be affirmed.