text:
    YORK v. HOLT.
    No. 14130.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 25, 1940.
    Braswell & Perfect, of Paris, for appellant.
    R. E. Eubank, of Paris, for appellee.
   DUNKLIN, Chief Justice.

On December 11th, 1937, on the application of the county attorney of Lamar County, John William Brent Holt, a minor trader the age of 16 years, was by' Judge George P. Blackburn, district judge of Lamar County for the 6th judicial district, declared to be a dependent, and his care and custody was awarded to his uncle, John Nichols Holt, a resident citizen of Lamar County. On August 21st, 1939, the uncle filed with Honorable Newman Phillips, district judge of Lamar County for the 67th judicial district, his duly verified application for a writ of habeas corpus to have the child taken from the custody of Mrs. A. B. York, respondent, and brought before the court and his care and custody ordered restored to the relator. His right to that relief was based on the former decree of the district court of the 6th judicial district, with allegations that under that decree relator had the care and custody of the minor, who is now 12 years old, until August 19th, 1939, when he was permitted to visit his grandmother, Mrs. A. B. York, who thereafter refused to permit him to return to the custody of relator, all without lawful cause and in fraud of relator’s right to such custody.

The application for the writ of habeas corpus was presented to Judge Phillips on August 21st, 1939, who thereupon at first endorsed on it an order setting a day for its hearing, but before delivery thereof to the clerk of the court, he changed it and directed the issuance of a' writ directed to the sheriff commanding him to get the child and return him to the custody of the relator, in response to the amended prayer therefor made by relator at the suggestion of the judge, because the latter then knew of the former order of' Judge Blackburn, awarding custody of the child to relator.

On the same day, to-wit, August 21st, 1939, custody of the child was by the sheriff restored to relator, in obedience to the writ issued by the clerk of the court on that order.

On August 23rd, 1939, respondent, Mrs. A. B. York, grandmother of the child, joined by her husband, A. B. York, filed het verified motion to have Judge Phillips set aside his order awarding custody of the child to relator, and grant a rehearing of the latter’s application for the writ of habeas corpus, which was overruled, on August 31st, 1939; and from that ruling respondent has prosecuted this appeal.

The grounds alleged by respondent in the motion for rehearing of the application for the writ were, in substance, as follows: (a) Respondent was not given an opportunity to appear and answer the application, and for that reason the order made was not binding on her. (b) The petition for the writ was insufficient as a basis for its issuance for lack of a necessary party plaintiff, in that the copy of Judge Blackburn’s order, which was attached to the petition for the writ as an exhibit, shows on ita face that he placed the care and custody of the child in Mr. and Mrs. John Nichols Holt, jointly, and the application for the writ was by the husband alone, (c) The order was made on an ex parte hearing of the application therefor, without evidence introduced in support of it. (d) "The court erred in peremptorily entering the order and judgment complained of herein for by so doing he precluded respondent from making any defense to said action, respondent having a meritorious defense to the same in that she could have shown to the court that the said John Nichols Holt was not holding the said minor, John William Brent Holt, by and through any valid judgment or order of any court; that injustice has been done respondent by said order and judgment and that if this court had heard this cause upon its merits a different result would have been obtained.”

Those grounds are brought forward in appellant’s briefs as assignments of error upon which a reversal is sought.

No evidence was introduced upon a hearing of the motion for new trial. But upon respondent’s motion therefor the court filed findings of facts, recited above, which are not challenged.

It is a well settled rule of decisions that in a proceeding of the character of this suit the paramount and controlling issue to be determined is the welfare of the child, and in whose custody his best interests will be achieved. The rights of conflicting claimants of his custody are to be determined as in other civil actions, by courts exercising broad equitable powers. 21 Tex.Jur., pp. 473-478. And in paragraph 53, p. 478, this is said:

“In rendering , its judgment the court may award the custody of the child to one of the claimants or to some other proper person. It may also make the judgment effective by enjoining interference with the custody awarded. A judgment of this kind is res adjudicata of the facts existing at the time thereof, regardless of whether the decree was made in term time or in vacation, or whether it was rendered outside the county of domicile or by a foreign tribunal.
“When the circumstances have changed, however, a new suit may be brought, and the prior decree is not dispositive of rights under the changed condition.”

Respondent has no property interest in the custody of the child; and the grounds alleged in her motion for a new trial in the court below were insufficient as against a general demurrer to show right of a rehearing of relator’s petition for the writ of habeas corpus, for the following reasons: there is lack of allegation of any facts showing that since Judge Blackburn awarded custody of the child to relator upon a finding that he was a dependent and relator was a proper custodian of him, conditions have so changed that relator is no longer a proper custodian; and further, that respondent is able to properly care for and support him, and that it would be for his best interest to award his custody to her.

General allegations in the motion of the same character and purport of those specifically embodied in the paragraph copied above from the motion for new trial were mere conclusions and too general to serve as allegations of facts, while allegations of facts in relator’s petition for the writ were sufficient to show he still is a proper custodian of the child. 31 Tex.Jur., par. 123, p. 134, and par. 128, p. 140.

Appellant’s complaint of insufficiency of the petition for the writ because of failure of relator’s wife to join with him is without merit in the absence of any suggestion to the contrary, since it would be conclusively presumed that the custody awarded to relator would be shared by his wife, equally with him, at all events.

All assignments of error are overruled, and the judgment complained of is affirmed.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    RENFRO DRUG CO. v. LAWSON.
    No. 2018.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 27, 1940.
    Rehearing Denied Oct, 25, 1940.

      Lyndsay 'D. Hawkins, of Breckenridge, and Cofer & Cofer, of Austin, for appellant.
    Floyd Jones, of Breckenridge, and J. A. Kibler, of Waco, for appellee.
    Harry I. Freedman and Spafford & Spaf-ford, all of Dallas, and McKay & Avery and Thomas B. Gréenwood, all of Austin, amici curiae.
   FUNDERBURK, Justice.

A. R. Lawson, a resident of Stephens County, sued Renfro Drug Company, .a corporation, having its residence in Travis County, Texas, to recover damages for the alleged publication and circulation by 'means of sale and offering for sale, at a news stand in its drug store, copies of a magazine containing pictures and an article constituting a libel of Louise Lawson, a deceased daughter of plaintiff. The defendant duly filed plea of privilege, which was controverted on the ground that the suit was one for libel and that the plaintiff was a resident of Stephens County, the county in which the suit was filed, at the time of the accrual of- the cause of action. R.S.1925, Art. 1995, exception 29. The issue of privileged venue being tried, .the court overruled the plea of privilege, to which action the defendant excepted and has appealed. The parties will be referred to as plaintiff and defendant, the same as in the trial court.

It seems to be agreed that under authority of Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, the plaintiff had the burden, among other things, of establishing the existence of the alleged cause of action. The defendant, in effect, contends that no such cause of action was shown by the evidence because under the law no such cause of- action could exist. We take it to be now settled by the decisions in this State that in a libel suit proof that the plaintiff was a resident of a particular county at the time of the accrual of the cause of action, within the meaning of said exception 29, includes proof of the existence of the cause of action.

The first question for decision is whether a father may have a cause of action to recover damages for the publication or circulation.of a libel which, as a defamation or injury to reputation, refers alone to a deceased daughter.

In 1901, at a time when causes of action to recover damages for libel in civil actions had long been recognized by law in this state, and criminal libel had long been defined and prohibited by the Penal Code, the Legislature enacted a statute, the purpose of which, as shown by its caption, was “to define civil libel, to declare certain newspaper reports to be privileged communications; to allow certain matters to be pleaded and proved in mitigation of exemplary damages in civil libel cases, and to declare an emergency.” General Laws, Regular Session, 27th Legislature, c. 26, p. 30. The emergency declared was the recited fact that “there is now no law in this State defining libel and privileged publications.’’ Id., § 5. A special provision of the Act read thus: “Nothing in this act shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel, nor shall this act affect any suits now pending, or that may hereafter be brought upon a cause of action arising prior to the taking effect of this act.” Id., § 4. The definition so prescribed was as follows: “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one.” Id., § 1. This definition supplemented in the 1911 revision of the civil statutes by the clause “or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury” (R.S.1911, Art. 5595), has remained unchanged down to the present time. R.S. 1925, Art. 5430.

While prior to said Act of 1901 there was no statutory definition of libel as applicable to civil actions, the common law was in effect by statutory adoption made January 20, 1840. Said adoption provision is now R.S.1925, Art. 1. Referable to such adoption of the common law.was the recognition by the courts of this State of the existence of civil causes of action for libel. The adoption of the common law included, of course, the adoption of common, law 'definitions of libel. When, therefore, the Legislature stated as the emergency for the immediate effectiveness of said Act that “there is now no law in this State defining libel,” etc., it is reasonably to be inferred that it was meant there was then no statute law in this state defining libel, which was true, rather than that there was no definition of libel by any law in this state, which would have been untrue. There is thus naturally suggested the question: Did the Legislature, under such circumstances, merely, by adopting a statutory definition of libel,' intend to create by such statute a character of cause of action not theretofore existing? If such was the intention, it not being expressed, must be inferred or implied from the terms of the statute.

It may be conceded that if the definition so prescribed by the statute had been materially different from the definition at common law the Act itself would have evidenced an intention to change the common law. But, it is contended, by the defendant that the statutory definition Was, in substance and effect, only a re-affirmation of a common law definition. We think the authorities relied upon sustain this contention. 18 American & English Encyclopedia, p. 968; 17 R.C.L. p. 262; Kent’s Commentaries, vol. 2, p. 17; Cohen v. New York Times, 153 App.Div. 242, 138 N.Y.S. 206; Jacksonville Journal Co. v. Beymer, 42 Ill.App. 443; White v. Bourquin, 204 Ill.App. 83.

It is further contended, and we think fully supported by the authorities cited, that the common law, although the element of defamation of the dead was a part of the definition of libel, yet denied a right of action to recover in a civil action damages therefor in the absence of any injury to the reputation of one by or for whom an action was brought. 37 C.J. § 295, p. 11; Skrocki v. Stahl, 14 Cal.App. 1, 110 P. 957; Saucer v. Giroux, 54 Cal.App. 732, 202 P. 887; Bradt v. New Nonpareil Co., 108 Iowa 449, 79 N.W. 122, 45 L.R.A. 681; Fleagle v. Downing, 183 Iowa 1300, 168 N.W. 157; Sorensen v. Balaban, 11 App.Div. 164, 42 N.Y.S. 654; Wellman v. Sun Printing, etc., Ass’n, 66 Hun 331, 21 N.Y.S. 577; In re Fleming, 223 App.Div. 849, 228 N.Y.S. 544; Eagles v. Liberty Weekly, Inc., 137 Misc. 575, 244 N.Y.S. 430.

The conclusion is a reasonable one, we think, that the only purpose of the Legislature expressed or implied in the Act of 1901, in the respect under consideration, was simply to make a common law definition of libel in civil cases a matter of statute law, just as the definition of libel in criminal cases was and had long been a matter of statute law.

If a cause of action had existed at common law in favor of one to recover damages. for libel consisting alone of a defamation tending to blacken the memory of the dead, then such cause of action already existed in this state by reason of the aforesaid prior adoption of the common law. i' Even in the absence of such prior adoption it could .reasonably- be argued that said Act of 1901 in adopting the common law definition of libel implied the adoption of the common law itself so far as affected by such definition. But the statutory adoption of the common law definition without the expression of any intention to change the existing legal effect of same, instead of implying an intention to change the law, rather implied that the law was to remain unchanged.

, The caption to said Act of 1901 gave no notice of any purpose to repeal or amend any law except, of course, as the necessary result of the declared definition. No change having been made in the definition except to make it a .matter of statutory declaration, it necessarily follows, we think, that there was no change intended in the law.

Prior to the Act of 1901 it was a perfect defense to any suit for libel that there had been no defamation of, or injury to the reputation of the plaintiff (or one for whom the plaintiff sued). If the Act had the effect as contended by the' plaintiff, such defenses were taken away. But the statute expressly provides that “Nothing in this act shall be construed * * * to take away any existing defense to a civil action for libel * *

It is to be borne in mind that the statutory definition of “libel” is not in itself sufficiently comprehensive to include all the essential elements of a cause of action for libel consisting’ alone of a “defamation * * * tending to blacken the memory of the dead.” More patently is this true as to a cause of action against one not committing the libel, other than by circulating it. The common law must be looked to in any such case for elements of a right of action. Essential to a right of .action for libel given by the common law or any statute, unless the one under consideration does so, is injury to the reputation of the plaintiff or one for whom plaintiff sues. If a cause of action is to be raised by implication, what is to be substituted for this and other elements? If injury to reputation is not to be the means of identifying the persons having the right of action, how are they to be identified? It is no answer, we think, so say that injury other than to the reputation of him who asserts, or for whom is asserted, the cause of action, is sufficient. There must necessarily be limitations and conditions which no court can supply without usurping legislative power. Take, for example, a loved personage like Will Rogers. Suppose ten or fifteen years after his death a defamation is published tending to blacken his memory. Who would be injured? In a sense, of course, thousands of his friends and admirers would be injured. But what authority would any court have to select from such thousands certain persons or classes and declare that they only had suffered a legal or compensable injury? If the statute did not impliedly exclude any intention to create a new cause of action, which we think it does, there would nevertheless be no basis for implying the essential elements of a cause of action not existing at common law, or by any other statute. This we take to have already been decided in Houston v. Interstate Circuit, Tex.Civ.App., 132 S.W.2d 903.

We are also of the opinion that if plaintiff had any cause of action against the defendant it was for circulating the libel. The evidence justified no other conclusion than that a sale and delivery of the magazine was, under the circumstances, necessary to show a circulation. The only sale and delivery shown by any evidence was of one copy to plaintiff’s attorney after he was employed to bring the action. The only circulation of which there was any evidence was, therefore, we think, also shown to have been solicited or induced by the plaintiff through his attorney and is in law insufficient under the circumstances. 36 C.J. p. 1224, § 171: Id., p. 1230, § 189; Id., p. 1246, § 215; Patterson & Wallace v. Frazer, Tex.Civ.App., 79 S.W. 1077; Moore v. Leverett, Tex.Civ.App., 33 S.W.2d 838.

We are, therefore, of the opinion that the trial court erred in overruling the plea of privilege; that'the judgment should be'reversed and the venue of said' cause transferred to a district court of Travis County, and it is accordingly SO’ ordered.


author: BROWN, Justice.

text:
    TRADERS & GENERAL INS. CO. v. RICHARDSON.
    No. 14113.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 4, 1940.
    Rehearing Denied Nov. 15, 1940.

      Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.
    Leake, Henry, Young & Golden- and J. Manuel Hoppenstein, all of Dallas, for defendant in error.
   BROWN, Justice.

This is a workmen’s compensation case. The record is voluminous and the issues presented have arisen in many cases during the last few years.

For these reasons, we will not discuss all of the points, but will attempt to cover only those that seem to us outstanding.

Tried to a jury, there were submitted, by the trial court, more than thirty special issues.

■ The allegations of the claimant’s petition, with reference to his employment, are, that: on November 2, 1937, he received -and sustained serious and painful injuries while working , for and on behalf of George L. Pace and/or Pace Petroleum Company, Inc., a corporation, duly incorporated under the laws of Texas, or some other State; or if plaintiff be mistaken as to the legal status and nature of said company, which is not within the knowledge of this plaintiff, then plaintiff represents to the court that the said business known as George L. Pace and/or Pace Petroleum Company, Inc. was a partnership doing business under the name of George L. Pace and/or Pace Petroleum Company, Inc., which said name was used for convenience purposes and that the said plaintiff was working for and on behalf of a business known as George L. Pace and/or Pace Petroleum Company, Inc., of whatever legal status said company may be, the plaintiff not knowing who, if any, the partners are.

These allegations are followed by those stating that the appellant insurance carrier “issued to George L. Pace and/or Pace Petroleum Company, Inc. (a corporation or a partnership)” the policy of insurance made the basis of the suit. Allegations follow to the effect that the policy was so issued to cover the employees of the parties named, “whether the same was individually owned, was a corporation, or partnership”, etc.

Many injuries and results of injuries are alleged to have been sustained by the claimant by reason of his holding to what is known as a “catline”, which was heavy and which was being held also by a fellow workman who suddenly turned the line loose and thus jerked the claimant violently-

The injuries alleged are all internal. That is to say, no bruises or lacerations to the surface of any portion of the body are set forth, but his allegations are as follows :

“That as a result of the dropping of said line, as above particularly set forth, plaintiff received serious and painful personal injuries in and about his shoulders, abdomen and back, that he immediately thereafter suffered severe pain in and about these portions of his body and particularly about the midline and to the right of his abdomen. That plaintiff, as a result therefrom, was ruptured and the lining and muscular portions of his abdomen, together with his internal organs, were jej-ked and torn; that the walls 'of plaintiff’s stomach were lacerated and holes torn therein and plaintiff’s internal organs, including his intestines, were injured, dislocated,' mashed, bruised, jerked and torn loose, causing plaintiff severe internal pain. That plaintiff’s shoulders and the bones and muscles and nerves in between same, and leading to and from same, were severely sprained, dislocated, twisted and drawn out of alignment, likewise causing plaintiff severe pain in that region of his body. Plaintiff’s back was severely wrenched and sprained and all of the tendons, leaders, ligaments, muscles, nerves and blood vessels connected with plaintiff’s spine and in his back, and leading thereto and therefrom, ,were jerked, torn and pulled loose, strained and sprained causing plaintiff to suffer severe and excruciating pain in his back, incapacitating plaintiff from stooping and bending, from lifting or placing weight upon his back without suffering great and severe pain in that region. That plaintiff suffered and continues to suffer severe and painful injuries to his entire nerves and nervous system. That he has continuously, since the date of said injuries, been rendered extremely weak and nervous and has constantly, from said date, continued to lose weight, being rendered thereby at present extremely nervous and weak and considerably underweight. That as a result of said injuries, plaintiff was immediately rendered violently sick at his stomach and nauseated, causing him to vomit immediately after receiving said injuries. And that he has almost continuously and for prolonged periods since his said injury, been rendered nauseated and sick at his stomach, causing him to vomit frequently. That plaintiff’s digestion has been seriously affected and he has very frequently been unable to retain food or nourishment, during which spells he was forced to remain in bed and is in a constant nauseated state, which is extremely painful and uncomfortable. That said condition has caused plaintiff to lose considerable weight, thereby rendering him extremely nervous, weak and underweight, which said condition does not improve or get better and which condition seems to be progressive. That by reason of the above mentioned injuries,-plaintiff has suffered, does suffer, and will continue to suffer .in the future, severe and excruciating mental and physical pain.”

The claimant sought to recover compensation under first subsections 1, 2 and 3 of Section 1.of Article 8309, R.C.S., Vernon’s Ann.Civ.St. art. 8309, § 1, first subds. 1-3, pleading same alternatively,' and the insurance carrier, in its pleading, admitted that “there were other employees of the same class as the plaintiff who worked substantially the whole of the year immediately preceding November 2, 1937, in the same , or similar employment in the same or a neighboring place to that in which the plaintiff was working on November 2, 1937, but this defendant specifically denies that said other employees earned the sum of $4 per day, working seven days per- week, during such time, and demands that strict proof be made thereof.”

These admissions are noticed here because the trial court submitted the case to the jury under subsection 3 of above cited statute, rather than under subsection 2 thereof.

Issue No. 1 and the jury’s finding thereon are: “Do you find from a preponderance of the evidence that the plaintiff, Elmer Richardson, sustained accidental personal injuries while working on the Winstead Lease, on or about November 2, 1937?” Answer: “Yes”; to issue No. 2 the jury answered that the injuries were sustained by plaintiff while working as an employee of Pace Petroleum Company, Inc.; to issue No. 3, that such injuries were not sustained by him while working as an employee of George L. Pace, and to issue No. 4 that same were not ■ sustained while working as an employee. of-’ Pace and McClure; 4a and -4b were not: answered, being conditionally submitted,, and to 4c the jury answered- that the injuries were received in the course of plaintiff’s employment with Pace Petroleum Company, Inc., and to 4d that same-were not received while in the course of- employment With George L. Pace, and-4e was not answered, same being submitted conditioned upon - the answer to Issue 4; to issue No. 5 the jury found that plaintiff -sustained total incapacity; Issue No. .6 is: “Do you find from a preponderance of the evidence that such total incapacity, if any, was not permanent? Answer ‘-It ■ was permanent’ or ‘It was not permanent’ ”, and the answer is:- “Permanent”; issue No. 7 was not answered, being conditioned upon the answer to issue 6; issue-’7a->ahd 'the answer are:-..-“D.o you find-, from- a preponderance of the evidence that plaintiff’s incapacity,- if any, was ■ not partial-? -Answer ‘It was not’ • or ‘It was’ , Answer: “It was not”; issue 7b.and,the answer are: “Do you find from a, preponderance of the evidence that' the incapacity, if any, of the plaintiff was ’hot temporary? Answer ‘It was'’not’ or 'Vt was’. Answer: “It was . hot'”;’. issues Nos. 8, 9, 10, 11 and 12 were hot ahswerWd, being conditioned upon the answer to ‘issues theretofore submitted; issue No.' 13 and the answer are: “What sum of mbney do you, find from a preponderance Of ’th'e evidence as the average weekly wage of the plaintiff during substantially the whole of the year immediately preceding November 2, 1937, which you deem to be just and fair to both parties, plaintiff and defendant?” Answer: -“$28.00 week.” ’•

We will not notice issues 14 to '25, inclusive (except No. 15), which inquire as to other injuries and diseases suffered by the claimant and suggest ’ that upon the next trial all issues be so drawn that the burden of proof is properly placed.

Issue No. 26 is: “Do you'find from a preponderance of the evidence that the plaintiff was not working on the Pace an! McClure rig on the occasion when he claims to have been injured?” The answer is: “No”.

To issue 15 the jury returned a verdict for a lump-sum settlement.

A great many objections were urged against the charge and they cover about 75 pages of the transcript. The appellee (claimant below), who obtained a judgment on the verdict, objects to our considering these objections on the theory advanced by certain Courts of Civil Appeals in causes cited in the brief, but we find that the Supreme Court has granted writs in these cases and we would not follow the opinions for that reason, but this court is of opinion that no matter how many objections are urged against the charge of the court and no matter how many such -objections appear to be frivolous, if they do so appear, either to the trial court or to the appellate court, nevertheless, if there are to be found among such objections any that plainly point out, in language that may be understood by the average trial judge, the error complained of, we should consider the assignments <?f error bottomed on such objections.

Every member of this court has served, as a district judge and it is our common experience that when we hurriedly considered the objections urged against our charges, we usually fell into error.

We are in hearty accord with any and all holdings wherein a portion of the costs are charged against the appealing party when the transcript is needlessly burdened with proceedings not presented on the appeal. This, because it is not necessary to incorporate all of the objections to the court’s charge in the transcript unless all are distinctly presented as showing errors, and it is not necessary to incorporate the whole of the motion for a new trial in the transcript unless all are distinctly presented as showing errors. It is assuredly true that only the portions of such records actually relied upon as presenting errors need be brought forward in the transcript, and this is obviously preferable.

It is likewise true that all assignments of error presented may be arbitrarily numbered and that a reference to the place in the transcript and the portion of same in which the assigned error may be found is all sufficient.

In the case at bar there are such 32 assignments of error, supported by 19 propositions.

We do not believe that the trial court erred in overruling appellant’s motion for an instructed verdict or its motion for judgment notwithstanding the verdict, on the theory that plaintiff was an employee of George L. Pace and M. T. McClure, who were copartners doing business under the name of Pace and McClure, or that the trial court erred in overruling appellant’s motion to have a mistrial ordered upon the theory that the answers found by the jury to issues Nos. 2 and 4 conflict with the answer made to issue No. 26.

Of course, it seems a bit strange to us that even a negro would not know for whom he was working and by whom he was employed, and yet we are able to see how such a condition could arise, but it seems stranger still that the white men who hired this negro are not positive about such a matter and that they are not in accord when they testify concerning the employment.

We will simply say that from the character of testimony which was adduced, the jury could have reasonably found as was done.

We do not believe that the answer to issue No. 26 establishes the fact that appellee was employed by Pace and McClure, even if the jury intended to find that appellee was working on the Pace and McClure rig. Under the testimony, the rig could have been owned by Pace and McClure and the employee could have been working for an employer who was using the rig under some arrangement with the owners.

Likewise we do not believe that the findings made by the jury to issues Nos. 2 and 4 are so against the overwhelming preponderance of the evidence as that they show bias and prejudice.

We are constrained to overrule the first five propositions and the assignments of error on which they are bottomed.

The seventh and eighth propositions contend that the trial court erred in submitting Issue No. 1 to the jury over appellant’s, objections that the issue is too general and is more inclusive than is permitted, in that it does not require the jury to consider only the injuries that were alleged and permits the jury to speculate on matters outside of the pleadings, and that the issue is on the weight of the evidence in that it assumes that the plaintiff sustained personal injuries and merely inquires whether same were sustained while plaintiff was working on the Winstead lease, and furthermore, if the issue is not on the weight of the evidence, then it is duplicitous, in that it inquires, first, whether or not plaintiff sustained any personal injuries, and second, whether or not such injuries were sustained while he was working, and it assumes that he was working on the Winstead lease on November 2, 1937, when same is a highly controverted issue of fact.

These objections are well taken. It is not only not undisputed that appellee received accidental injuries, this fact is hotly contested; it is not only not undisputed that appellee was working on the Win-stead lease on the day and date alleged by him, but the fact of his working on such lease at such time is likewise hotly contested.

In causes where the injuries are disputed, it is necessary to couch the charge in words that will cover the injury both alleged and supported by proof. The fact that the issue is multifarious is obvious.

Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972, writ dismissed correct judgment; Petroleum Casualty Co. v. Schooley, Tex.Civ.App., 131 S.W.2d 291, writ dismissed correct judgment; Traders & General Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103, writ dismissed correct judgment; Southern Underwriters v. West, Tex.Civ.App., 126 S.W.2d 510, writ refused; Gamer v. Winchester, Tex.Civ.App., 110 S.W.2d 1190, writ dismissed and Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, writ dismissed.

Other cases could be cited, but we call attention only to those wherein the opinions have been before the Supreme Court on applications for writs of error.

The ninth and tenth propositions contend that the trial court erred in submitting issue No. 6 in such language that the burden of proof is placed upon the insurance carrier to establish the fact that the claimant’s total incapacity was not permanent.

The issue as given is: . “Do you find from a preponderance of the evidence that such total incapacity, if any, was not permanent ?”

The employee was alleging and claiming that he was totally and permanently incapacitated by his injuries. The burden was upon him to establish such facts. The issue is erroneous.

The error is made the more apparent when considered with proposition No. 10, which calls attention to the fact that the insurance carrier not only made the proper objection to issue No. 6, but actually submitted to the trial court an issue which correctly placed the burden of proof on the plaintiff. The trial court refused to give the issue so submitted; 45 Tex.Juri., para. 295, pp. 809-811.

We will next consider the twelfth proposition, which contends that it was error for the tidal court to submit the issue of appellee’s wage rate under subsection 3 of Art. 8309, R.C.S., under the facts in this case.

We called attention to the claimant’s pleadings supra and to the fact that the insurance carrier admitted in its pleading that there were those who had worked for substantially the whole of the year next preceding the day on which the injury is claimed to have been suffered. This admission set at rest the issue and the proof having failed to sustain claimant’s pleading as to subsection 1 of said Article, there was nothing left for the trial court to submit except the amount of wages of such workmen. This the trial court should have done.

We will not discuss the remaining propositions which touch upon the proper placing of the burden of proof in the issues touching upon prior injuries and illnesses suffered by the claimant. 'Suffice it to say that the wise thing to do in all workmen’s compensation cases is to _ put the burden of proof on the claimant to make out his right of recovery, and a smart claimant will assume such burden, rather than be confronted with error in the charge.

For the reasons stated, the judgment of the trial court is reversed and the cause is remanded.


author: SPEER, Justice.

text:
    JONES et al. v. LOCKHART et al.
    No. 14123.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 18, 1940.
    Rehearing Denied Nov. 15, 1940.
    W. E. Jones, of Longview, for plaintiff in error.
    Hurst, Leak & Burke, of Longview, for appellee A. A. Lockhart.
    Harvey P. Shead, of Longview, for ap-pellees Allen heirs.
    Hatched & Hatched, of Longview, for appellee Charlie Haynes.
   SPEER, Justice.

D. H. Jones and The Bank of Teneha, unincorporated (a copartnership), and the owners of said Bank and copartnership, D. DuBose, J. T. Peddy, S. B. Bed, Luke Motley, George W. Duke, J. P. James, H. P. Parkman, J. R. Weir, E. S. Hicks, H. C. Parker, A. C. Hargraves, J. S. Baldwin, J. N. Parker and -Stanton DuBose) collectively and individually, instituted this suit in usual form of trespass to try title against A. A. Lockhart and fifteen others, to recover title to a tract or lot of land in the City of Longview, Gregg County, Texas. The description given in the pleading indicates that the lot is approximately 185 feet by 266 feet, save and except (as stated in the petition): “That part of said tract now being occupied by the Jerusalem Colored Baptist Church, by its Sunday School room and by its toilet, being about 50 feet off of the south end of the part of this land west of the street.”

The defendants filed pleas in abatement and bar, and subject thereto filed general denials, pleas of not guilty and special defenses. The pleas in abatement and bar. were heard by the court and, after hearing and considering the testimony offered, were sustained and plaintiffs’ suit was dismissed. From this judgment one of the plaintiffs, D. H. Jones, has perfected an appeal by writ of error to the Sixth Supreme Judicial District, and . under an equalization order by the Supreme Court, is before us for review. We shall refer to D. H. Jones, plaintiff in error here, as plaintiff, as he appeared in the trial court, and to defendants in error as defendants, as they were designated below. In the petition for writ of error, plaintiff D. H. Jones is joined by W. E. Jones and the two prosecute the appeal. We shall’refer to this later in this opinion.

The plea in abatement and bar urged by defendants and sustained by the court, presented these points: (a) One of the plaintiffs in this case, The Bank of Teneha, unincorporated, a copartnership, .did not exist at the time suit was instituted, having been dissolved and discontinued since the latter part of 1909 or early in 1910; that it was succeeded by The First State Bank of Teneha in 1910; (b) C. S. and Addie M. McKinley sold and conveyéd the land in controversy to Luke Motley, cashier of The Bank of Teneha (unincorporated) March 17th, 1909; (c) Luke Motley and others, as sole owners of The Bank of Teneha, conveyed to George T. Reynolds and Miss Alice Reynolds, by deed dated October 28th, 1909; (d) the independent executor of George T. Reynolds and all of his heirs (naming them) and the independent executor of the estate of Agnes Alice Reynolds, deceased, by deed dated July 6, 1937, conveyed the property to W. E. Jones; (e) W. E. Jones filed suit in the District Court of Gregg County against defendants, in cause No. 11,304C, to recover the land here in controversy; that on November 15, 1937, judgment was entered denying recovery by the plaintiff W. E. Jones, and awarding title to certain defendants on their cross-action therefor; that appeal was taken by W. E. Jones to the Texarkana Court of Civil Appeals,, in which court the judgment so entered below was affirmed on certificate May 26,. 1938, and the mandate duly returned to-the trial court; (f) W. E. Jones conveyed by his deed' dated May 12th,- 1938, the-land to D. H. Jones, and (g) Luke Motley and The First State Bank of Teneha, incorporated, quitclaimed unto D. H. Jones all interest they may have in the tract of land, under date June 14, 1938. Further alleging in said pleas that The Bank .of Teneha, unincorporated, instituted the instant suit against defendants to recover the identical land which wás in controversy in cause No. 11,304C; that defendant.Á. A. Lockhart is the owner of the land both by mesne conveyances and the judgment aforesaid; that because plaintiff The. Bank of Teneha, unincorporated, had ‘ conveyed the land as aforesaid, in 1909, arid'that plaintiff D. H. Jones’ alleged title' was deraigned from W. E. Jones, subsequent to the failure of the latter to recover judgment for title to the land iri ’ said cátise No. 11,304C, wherein the title was awarded to A. A. Lockhart, both .plaintiffs are estop-ped and barred from prosecuting'this suit and attempting to acquire the .title 'to the tract of land. , Í !'

Testimony was heard by the.'court .when the pleas came on. for -hearing. We have searched the testimony carefully and' find that the. facts are apparently undisputed, as alleged by defendants in the pleas. At the instance of plaintiffs the 450-page volume of testimony taken in cause No. 11,304C was introduced in evidence in. this case, but as we view this appeal there is only one point urged by plaintiff here that can be gleaned from it all. That is,, when cause No. 11,304C was tried, it. is contended that plaintiff in that case, W. E. Jones, failed to recover because the court refused to admit in evidence a deed from Luke Motley et al. to George T. Reynolds and Alice Reynolds, of date October. 28, 1909, which was a link in the chain of title claimed by that plaintiff;, and upon the trial of the instant case, the court admitted it in - evidence, with the result that plaintiff D. H. Jones could not recover in this case, since he acquired no -title from W. E. Jones under the deed of May 12, 1938. ! ... ..

Plaintiff’s ■ first proposition, which! we are considering as an assignment of- error, complains of the action of the court in admitting the deed in evidence because, he says: “Defendants were estopped from claiming any benefits under this deed and the court''could not consistently consider this deed in their behalf, since it was these same defendants who objected to the same deed and this same court who sustained them in the case to which they now refer (cause No. 11,304C).”

The statement of facts prepared in the cause number last referred to discloses that the deed was excluded from evidence by the court when offered by W. E. Jones, and the record shows that it was admitted upon the hearing ' on the pleas in this case. Why it was rejected in the trial', of another case, the judgment in which has become final by an affirmance of the Court of Civil Appeals, and the mandate returned to the District Court, cannot be reviewed by us now. To do so would present an anomalous situation resulting in a condition contrary to our well established rules of jurisprudence. See Paschall et al. v. Renshaw et al., Tex.Civ.App. 142 S.W.2d 717, and State v. Savage et al., 105 Tex. 467, 151 S.W. 530. Clearly, under the pleadings in this case, the deed was admissible in evidence to show the title was in another and not in either of the plaintiffs, D. H. Jones or The Bank of Teneha, unincorporated. To grant, for the argument, that the instrument was improperly rejected in the first suit, a thing we do not decide, would avail plaintiffs nothing in this case. It is argued by plaintiff D. H. Jones, who alone has appealed in this case, that because these same defendants, upon objection, induced the court in the other case to exclude the deed, they are now estopped to contend it admissible in this case. We think the reason assigned is untenable; there are many reasons which occur to us that would have justified its. exclusion when offered in cause No. 11,-304C that may not have existed when offered upon this trial. The court may not have excluded it for any of those reasons, but of this we have no concern here.

By his second proposition, complaint is made by plaintiff that the court erroneously admitted in evidence the deed from May B. Reynolds et al. to W. E. Jones; this deed is referred to above by us as being dated July 6, 1937. The reason assigned, for the acts complained of is: “Because it (the deed) is no part of defendant’s chain of. title which was cut off for the benefit of these defendants in cause No. 11,304C and cannot now be used in their behalf.” If we properly understand plaintiffs’ contention presented by the proposition under consideration, it is to the effect that defendants could not offer in evidence an instrument that would defeat or break the chain of title relied upon by plaintiffs unless that instrument added to or strengthened the chain of their own title. If we are correct in this understanding, we think the contention of plaintiffs unsound.

In trespass to try title cases, such as this, the plaintiff must recover, if at all, on the strength of his own title and not upon the failure of title in those charged with holding the land; when plaintiff cannot establish his own superior title, the defendant in possession is entitled to a judgment awarding title to him. 41 Tex. Jur., sect. 33, pp. 497-499. The effect of defendants’ pleas in abatement and bar in this case was to assume the burden upon a hearing of the plea, of establishing the fact plaintiffs had no title. The deed complained of as having been admitted in evidence at the hearing placed title in W. E. Jones and not in plaintiff D. H. Jones. The instrument tended to show plaintiff had no title and to that extent discharged the burden assumed by defendants by their pleas in bar. The point here discussed is analogous in some respects to the point involved in Tate v. Johnson, Tex.Civ.App., 140 S.W.2d 288, writ dismissed, judgment correct.

Third proposition presented in plaintiffs’ brief, which we are asked to consider as an assignment of error, reads in . part: “The court erred in admitting each of these instruments from cause No. 11,304C and No. 10,600C:” (Here follow ten separate and distinct instruments and documents.) The rule prescribed by Article 1844, Vernon’s Ann.Civ.St., requires that all assignments of error shall distinctly specify the grounds of error relied upon by a party., We are unwilling to further tax the elasticity of the liberal interpretation given by us to the two preceding assignments, by a consideration of the last point mentioned.

Fourth, fifth and sixth propositions are similar to numbers one and two above discussed. It would unnecessarily extend this opinion to notice them in detail, but what has been said disposes of them against the contention of plaintiffs.

Propositions 8 to 15, inclusive, complain of errors committed by the trial court in cause No. 11,304C which we have mentioned as being the case finally disposed of by an affirmance by the Court of Civil Appeals and it is not for us to express an opinion upon whether or not that case was properly tried and disposed of.

We presume that the points raised in the propositions last referred to were included in plaintiffs’ brief upon the theory that W. E. Jones (not the plaintiff in the case at bar) who joined plaintiff in this ■case in his petition for writ of error, should have been permitted by the trial court to -intervene in this case and prosecute his Bill of Review in cause No. 11,304C.

The above statement is made by us, since in the transcript we find a pleading by plaintiffs denominated by them “Plaintiffs’ Answer to various Motions of the Defendants”. The pleading covers eight pages iand in it we find an allegation or assertion that W. E. Jones had, at a previous date, filed and prosecuted a trespass to try title •suit against,the defendants in the present case, seeking to recover the land in controversy, and failed therein because the court upon the trial refused to permit certain deeds of conveyance to be introduced in evidence; that if the court should now .admit in evidence the deed that was rejected in the other case, W. E. Jones, plaintiff in that case, should be permitted either to intervene in the present case and establish his rights or be permitted to prepare and have heard his Bill of Review in the other case. We know of no rule in our procedure which would warrant the filing of a Bill of Review under such conditions, even if W. E. Jones had asked it; but much less reason exists for complaint when he made no such request. We cannot imagine a condition that would .give a precedent for such a procedure. We can see no error in the acts of the trial court in taking no cognizance of the request by plaintiff D. H. Jones that W. E. Jones be permitted to intervene in the •case or to permit him to file a Bill of Review in the other case. In fact, the record does- not reflect that such request was ever acted upon by the court unless it could be said that the judgment sustaining the pleas in abatement and bar had the effect to deny the request even though it was .not mentioned in the order. The equitable Bill of Review, such as would apply to the •situation here, would not be available in this case to review what had taken place in cause No. 11,304C. See 17 Tex.Jur., sects. 24, 25 and 26, pp. 26, 27 and 28. For the reasons shown, we decline to consider the propositions 8 to 15, admittedly applicable alone to proceedings had in cause No. 11,-304C in the District Court of Gregg County.

There is no reversible error presented by this record; all assignments of error and propositions are overruled, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

In plaintiffs’ motion for rehearing, our attention is called to an expression used by us in the original opinion, which they claim is not supported by the record. We said, in effect, that plaintiff D. H. Jones was complaining, in this appeal, because the trial court declined to permit W. E. Jones to intervene.

In the motion we are cited to what purports to be a proposed plea of intervention and bill of review by W. E. Jones in the statement of facts. The document found its way into that part of the record as a part of a bill of exception. Upon the trial D. H. Jones tendered in evidence certain instruments and documents which, upon objection, were excluded by the court; the nature of these instruments is not material.

After the court had announced from the bench that he had sustained defendants’ plea in bar, counsel for D. H. Jones (shown by the record to be W. E. Jones) announced to the court that he had prepared and was ready to ask leave and file a plea in intervention for W. E. Jones in form of a bill of review in cause No. 11,304C, in behalf of D. H. Jones and W. E. Jones. By an oral ruling, the court denied plaintiff the right to file the plea in intervention, to which he excepted and included the proposed pléa in his bill of exception. We make this explanation in the interest of clarity, since in the manner mentioned the record does show that W. E. Jones (counsel for D. H. Jones) did propose and asked leave to file his plea of intervention and bill of review, the latter pertaining exclusively to cause No. 11,304C.

We have been unable to find' any authority or, precedent in any case decided in this State, which will support plaintiffs’ contention here made.

With the foregoing explanation, the motion for rehearing is overruled.


author: DUNKLIN,-Chief Justice.

text:
    WELLS v. SMITH.
    No. 14117.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1940.
    Rehearing Denied Nov. 15, 1940.
    C. C. McKinney, of Cooper, and Jackson & Stell, of Sulphur Springs, for appellant.
    Hutchison & Fisher, E. L. Myers, and Long & Wortham, all of Paris, for appellee..
   DUNKLIN,-Chief Justice.

C. F. Wells, defendant in the trial court,, has appealed from a personal judgment ini favor of James A. Smith, plaintiff, for the amounts due on certain promissory notes executed by him for purchase money of two tracts of land, with foreclosure of vendor’s lien to secure the same; and the principal complaint urged by him here is alleged error in overruling his plea of the four-year statute of limitation to that demand.

The notes in controversy are a series of seven, executed by defendant, C. F. Wells, in consideration of a deed of conveyance to him of two tracts situated in Delta County, Texas, by plaintiff, James A. Smith, and wife, Bess Smith, joined by W. S. Smith, dated' October 23rd, 1929. W. S. Smith; a single man, died in the year 1935. After his death all his heirs, except plaintiff, J. A., Smith, deeded to the latter all their interest .in the,land, together with all rights and appurtenances thereunto belonging. Under that conveyance plaintiff claimed ownership of the purchase money notes and the vendor’s lien given to secure the same; and that ownership, has not been challenged by appellant, if the notes have not been barred by the defense of limitation pleaded.

The deed referred to, above noted, recited the consideration therefor as follows: “Onb hundred and twenty and no/100 dob lars, to us in hand paid by C. F. Wells, the receipt of which is hereby acknowledged, and the further consideration of 7 promissory notes .of even date herewith, each for the sum of $200.00, and bearing 8% interest from date, and due annually. First note due October 23rd, 1930, second note due October 23rd, 1931, third note due October 23rd, 1932, fourth note due October 23rd, 1933, fifth note due October 23rd, 1934, sixth note due October 23rd, 1935, seventh note due October 23rd, 1936, being payable to order of James A. Smith, Paris, Texas; it being understood that failure to pay any note as same becomes, due shall mature the entire series of notes unpaid, and the owner and holder may proceed to collect same. (To secure payment of which notes we hereby retain the vendor’s lien on the land hereinafter conveyed.)”

The seven notes recited in the deed were executed by C. F. Wells contemporaneously with the execution of the. deed. None' pf them has been paid and all are now owned by plaintiff, James A, Smith. Each of those notes embodies this recital: ■“This, note is a series of seven similar notes this day given by C. F. Wells as a part of the purchase price for said above mentioned property, and it is understood and agreed that failure to pay this note or any installment of principal or interest thereon when due shall at the election of the holder of all said notes or any one of them mature all the said notes and they shall at once become due and payable, and the vendors lien herein mentioned shall become subject to foreclosure proceedings as the holder may elect.*’

Plaintiff’s amended petition, on which the case was tried, included two counts, the first for recovery of superior title to the land covered by the deed to C. F. Wells, because of the vendor’s lien retained therein; and second, and in the alternative, for judgment for the amount now due on the seven promissory notes, vrith foreclosure of the vendor’s lien. And judgment was rendered on that alternative pleading.

Plaintiff’s original petition was filed January 18th, 1937, which was more than four years after the respective due dates of any of the first three notes.

The controverted question here presented is, did the four-year period of limitation, Vernon’s Ann.Civ.St. art. 5520, pleaded by defendant' begin at the date of maturity of the first note, as insisted by ap-pellee, or on or about February 5th, 1936, which, according to the uncontroverted testimony introduced by plaintiff, was the date he first exercised the option given in the notes to accelerate the maturity of all the notes then unpaid.

Apellant cites several authorities with special reliance on the decision of our Supreme Court in San Antonio Real-Estate, Bldg. & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S.W. 386, 387, 86 Am.St.Rep. 861, and decisions there cited. In that case; Stewart and wife executed 72 instalment notes, payable monthly, in favor of the Building & Loan Association, to pay for improvements on their homestead, together with a mechanic’s lien on the property, in consideration of which, the Association erected the improvements contracted for. The contract giving the lien included this provision: “ * * * that, whenever any three of said notes or monthly payments remain unpaid, in whole or in part, after due, then and. thereupon the balance of said notes remaining shall be due and payable, and said association may at any. time thereafter proceed to foreclose said debt and lien.”

The suit was for foreclosure of the mechanic’s lien, to which the four-year statute of limitation was pleaded, and the question involved was certified to the Supreme Court by the Court of Civil Appeals. The following is quoted from the opinion:

“ ‘Question. Did all the unpaid notes become due upon default in the payment of the three notes, in such manner that the statute of limitations has barred appellant, regardless of what took place, as herein-before stated, between Stewart and the association in reference to the contract?’
“The notes and the instrument creating the lien, executed at the same time concerning the same subject-matter, are to be construed together as constituting one contract. According to the great weight of authority, including decisions of this court, the stipulation in the last-mentioned writing has the effect of fixing a contingency upon the happening of which the debt should mature at a time earlier than the dates given in the notes for their maturity. Dodge v. Signor [18 Tex.Civ.App. 45], 44 S.W. 926; [First Nat.] Bank v. Peck, 8 Kan. 660; [Wheeler & Wilson] Manufacturing Co. v. Howard (C.C.), 28 F. 741; Brownlee v. Arnold, 60 Mo. 79; 1 Daniel,. Neg.Inst. [sec.] 156; Gregory v. Marks, Fed.Cas.No.5,802, 8 Biss. 44; Noell v. Gaines, 68 Mo. 649. There is some authority for the construction that such a stipulation in the mortgage alone does not have the effect, upon default in the payment of an installment, of maturing the notes for general purposes, but operates only to allow foreclosure of the mortgage, and the application of the proceeds of the property to the whole debt, without otherwise affecting the terms of credit expressed in the notes. Owings v. Mackenzie [133 Mo. 323], 33 S.W. 802, 40 L.R.A. 154, dissenting opinion of Hough, J., in Noell v. Gaines, supra, and cases cited. This view cannot be adopted consistently with the previous decisions of this court or the current of decisions elsewhere, of which many others could be cited besides those before referred to, and the effect of the stipulation in question in the instrument giving the lien must be held to be the same as if it had been inserted in the notes. Among the courts so treating it, another difference of opinion has arisen as to its effect, some treating it as' maturing the notes absolutely, upon default in payment of one of the installments, and others holding that it merely gives to the creditor a right of election to declare the whole debt to be due, or to waive the default, and insist upon the performance of the contract as it originally stood, unaffected by such default.
“The view first stated has been adopted by this court, with the result that upon default in an installment the debt matures and limitation begins to run. Harrison Machine Works v. Reigor, 64 Tex. [89] 91; Dodge v. Signor, supra. Other authorities to the same effect are Hemp v. Garland, 45 E.C.L. 519; Moore v. Sargent, 112 Ind. 484, 14 N.E. 466; [First Nat.] Bank v. Peck, supra.

Appellant also cites 6 Tex.Jur., sect. 79, page 685, reading: “When it is provided that if any one of a series of notes is not paid at maturity all the notes shall become due, a default in any payment ipso facto brings to maturity the entire series.” And McCray Refrigerator Co. v. Simms, Tex.Civ.App., 268 S.W. 275 to a like effect.

It is our conclusion that the option given in the notes to the effect that if default be made in payment of any of the notes at maturity, the holder of all the notes then unpaid would have the option to mature them, with right of foreclosure of the lien executed to secure them, is determinative of the issue of limitation. In other words, we conclude that the option given in the notes should be controlling, to the exclusion of what the terms of the deed with respect to its recitals of consideration would import, in the absence of the option given in the notes alone. While the notes and lien are all to be construed as one transaction, the notes themselves are better evidence of the consideration than the recitals thereof in general terms found in the deed.

We believe this conclusion is sustained by the following decisions, none of which, in our opinion, is in conflict with those relied on by appellant. That a lien given to secure a debt is but an incident to the debt is. a familiar rule of construction.

This statement in 29 Tex.Jur., sect. 92, page 914, is supported by authorities there noted: “If there is any inconsistency between the provisions of the mortgage and the language of the note which is secured thereby prevailing effect will be given to the terms of the note.” Power v. Westhoff, Tex.Civ.App., 4 S.W.2d 274, writ dismissed; Indiana & Illinois Ry. v. Henrietta P. Sprague, 103 U.S. 756, 26 L.Ed. 554; Shive v. Braniff Inv. Co., Tex.Civ.App., 68 S.W.2d 564; Clement v. Scott, Tex.Civ.App., 60 S.W.2d 258, writ dismissed; Bowman v. Rutter, Tex.Civ.App., 47 S.W. 52.

Plaintiff alleged that the notes sued on were lost and notified defendant that secondary evidence thereof would be introduced.

Defendant filed a duly verified plea of non est factum. On the trial, plaintiff introduced purported copies of the notes which he testified he himself made before turning them over to Mr. Patterson, his attorney, for collection. Patterson testified to receipt of those originals and the abstraction thereof from his office, in his absence, very shortly after he had shown them to defendant, on a ’Visit to his office by the latter, and his inability to find them after diligent search. He had examined the notes time and time again, when defendant, Wells, would come in and talk of trying to settle them by reco'nveying the property. On each occasion witness showed the notes to defendant, and defendant did not deny his signatures thereto or question' their genuineness. Further, he saw defendant sign another note for $100 and his signature to that was the same as his purported signature to the notes in suit; and witness was familiar with his signature. He further testified: “There was an accelerating clause in those notes that provided that in the event of failure to pay the interest or any one of those notes when due gave the owner, payee, Jim Smith, the right to mature all unpaid debts. It also provided that the unpaid debt should bear 10%; it was drawing 8% up to that time.” He testified to other circumstances tending to corroborate his foregoing testimony.

Defendant, Coker Wells, did not testify in the case, although the judgment recites that he appeared in person at the trial, and no evidence was introduced to explain his failure so to do.

The evidence recited was not contradicted by any other in the record before us. And under that showing the court did not err in instructing the verdict returned, as insisted by appellant under other assignments of error, under the general rule that a peremptory instruction cannot be given when based on the uncorroborated testimony of a party to the suit. Williams Sign Co. v. Rodgers, Tex.Civ.App., 24 S.W. 2d 478; Western Shoe Co. v. Amarillo National Bank, Tex.Civ.App., 42 S.W.2d 469; Thomas & Co. v. Hawthorne, Tex.Civ.App., 245 S.W. 966, loc.cit. 972, 973, error refused; Bailey v. Dillard, Tex.Civ.App., 147 S.W. 1165, and other authorities cited in those decisions. And those decisions have special force, when it appears that defendant was present in court during the trial and failed to take the witness stand and testify to any fact which would tend to discredit the testimony offered by plaintiff, referred to above. Brown v. McKinney, Tex.Civ.App., 208 S.W. 565, writ refused.

Since, under Rule 4 of Texas Court Rules, plaintiff had the right to plead the relief sought in the two separate counts in his petition, the court did not err in refusing defendant’s motion, presented at the beginning of the trial, to require plaintiff to elect which of those counts he would rely on.

Moreover, although the point is not definitely presented in appellee’s brief, we believe that even if the first note' be construed as maturing at the date evidenced solely by the recitals in the deed and in the absence of its optional provisions, nevertheless, the action of the court in overruling appellant’s plea of limitation was correct, independently of the theory noted in our foregoing conclusions. Because, when the amendment of Art. 5520 by Act of the Legislature in 1931, Vernon’s Ann. Civ.St. art. 5520, repealing Arts. 5521 and 5523 of Statutes of 1925, became effective, the first note as described in the deed was not then barred by the four-year statute of limitation, and under express provisions of that amended article limitation did not begin to run on that or any of the other seven of the same series of notes, until February 6, 1936, when plaintiff elected to mature all of them. And the suit was instituted less than one year thereafter, to wit, on January 15, 1937. Citizens’ Natl. Bank v. Graham, 117 Tex. 357, 4 S.W.2d 541; Broussard v. Beaumont Rice Mills, Tex.Civ.App., 115 S.W.2d 1235; Shepherd v. Woodson Lumber Co., Tex.Civ.App., 63 S.W.2d 581; Hutton v. Harwell, Tex.Civ.App., 95 S.W.2d 467; Crow v. Willard, Tex.Civ.App., 110 S.W.2d 161; Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447, 453. In the last-cited case, this was said by our Supreme Court: “The rule is that, while as to all causes of action not actually barred the Legislature may extend the period of limitation, yet, if rights have once become vested and perfect, the Legislature is without power to remedy or lengthen the limitation period.”

For the reasons indicated, all assignments of error are overruled, and the judgment in favor of plaintiff against the defendant C. F. Wells is affirmed. But the judgment in favor of plaintiff against all other defendants in the court below, from which no appeal is prosecuted, is left undisturbed.

On Motion for Rehearing.

Upon the trial defendant objected to that portion of the testimony of witness Patterson to the effect he kept the seven notes in suit here in a drawer in his office along with another note for $100- in favor of one Jim Smith, and all of those notes were abstracted from his office during his absence for a very short time on an errand to, another office in the town of Cooper. He further testified that he saw defendant Wells sign the $100 note, which, in his opinion, was the same as his purported signatures to the seven notes in suit. Counsel for defendant objected' to that opinion of the witness, based on comparison of signatures, because since all the notes had been lost they could not be submitted to the judge or jury for such comparison of signatures; as provided by Art. 3737b of Vernon’s Texas Civil Statutes, and as construed in the opinion of the Commission of Appeals in Gibralter Colorado Life Co. v. Taylor, 123 S.W.2d 318. And that point is stressed in appellant’s motion for rehearing.

No assignment of error is presented to that ruling, but the same, with exception thereto, is urged in support of his proposition No. 3, reading: “Appellant having denied the execution of the notes under oath, the trial court erred in instructing the jury to return a verdict for.appellee where the only' evidence as to the execution of said notes was the uncorroborated evidence of appellee.”

As pointed out in our original opinion, the witness Patterson further testified that before the notes were abstracted from his office, defendant, on several occasions, came to his office, inspected the notes and offered to settle the same by a reconveyance to the payees of the property for which the notes were given; never at any time denying his signature to the notes. And, further, that he kept all the notes in a drawer to his desk plainly in view of defendant; that he was expecting defendant back to his office on the day the notes were abstracted, for further negotiation relative to his proposed settlement of them, and that when he left his office on that occasion the drawer of his desk, in which the notes were kept, was partially open. There was no testimony or circumstance suggestive of a possible motive , for any third person to carry away the notes.. The judgment recites the appearance of the defendant at the trial; and his failure to take the witness stand at all and deny any of the facts testified to by Patterson, to the effect that defendant recognized as genuine his signature to the notes when he saw them in Patterson’s office — to say nothing of his failure to deny that, it was he who abstracted the notes from Patterson’s office — was prima facie sufficient of itself to overcome defendant’s plea of non est factum. 17 Tex.Jur. par. 87, page 306, and decisions there noted. At all events, that testimony of Patterson, and the inferences deducible therefrom, tended strongly to corroborate the testimony of the plaintiff that the signatures to the notes, were those of defendant. Indeed, in the absence of any contrary showing that evidence, coupled with that of plaintiff, was conclusive proof as a matter of law that defendant did execute the notes in controversy; and warranted the instructed verdict for plaintiff. It follows, therefore, that even if the opinion of Patterson that the purported signatures of defendant to the notes in controversy were the same as that to the $100 note was incompetent and therefore should be excluded from consideration on this appeal, nevertheless, appellant’s proposition noted above, that there was no corroboration of plaintiff’s testimony that the signatures of defendant to the notes in suit were genuine, cannot be sustained. General Motors Acceptance Corp. v. Boyd, Tex.Civ.App., 120 S.W.2d 484.

The motion for rehearing is overruled.


text:
    ZEIGLER v. LATHAM.
    No. 14112.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1940.
    Rehearing Denied Nov. 15, 1940.
    Lem Billingsley, of Fort Worth, for appellant.
    M. A. Bryan and Benson & Benson, all of Bowie, for appellee.
   SPEER, Justice.

Homer B, Latham sued Abigail Y. Zeig-ler for commissions as a broker, growing out of a sale of real estate situated in Montague County, Texas. The parties will be designated here as they were in the trial court.

The parts of plaintiff’s petition considered pertinent to a discussion of this appeal are, in effect: that defendant owned 1180 acres of land in Montague County prior tó the dates involved in this suit; “that during the year 1936, the defendant, for the purpose of selling said property, listed same with the plaintiff herein, and said property was continued to be listed with plaintiff from and after said daté, part of said time defendant listed said property with plaintiff, exclusively; that defendant at no time withdrew said listing but on the contrary the defendant continued negotiations with plaintiff concerning the sale of said property until some 30 or 60 days prior to November 10, 1938; however, if any notice of withdrawal was ever given plaintiff by defendant then said notice of withdrawal was waived by defendant”; that the land was listed with plaintiff to be sold at $16 per acre, but at a later date defendant áuthorized plaintiff to sell at $15 per acre, agreeing to pay him 5% commission on any sale made by him; that in pursuance to said contract of listing, plaintiff advertised the land and contacted persons in an effort to make a sale, submitting all propositions to defendant when made by prospective purchasers; that among the persons to whom plaintiff had endeavored to sell the land was one J. A. Brite, with whom he had several interviews; that defendant resided in Illinois, and that her representative came to Texas at defendant’s request and inquired of plaintiff the names of prospective purchasers with whom he had discussed a sale of the property; the representative was advised by plaintiff that J. A. Brite was one of the number, and that plaintiff granted the representative’s request to permit him to see and talk with Mr. Brite; that on about November 10, 1938, defendant sold and conveyed the land to said Brite for a consideration of $15,-000; that defendant consummated said sale with full knowledge that plaintiff had procured the said J. A. Brite as a prospective purchaser; that it was through the efforts of plaintiff that the defendant and the purchaser were brought together, and that it was the plaintiff who had originally shown the said 1180 acres of land to the said J. A. Brite.

It was alleged in another form that plaintiff was the efficient and procuring cause of the consummation of the sale of .the land by the defendant to Brite, and that because of said listing and contract of employment of plaintiff by the defendant, he was entitled to recover the commission as prayed for.

Plaintiff plead alternatively that if it should be determined that he had no specific contract with defendant for the sale of the land and a promise to pay him 5% commission on the gross sale price, then for the services performed by him, he is entitled to recover the sum of $750, as a reasonable compensation therefor.

Defendant answered by general demurrer and with a general denial. A jury trial was had and at the conclusion of taking testimony the court instructed the jury to return a verdict in favor of plaintiff for $737.50 (the amount was 5% of the price paid by Brite for the land). The verdict was in response to the instruction and from the judgment entered thereon this appeal has been perfected by the defendant.

There are twenty-eight assignments of error presented by defendant. The first six complain of the action of the trial court in excluding certain letters written by the authorized agents of defendant to the plaintiff during the period of time in controversy, and oral testimony offered at the trial.

It will be unnecessary for us to discuss each assignment separately, for the reason they all relate to two points involved, which seem to be the bone of contention between the parties. They are, (1) the court should not have instructed a verdict for plaintiff because the evidence was not of a conclusive nature and moreover, certain elements of plaintiff’s case was supported alone by his own uncorroborated testimony, and (2) the trial court erroneously excluded from evidence certain letters that passed between the parties, which tended to disprove some of plaintiff’s material allegations.

We think both points are well taken and require a reversal of the judgment entered.

The testimony abundantly supports the contention of plaintiff’s allegations of ownership by defendant of land sold; that she lived in Illinois and that E. C. Teeter, a banker and nephew of defendant, residing at Peoria, Illinois, and Edgar A. Whitney, of the same place, were her agents, authorized to negotiate with plaintiff and employ him to sell defendant’s lands in Montague County. ’ That plaintiff’s first negotiations with respect to selling defendant’s lands were with defendant, Mrs. Abigail Y. Zeigler, a widow, and that thereafter correspondence was had between plaintiff and defendant, as well as with Teeter and Whitney. It is equally true that the evidence establishes unquestionably that defendant’s land was listed with plaintiff for sale, the conditions of the listings, as to terms, price and time in which plaintiff should have the exclusive agency, varied over a period of about a year and a half. That at a time when plaintiff was authorized to offer the land for sale at a stipulated price, he contacted J. A. Brite and tried to sell to him. Brite was induced by plaintiff to go and inspect the premises, but having done so and upon learning the price at which it could be purchased, said he was not interested. Something over a year from the time plaintiff tried to sell to Brite, defendant sold the land to Brite, through Whitney, who advertised the property in a newspaper and Brite replied to the advertisement; that Whitney knew when -he made the sale to Brite that plaintiff had previously attempted to sell to Brite. This is substantially as far as the uncontroverted facts go.

On May 20, 1936, plaintiff wrote defendant and asked for a listing of her land in Montague County, for sale, asking to be given a price at which it could be offered. Defendant replied by letter on May 22, that she would be glad to have plaintiff sell the property at $17.50 per acre net to her. In.point of time the next communication was a telegram from defendant to plaintiff, dated March 2, 1937, which reads: “Answering, wire will consider price sixteen dollars per acre net to me for the ranch subject to agricultural lease expiring November thirteenth this year acceptance within thirty days prefer two thirds cash balance secured by trust deed abstracts in proper form will be furnished.”

On March 17, 1937, plaintiff wrote defendant that he was having trouble in selling the property at the price named by her, because other parties were claiming they had it listed and could sell for less, and asked her to both wire and write him that he could have exclusive agency for thirty days. In response to thát letter; defendant wired plaintiff on March 19, 1937, in these words: “Proceed with sale exclusive rights granted you good thirty days.” Complying with plaintiff’s request, she wrote a letter on the same date of the telegram, the substance of which was that she had not listed the property for sale with the parties named in his letter, and stated that she had had several offers of $15 per acre, but nothing was ever done about them.

Plaintiff testified that in June, 1937, Mr. Whitney come to Bowie and they talked about the prospects of selling defendant’s land; that Whitney .changed the former agreement as to the price and agreed for defendant to pay plaintiff 5% commission for a sale; that he told. Whitney at that time he had been trying to sell to J. A. Brite, a merchant there in town, and consented for Whitney to go and talk with Brite; Whitney did this and returned to plaintiff and said Brite wanted to buy it for less than it was worth. Brite’s testimony corroborated that of plaintiff to the extent that at the instance of plaintiff he went and looked at the land when plaintiff had offered to sell it to him; he did not recall the date of his conversation with plaintiff; he knew the land before plaintiff talked to him, and “had his eye on it” although he didn’t know who owned it. He said plaintiff wanted to sell it to him at $16 per acre, and he told plaintiff he “wouldn’t be interested.”

On June 30, 1937, Teeter wrote plaintiff that Whitney had reported to him his visit to Bowie and that Mrs. Zeigler (defendant) had authorized him to say to plaintiff that she was willing to offer the land at $16 per acre, with reservation in her of a right to participate in oil rentals or bonuses to the extent of one-fourth and that plaintiff’s commission should be 5%.

A letter from Teeter to plaintiff, dated December 9, 1937, was admitted in evidence when offered by defendant. It acknowledged plaintiff’s air-mad letter (not shown in record) and stated that no sale of the ranch land had been made, and added this: “Personally, I wish that the parties interested in buying this land would get down to brass tacks and stop quibbling about the matter.” He further indicated that he thought the price at which it was offered was a bargain and was surprised that some one had not taken it.

Teeter sent plaintiff a telegram on February 26, 1938, as follows: “Answering yours of 24th will consider $16.00 an acre cash for immediate acceptance as we are negotiating with other parties on sale no exclusive listing to any one.”

We deem it unnecessary to cite authorities supporting the proposition that to entitle a broker to compensation for negotiating a sale of real estate he must have a contract, expressed or implied, with the owner or his representative to that effect, and that the services rendered by him under that contract were the efficient and procuring cause of a sale made later by the owner. And that to sustain a recovery the burden rested upon the broker to establish these facts. The principle was announced by this court in Parkey v. Lawrence, Tex.Civ.App., 284 S.W. 283, and so far as we are able to find, no court of .this State has held to the contrary. It must follow logically that even if the listing or contract for sale is established, plaintiff rests under the further burden of showing that he was the efficient and procuring cause of the sale made by the owner. Keener v. Cleveland, Tex.Com.App., 250 S.W. 151.

The plaintiff in the instant case undoubtedly established the fact that he had. been employed by defendant to sell her land; that his employment began with defendant’s letter of May 22, 1936, above referred to by us. Plaintiff alleged that his agency continued throughout the time between that date and until August 1938, when the land was sold through another agent to J. A. Brite, whom plaintiff claims was his customer ; that defendant at no time withdrew said listing from him, but said listing contract and agreement continued, until the land was sold by defendant. Plaintiff testified that the listing was continuous at all times mentioned. We think he is corroborated in this from May, 1936, until at least in December of 1937. Plaintiff also testified to efforts made by him to sell the property after December, 1937. He said that in May, 1938, Mr. Brite tried to lease the land for grazing purposes but the owner would not lease, and at that time he tried to sell to Brite; he testified that he did not abandon his efforts to sell the property after he'was employed and that his correspondence with defendant continued throughout the two and a half years from May, 1936, until the sale in August, 1938. His testimony in the matters mentioned had no corroboration except in the correspondence shown to have been had between May, 1936, and December, 1937, along with the telegram of date February 26, 1938. That telegram seems to be in response to a wire from plaintiff asking if defendant would consider an offer of $16 per acre cash for the land, to which she replied in the affirmative. By letter of June 30, 1937, plaintiff had been authorized to sell for $16 with the mineral reservations mentioned by us above. Plaintiff’s testimony discloses that with the many changes made by defendant in prices and terms, the matter dragged- along for the two and a half years and he said he was unable to make a sale.

The record shows that Whitney advertised in a Wichita Falls paper offering the land for saleBrite saw the advertisement on about June 1, 1938, and wrote Whitney asking for the price at which it could be bought; after some correspondence back and forth, Brite bought the land for $12.50 per acre and entered into a contract for it in August of that year; the deeds passed .at a later date and the purchase money paid.

As above stated, the trial court instructed a verdict for plaintiff for 5% of the purchase price; plaintiff’s alternative plea for quantum meruit was not considered in entering the judgment.

It is now a well-settled principle in our procedure that the uncorroborated testimony of a party at interest in a suit fails to furnish conclusive evidence for the establishment of a fact. An issuable fact for determination by jury is only presented by such testimony. Thraves v. Hooser, Tex.Com.App., 44 S.W.2d 916; Texas Cotton Growers’ Ass’n v. McGuffey, Tex.Civ.App., 131 S.W.2d 771, writ dismissed; Texas Employers’ Ins. Ass’n v. Roberts, Tex.Com.App., 139 S.W.2d 80, and the many authorities cited in those cases.

Whether or not plaintiff’s agency was continuous during the time in question was one for the jury, there being no-corroborating facts shown to support his own testimony on the point, since his last communication with defendant or her agents. There is nothing in the evidence to corroborate his testimony that he was endeavoring to make a sale subsequent to his conversations with Brite in the spring of 1937; the length of time elapsing between those matters and the date of the sale nearly a year and a half later are somewhat persuasive that he had abandoned his efforts to sell or had had a reasonable time in which to effectuate a sale and if given an opportunity, the jury might have so found, in which event there would have been sufficient evidence to support such a verdict.

In Kitchen v. Lloyd, Tex.Civ.App., 14 S.W.2d 335, it was held that a broker was not entitled to an instructed verdict in his behalf, because although his testimony as to the brokerage contract was uncon-tradicted, he was the only witness thereto, and being an interested party, the weight of the testimony given by him should have been submitted to the jury. Citing Chicago, R. I. & G. R. Co. v. Hammond, Tex.Civ.App., 286 S.W. 483.

It is contended by plaintiff that because the uncontradicted evidence in the . case shows that Brite had been contacted by him in an effort to sell the defendant’s land, that defendant, through Whitney, knew those facts and thereafter sold to Brite at a price satisfactory to seller and purchaser, no further testimony would be required to establish that he was the efficient and procuring cause of the sale. As a general proposition the contention is sound. Keener v. Cleveland, Tex.Com.App., 250 S.W. 151.

A similar principle is announced by the Supreme .Court in Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 297, 195 S.W. 848, but under the facts of that case, which are in many respects similar to those in the instant one, the court said: “A different state of case is presented and therefore a different rule prevails where the broker’s effort with a particular buyer has, after fair opportunity and without any fault of the owner, come to naught, resulting in the failure and termination of his negotiation; and, later, the owner by direct and independent negotiation effects a sale to the same buyer, though upon the same terms originally authorized to the broker. Under such circumstances the broker cannot be justly considered the procuring cause of the, owner’s sale, and the latter incurs no liability to him on that account. Pryor v. Jolly; 91 Tex. 86, 40' S.W. 959; Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884.”

The same rule as that stated in the Goodwin v. Gunter case,, supra, was again announced in Settegast v. Timmins, Tex.Civ. App., 6 S.W.2d 425, writ refused. It now seems to be the settled doctrine in such cases as this. See Tex.Jur., Vol. 7, p. 479, § 82, and the many cases there cited. Here we have an instance in which plaintiff contacted Brite and tried to sell the land in May, 1937, failed in his effort to effect a >ale, and aside from plaintiff’s uncorroborated testimony, never attempted again to sell to his customer for over a year, when a sale was made by another instrumentality, and the court instructed a verdict in his favor without regard to whether or not he had had “a fair opportunity” or whether he had abandoned his efforts to sell to Brite. These were conditions which involved issues of fact for the jury under proper inquiries. Whether or not plaintiff was the efficient and procuring cause of the sale was an essential element in plaintiff’s right to recover. They should have been determined by the jury and not by the court. Defendant’s assignments of error Nos. 7, 8, 10, 11, 12 and 13 raise the questions discussed and complain of the peremptory instruction. They are sustained and require a reversal of the judgment entered.

Another point raised by defendant is that the court erroneously excluded many letters passing between the parties' and certain answers of witnesses given in depositions and in • oral testimony. We think some of .these assignments are good, while there is no merit in others; we shall discuss the former.

We repeat, plaintiff plead and testified that his agency was continuous from May, 1936, until the land was sold in July or August, 1938; that his agency had not been withdrawn nor terminated by the defendant.

Under defendant’s assignments 5 and 6, it is contended that under plaintiff’s allegations and testimony of the several listings, at varying prices and lengths of time to which they-were limited and in view of the long period of time involved, and the ■futile efforts of plaintiff to effect a sale to Brite, rendered certain letters and telegrams from defendant’s authorized agents to plaintiff admissible in evidence to contradict his allegations and evidence, but they were excluded by the court. Some of those complained of read in part.:-

“Peoria, Illinois, Sept. '8; 1937
“Mr. Homer Bi Latham
“Bowie, Texas
“Im Re: Zeigler Ranch near Bowie, Texas
“Dear Mr. Latham:
“Referring to the matter of the sale of above' ranch, will say that I had a talk with Mr. Teeter today, and we are both disappointed to find that we do not seem to be getting any place in the way of a sale of this land.
“It will soon be-time to make a new agricultural lease on the ranch and Mrs. Zeig-ler-wants some definite information as to whether-or not you are going to be able to close the deal you have had on for some time.
“This matter has been in your hands for quite a while so they want me to tell you that if you cannot close the sale by October 1st, 1937, we feel that we should make an effort through another source to dispose of the ranch.
“Please let us hear from you by return mail and greatly oblige.
“With best wishes, I remain,
“Very truly yours,
“(Ed A. Whitney).”

Another letter offered in evidence by defendant and excluded by the court reads, in part, as follows:

“December 13, 1937.
“Mr. Homer B. Latham
“Bowie, Texas
“In Re: Zeigler Ranch near Bow'ie, Texas.
“Dear Mr. Latham:
■ “Your letter of December 10th, 1937, relative to the above land reached me today, and I hasten to reply. I have had a talk with Mr. Teeter and read the fetter you wrote him under date of December 11th, 1937, and summing the whole matter up, we are in a position to tell you that no one has the exclusive sale on this place at the present time, and it has not been leased to any one.
“To be frank with you Mr. Latham, will tell you that I left Bowie about a month ago thoroughly disgusted over the many complications and the unbusinesslike methods that I ran into while there, and I am suggesting to Mr. Teeter that if a deal is not closed by or before December 25th, 1937, that we call off all negotiations, rub out the slate, and start all over again by withdrawing any and all prices quoted in the past.
******
“Mr Teeter has read this letter and it meets with his approval.
“Thanking you for your letter, I remain, with best wishes,
“Very truly yours,
“(Ed A. Whitney).”

Also defendant offered in evidence (excluded by the court) the following telegram:

“Mr. Homer B. Latham, Attorney
“Bowie, Texas
“All quotations and options on Zeigler ranch withdrawn January third.
“Dec. 30, 1937. E. C. Teeter.”

The letters and telegram appear to have been excluded by the court upon the theory that they were offered for the purpose of showing a withdrawal of the listing with plaintiff and a termination of his agency when defendant had not specifically pleaded such withdrawal and termination; she answered only by a general denial. If the question rested alone upon that theory, it would not be without some difficulty to determine whether or not such testimony could be offered by defendant.

Under the provisions of Article 2006, R. C.S.: “A general denial of matters pleaded by the adverse party which are not required to be sworn to, shall be sufficient to put the same in issue.” Our courts have construed the above provisions to mean that if a defendant, desiring to introduce testimony' which does not tend to rebut the facts of plaintiff’s case, but which shows an independent reason why the plaintiff should not recover upon the case stated and proved, then defendant must plead the facts which will avoid the legal consequences of plaintiff’s case, before he is entitled to introduce the evidence. 33 T.J. p. 478, § .55. The same text further lays down this rule: “Usually the averments of the petition settle any question as to whether the defendant must .plead any particular matter specially; that is to say, if the plaintiff has anticipated some defense that would more properly have been raised in the defendant’s pleading, then the defendant need not plead such facts.”

Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 747, 64 L.R.A. 349, 104 Am.St.Rep. 857, 1 Ann.Cas. 252, was an insurance policy case which involved exceptions to liability; after stating parts of plaintiff’s petition and referring to the answer which it was claimed to be insufficient to authorize the introduction of certain testimony, the court said: “It is a well-established rule of pleading in our court that facts alleged by one party need not be pleaded by the other. Lyon & Gribble v. Logan, 68 Tex. [521] 525, 5 S.W. 72, 2 Am.St.Rep. 511; Gaston v. Wright, 83 Tex. [282] 286, 18 S.W. 576.”

In this case, the plaintiff plead that, “defendant at no time withdrew said listing but on the contrary defendant continued negotiations with plaintiff concerning the sale of said property until some 30 or 60 days prior to November 10, 1938.” Any withdrawal of the listing with plaintiff was a special defense which under the rule above announced should have been plead by defendant. From the last above-quoted part of plaintiff’s petition, it will be observed that he anticipated this defensive matter and negatived it in his petition. Under such a state of the record we believe defendant would have been entitled to prove a withdrawal of the listing, if she had testimony supporting it. When the testimony was offered by defendant and rejected by the court, defendant urged its admissibility both upon the ground that plaintiff had plead the listing was not withdrawn from him and defendant interposed a general denial thereto, and further, “To impeach the witness (plaintiff) to show that he didn’t have the sale.” We take the last reason assigned to mean that because plaintiff had testified that his listing and agency were continuous from the beginning of the negotiations until the sale was made, the proffered testimony was admissible to contradict it. The reasons assigned by defendant in support of her contention of the admissibility of the testimony, we think, are sufficient to support her bill of exception to its exclusion; for the reason last urged the testimony should have been admitted.

We likewise think the testimony should have been admitted under the pleadings. Where, as in this case, plaintiff anticipated defensive matters, such as that the listing with him had not been withdrawn or terminated, and defendant plead the general denial, she should not have been denied the right to offer testimony because she had not duplicated the allegation of plaintiff in an affirmative form; the pleadings were sufficient to raise the issue and when testimony was offered by either party on the issue, it should have been admitted. A statement of the rule as contended for by plaintiff was announced in Stephenson v. Stewart, Tex.Civ.App., 285 S.W. 908, but it does not appear from that opinion that plaintiff had so anticipated defendant’s defense by pleading that such conditions did not exist; in this lies the distinction between that and the instant case. We think the letters and telegrams tended to show impatience on defendant’s part at the long drawn out efforts of plaintiff to sell the property, that he had had much time in which to effect a sale and that in defendant’s judgment no progress was being made, that his efforts had all come to naught and presented a jury question of whether at the date of the sale plaintiff’s listing was effective and whether or not he was the efficient and procuring cause of the sale. These questions were for the jury and should not have been taken away by the court with an instructed verdict. Fifth and sixth assignments of error raise the question presented and are sustained.

Others of the twenty-eight assignments complain of the -rejection of evidence, and without enumerating all, they involve letters to, from and concerning a proposition of one Gracy to buy or rent the land and answers to inquiries in interrogatories to the witnesses Teeter and Whitney, and answers of Brite while testifying orally. We have examined each of these and'find no merit in them and they are overruled.

Summing up the whole case, we hold that reversible error is shown in the rejection of the evidence above discussed, and the giving of an instructed verdict for plaintiff when jury questions were involved.

For the errors pointed out, the judgment of the trial court must be reversed and the cause remanded for another trial, in accordance with these conclusions.

Reversed and remanded.