author: SPEER, Justice.

text:
    EDMONDSON v. CARROLL.
    No. 13974.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 27, 1939.
    Rehearing Denied Dec. 8, 1939.

      Charles T. Rowland, of Fort Worth, for appellant.
    Slay & Simon and H. J. Zimmerman, all of Fort Worth, for appellee. •
   SPEER, Justice.

This suit originated in 1927, and only enough of its early history will be stated to disclose the nature of this appeal.

Ralph Carroll, for himself and as trustee for others, was, prior to July 16, 1927, the owner of two notes aggregating $10,-000, secured by a deed of trust lien on certain lots in Waxahachie, Texas. Upon these lots was a brick building in which and attached thereto was a freight eleva-, tor. At the date mentioned, W. T. Pittman was the record owner of the building and lots, subject to Carroll’s debt and lien.

On July 16, 1927, Carroll filed suit in the District Court of Tarrant County for his debt and foreclosure of his lien. Pittman and others were made parties defendants. On the day suit was instituted Carroll caused to be issued a writ of sequestration, and had it placed in the hands of the sheriff of Ellis County for execution. On the following Monday the officer took into his possession the real estate with the building thereon. On Sunday preceding the date of levy, Pittman sold and gave possession of the elevator to H. Edmond-son, who removed it out of the building and hauled it to Fort Worth, Texas, on the same day.

The suit of Carroll proceeded to judgment for something over $11,000, and foreclosure of his lien. The property was sold out under execution and Carroll became the purchaser for approximately $250, which amount was credited on the judgment.

Thereafter, Carroll learned that Edmond-son had the elevator and its appurtenances in his possession, dismantled as it was when he hauled it from Waxahachie. Carroll filed suit against Edmondson and Pittman for the value of the elevator and to foreclose his lien thereon. Carroll made the statutory affidavit for sequestration and caused a writ to be levied on the property on September 26, 1927. The equipment at that time was still dismantled and stacked in Edmondson’s warehouse. The sheriff, in making the levy, did not molest the equipment, but potentially took possession, being advised by Edmondson that he would replevy it. Edmondson filed his replevy bond on September 27, 1927, and the officer returned that bond with the writ. Ed-mondson resisted Carroll’s suit, alleging that he in fact had purchased the elevator prior to the institution of the foreclosure suit and had no knowledge that such action was pending when the elevator was received by him. He further prayed for judgment over against Pittman, who had sold him the elevator, for any amount that Carroll might recover against 'him, Ed-mondson. Daniel S. Hartson, S. C. Cunningham, R. C. Sweeney and C. M. Butcher filed a plea in intervention, claiming to own and asking to be established a second lien on the property. Upon a trial, the court found that no process was issued or served on the plea ip intervention, no appearances had been made thereon, and dismissed the action and claims of interven-ers. Judgment was entered for Carroll against Edmondson and Pittman and for Edmondson over against Pittman. Upon appeal to this court by Edmondson, the judgment was reversed because the wrong measure of damages had been applied by the court. See Edmondson v. Carroll, Tex.Civ.App., 28 S.W.2d 250, affirmed by Commission of Appeals, 41 S.W.2d 64.

After reversal by this court of the previous judgment, the plaintiff amended his pleadings so as to meet conclusions expressed by us and sought his damages for the conversion by Edmondson and Pittman of the elevator. Edmondson again answered by pleading over against his co-defendant, Pittman, to recover any sum that might, be awarded to Carroll against him. In addition, Edmondson sued Carroll in cross-action for actual and exemplary damages sustained by reason of the wrongful and malicious issuance and service of the writ of sequestration. Plaintiff Carroll plead the statute of limitations against Edmond-son’s cross-action and that plea was by the court sustained. Upon another trial, Carroll recovered judgment against Edmond-son for $1,500, and since the court had sustained Carroll’s plea of limitation, Edmond-son recovered nothing on the cross-action. Edmondson again appealed to this court, and by an opinion reported in Edmondson v. Carroll, 65 S.W.2d 1107, 1110, writ dismissed, the judgment of the trial court was affirmed in part and reversed and remanded in part, in this language:

“The cause is remanded to the trial court for a trial of the cross-action of appellant [Edmondson]. The judgment, so far as it disposes of appellee’s [Carroll’s] action for damages, is approved at the cost of appellee, and the trial court will give effect hereto in the judgment upon trial of the cross-action.”

Upon the remand of the case under the above order, Carroll paid the costs of the appeal. Edmondson had previously paid $169 of that cost and that sum was paid to the District Clerk by the Clerk of this court for delivery to Edmondson. Thereafter, Carroll applied for and procured a writ of garnishment against the District Clerk in an effort to reach the $169 held by him for Edmondson.

A fourth amended plea in cross-action was filed by Edmondson against Carroll, in which he sought to recover actual and exemplary damages for the wrongful issuance and service of both the writs of sequestration and garnishment. This amended pleading contained all necessary allegations to entitle Edmondson to recover under proper proof.

Jury trial was had upon special issues. The issues and answers were as follows:

“Question One: Do you find from a preponderance of the evidence that Ralph Carroll did not, in good faith, make the affidavit upon which the writ of sequestration in question was issued and served — that is, that said Ralph Carroll did not, at said time, have reasonable grounds for believing that said Edmondson would injure or ill treat the freight elevator, as stated in said affidavit for said writ of sequestration? Answer: Did not.
“Question Two: -If you have answered the preceding question, yes, and only in that event, then answer: Do you find from a preponderance of the evidence .that H. Edmondson sustained actual damages — that is, financial loss — by reason of the issuance and service of said writ of sequestration? Answer: No.
“Question Three: Do you find from a preponderance of the evidence that said Edmondson was kept from being entitled to collect rent on the building in which said elevator was installed solely because he was prevented from installing said elevator? Answer: No.
“Question Four: From a preponderance of the evidence, when do you find said elevator was installed in said building and put in condition for use and service? Answer: On or about Oct. 15th, 1927.
“Question Five: Do you find from a preponderance of the evidence that the installation of said elevator in said building was delayed solely because of the incomplete condition of said building in which it was installed? Answer: No.
“Question Six: If you have answered Question Two in the affirmative, and only in that event, then answer: From a preponderance of the evidence, in what amount, if any, do you find said Edmond-son has sustained actual damages?
“You are instructed that in arriving at your answer to this question, you must not take into consideration nor allow said Ed-mondson any sum as attorneys’ fees, nor for time lost from his work or while attending court.
“Answer: -
“Question Seven: Do you find from a preponderance of the evidence that said Edmondson suffered any loss of rent on his building solely by reason of his being unable to sooner install said elevator in said building? Answer: No.
“Question Eight: If you have answered the preceding question, yes, and only in that event, then answer: From a preponderance of the evidence, what amount of rent, if any, did said Edmondson lose on said building solely by reason of the delayed installation of said elevator in said building, if you find that such installation was delayed?
“Answer: -
“Question Nine: Do you find from a preponderance of the evidence that the loss of rent, if any, incurred by said Ed-mondson on said building was caused solely by reason of said building not being sooner completed? Answer: Yes.
“You are instructed that by the word ‘malice’, as used herein is meant wickedness of purpose or a spiteful or malevolent design against another person — a purpose to injure another person or a wanton and wilful act which shows a reckless disregard of the rights of another.
“Bearing in mind the foregoing definition, you will answer the following question :
“Question Ten: From a preponderance of the evidence do you find that Ralph Carroll made the affidavit upon which the writ of sequestration was issued and served herein with malice toward H. Ed-mondson ?
“Answer: -
“Question Eleven: If you have answered the preceding question, yes, and only in that event, then answer: Do you find from a preponderance of the evidence that H. Edmondson is entitled to be awarded damages against the plaintiffs herein, as exemplary damages by reason of the malicious or wanton and willful act of Ralph Carroll in making the affidavit upon which said writ of sequestration was issued and served?
“Answer: -
“You are instructed, in this connection, that exemplary damages are damages which may be awarded as a punishment against a person or persons for an act done with malice or an intent to injure another person.
“Question Twelve: If you have answered the preceding question, yes, and only in that event, then answer: In what amount, if any, do you find from a preponderance of the evidence that said Edmondson is entitled to as exemplary damages against the plaintiffs herein?
“You are instructed that in answering this question, you may take into consideration any amount which said Edmondson has paid or become liable to pay as attorneys’ fees occasioned by the issuance and service of said writ of sequestration, and the value of whatever time, if any, which said Edmondson lost because of the issuance and service of said writ of sequestration. Any amount which you may find as exemplary damages herein, if any, must be reasonably proportionate to the amount of actual damages, if any, you have allowed in answer to preceding questions, if you have found in answer to such questions that he has sustained any actual damages.
“Answer: -.”

The trial court entered judgment upon the verdict of the jury, in which judgment it was recited that the issues not answered by the jury were, in the light of those that were answered, immaterial. That the writ of garnishment procured to be issued and served by Carroll, upon which Edmondson sought to recover daniages, was not wrongful as a matter of law, and that Edmondson was not entitled to recover therefor. That Carroll was entitled to recover a judgment on said verdict as against Edmondson’s cross-action. The judgment further contains a recitation of the previous judgment in favor of Carroll against Edmondson for $1,500, which this court had ordered to be given effect, and the court complied therewith, and also made effective Edmondson’s judgment for a like amount against Pittman. The judgment further provides that Edmondson take nothing against Carroll by virtue of the cross-action. Edmond-son’s motion for new trial being overruled, he has perfected his appeal to this court. H. Edmondson is appellant and Ralph Carroll is appellee.

Appellant has brought into his brief fifty-four assignments of error, but many of them are not briefed and we may safely assume that they are not relied upon for reversal; they are waived.

This being a suit in cross-action for damages for the wrongful and malicious suing out of a writ of sequestration and a writ of garnishment, naturally the assignments relied upon must be considered in the light of the relief sought. This being true, we shall discuss them in groups in an effort to ascertain if there was error in the manner of submitting special issues and refusal by the court to submit those requested. Appellant submitted and requested the court to give 42 special issues, all of which were by the court refused, and error is assigned to the action of the court in each instance. Neither of the requested issues was in a form that the court could have properly given it. The burden of proof was not placed on either party to the suit, and if either had been given by the court in the form requested, reversible error would have been committed. It is provided by Article 2186, R.C.S., that either party may present to the trial court such special instructions as he desires to -be given and it becomes the duty of the court to give such of them as he deems proper and to reject those not considered proper. Article 2190, R.C.S., Vernon’s Ann.Civ.St. art. 2190, provides that when the court submits a case on special issues he shall submit it upon all the issues made by the pleadings and evidence. Failure to submit an issue will not be deemed ground for reversal of the judgment unless its submission has been requested in writing, by the party complaining of the judgment.

Construing these statutes, it has been uniformly held by our courts that if a party whose duty it is to present and request the giving of an issue, does so, the requested issue must be in writing and in such form as it may be properly given. 41 Tex.Jur., p. 1050, sect. 245; Speer’s Special Issues, p. 371, sect. 251; Kaiser v. Newsom, Tex.Civ.App., 108 S.W.2d 755, writ dismissed.

By Article 6840, R.C.S., it is provided that the writ of sequestration shall issue in the following cases:

“Section 2. When a person sues for the title or possession of any personal property of any description, and makes oath that he fears the defendant or person in possession thereof will injure, ill-treat, waste or destroy such property, or remove the same out of the limits, of the county during the pendency of the suit.”

By Article 6841, R.C.S., it is provided' that an affidavit for sequestration shall contain certain requisites; as applicable to this-case, they are, in substance: (2) If the suit be to foreclose a lien on property, it must appear that such lien exists, that it is just and unsatisfied and the amount of same unsatisfied, and the date when due. '(3) The property must be described with such certainty that it may be identified, giving the value thereof, and the county in which it is situated.

The affidavit for the writ in this case contained all of the above requisites; it is not contended that the affidavit was not correct in form; but that the statements therein were not true; that the writ was not sued out in good faith with reasonable or probable grounds upon the part of affiant to believe they were true. That the writ was thus procured falsely, wrongfully, and maliciously, for the purpose of injuring and harassing the defendant, for all of which actual and exemplary damages were sought.

To give effect to appellant’s requested issues, we find that Nos. 1 to 14 and 17 to 19, all inclusive, presented in as many different ways some one of the elements of the requisites of the affidavit for the writ. By reference to the first special, issue given by the court, hereinabove quoted, it will be observed that the court inquired of the jury, properly placing the burden of proof, whether appellee did not at the time he made the affidavit, have reasonable grounds for believing that said appellant would injure or ill-treat the freight elevator as stated in said affidavit for the writ. The issue was answered, “Did not”.

We pause here long enough to say that the form of the issue as framed and submitted by the court could have been vastly improved upon, but it did in fact inquire if appellee had reasonable grounds to believe that appellant would injure or ill-treat the property in his possession, and this is the basis for appellant’s suit. This was the ultimate issue to be determined on that phase of the case.

In appellant’s brief, discussing the merits of his requested issues referred to, he argues that the issue, as submitted by the court, was improper because (1) it was a general charge, and (2) it was multifarious, having embraced more than one fact issue to be found by the jury upon an answer of “yes” or “no”. This attack on the first special issue submitted now comes too late in this case. No objection or exception was made by appellant to any part of the court’s charge, before it was submitted to the jury. Not having objected, before its submission, to the manner in which the issue was framed, appellant waived any errors therein and in law, consented that it be given as prepared by the court. Article 2185, R..C.S.; Belzung v. Owl Taxi et al., Tex.Civ.App., 70 S.W.2d 288, writ dismissed; Miller v. Fenner, Beane & Ungerleider, Tex.Civ.App., 89 S.W.2d 506, writ dismissed; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920, 921. In the last cited case, the Supreme Court said, with respect to the point being discussed: “If the court had given them, or either of them [the requested special issues], it would have necessitated a new trial or a reversal of the judgment on appeal. Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex, [126], 127, 187 S.W. 184.”

The same is true in this case; we have shown that the requested charges were not in proper form to be given by the court, and to have given them or either of them would have required the granting of a new trial or a reversal on appeal, when the questions were raised. Again, as we view the situation here, even though if appellant were in a position to complain of the first issue submitted, we fail to see how he could consistently do so, for it was answered in his favor. The answer to that issue was to the effect that Carroll did not have reasonable grounds, at the time he procured the writ, to believe that Edmondson would injure or ill-treat the property, as stated in the affidavit.' This is identically what appellant contended for, and upon which theory he based his suit for actual damages.

Irrespective of what we have said as to the rule requiring a party to object and except to a court’s charge before complaining on appeal, and the necessity of presenting requested issues in a form proper to be given, we have studied carefully each and every one of appellant’s requested issues with a view to determining whether or not there was fundamental error in the record. We find that each of said requested issues, although they failed to place the burden of proof, was embraced by the court in his main charge; excepting those relating to the writ of garnishment, which we shall have occasion later to discuss. The court is never required to submit an issue more than once; no objection being raised by appellant to the manner in which the court proposed to submit them, there was no error shown by a refusal to again submit them as requested by appellant.

In this connection, it is asserted by appellant in his brief that he had plead that many of the grounds for sequestration claimed in the affidavit were untrue and, “Besides in the long litigation Carroll failed to establish any character of right, claim, lien or otherwise to the said freight elevator; and the evidence showed that none of the allegations of said affidavit existed at the time of its making.”

We cannot agree with the contention. as made. The existence of Carroll’s debt, his lien on the elevator as a part of the real estate, the sale by Pittman to Edmondson and the amount recovered in the second trial were all adjudicated and finally determined by the trial court, and affirmed by this court, Edmondson v. Carroll, 65 S.W.2d 1107, supra. These matters were not subject to review upon the trial from which this appeal is prosecuted.

Furthermore, upon the trial of this case it was stipulated that prior to the institution of the suit by Carroll he was'the owner of an indebtedness of $10,000, secured by a lien on the Waxahachie building and lot upon which it was situated; that the elevator was in the building and was attached to it and became a part of the real estate, and that condition existed at the time the writ of sequestration was issued in July of 1927.

The jury having found by the first issue that Carroll did not have reasonable grounds to believe, at the time he procured and caused the writ of sequestration to be levied, that appellant would injure or ill-treat the property while in his possession, it was incumbent upon appellant to establish that he suffered damages as a result thereof. This was determined against him by the jury, in answer to the second special issue. It is contended that the answer was against the great preponderance of the evidence and not supported by any evidence. We are not at liberty to pass upon whether .or not it was against the preponderance of .the evidence; this was a matter for determination by the jury. Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed, judgment correct; Worth Finance Co. v. Charlie Hillard Motor Co., Tex.Civ.App., 131 S.W.2d 416. Whether or not there was any evidence of probative force to support the jury finding is a question of law of which this court may take cognizance. The undisputed facts, as disclosed by the evidence, are that the dismantled elevator was stacked in appellant’s warehouse when the levy was made on September 26, 1927. In fact, appellant made the writ and officer’s return a part of his pleadings. The officer making the levy potentially took possession of the property, did not molest or disturb it, but being informed that appellant would replevy it, so stated in his return. Appellant filed his replevy bond on September 27, 1927, and thereafter retained possession of the elevator. It is contended that the levy of the writ was wrongful, and that appellant lost three months rent on his building, at $350 per month, because of the wrongful acts of appellee in causing the writ to be levied. It also appears that at the time the writ was served, appellant’s building was incomplete and that the elevator was installed on about October 15, 1927, and that under his rental contract with the tenant by which rentals were to begin, the building was finished and accepted by the tenant and rentals began with December 15, 1927. In response to special issue 3, the jury found that appellant was not prevented from collecting rent solely because he was prevented from installing the elevator. Issue No. 7 is virtually to the same effect. Again special issue 9 and its answer fouhd that any loss of rent sustained by appellant was solely because his. building was not finished. But, appellant contends that in any event he was entitled to.recover nominal damages for the time lost and labors performed by him in making the replevy bond. The bond was signed by individuals and it does not appear that any premium or consideration was promised or paid for such signatures.

In the view we take of the evidence, we think there was an abundance of undisputed testimony that the affidavit was true, wherein it was asserted that affiant feared appellant would injure or ill-treat the property during pendency of the suit. As stated, when the writ was served, the elevator and its necessary equipment were dismantled and stacked in appellant’s warehouse. Appellant had told a partner of Carroll that he had purchased the property and was going to install it. To do so would require the fastening of certain parts to a concrete base and heavy wooden timbers to the walls of the shaft. If appellee should recover in the suit the property would have been diminished in value (injured or ill-treated), to the extent of damages done to the heavy timbers, and the expense of again dismantling it.

We now revert to appellant’s contention that the answer to special issue No. 2 was not supported by the evidence. By answer to that issue, it was found that appellant had suffered no actual damages as a result of the issuance and service of the writ of sequestration. It is urged that when the jury answered the preceding question, to the effect that the writ was wrongfully levied, appellant was at least entitled to nominal actual damages. We have care-' fully studied the opinion in Graham v. Walters, Tex.Civ.App., 45 S.W.2d 281, cited by appellant, and do not consider that .it supports the contention made by him. No light would be shed upon the point before us to review' the questions there discussed. The only similarity between that and this case is_ that in the case cited it was held that where it was found that the writ of sequestration was wrongfully issued defendant would be entitled to recover all damages sustained by him as a result of the wrongful act. The announcement is fundamentally correct, but the point here is that the jury found appellant had suffered no damages as a result of the wrongful issuance and service of the writ.

The question of whether or not appellant sustained any damages by reason of the service of the. writ was fairly put to the jury and answered against his contention. All of the facts were in evidence and this being resolved against appellant, we cannot substitute our opinion for that of the jury. See the authorities above cited, on this point.

Several assignments are urged by appellant, in which he complains because the court did not submit his requested issues on exemplary damages. As above stated, neither of these requested issues placed the burden of proof on either party and no excéption or objection was taken to the manner in which the same issues were submitted by the court. By reference to the sixth special issue above quoted, it will be noted that the court submitted the issue of exemplary damages, conditioned that the jury had answered special issue No. 2 in the affirmative, that is that appellant had sustained any actual damages. But as we have seen,' the inquiry as to actual damages was answered in the negative and no answer was made to the issues inquiring about exemplary damages. A group of assignments are presented complaining of the court receiving the verdict of the jury and entering judgment thereon when none of the issues pertaining to exemplary damages was answered. For reasons already stated, there was no error in the court’s refusal to give the requested issues. Nor do we think there was error in entering judgment on the verdict rendered, when no- answers were made to the inquiries about exemplary damages. It is almost axiomatic in our jurisprudence, in cases of tort, such as here relied upon, that a party may not recover exemplary damages when actual damages are not sustained. 13 Tex.Jur., p. 240, sect. 132; Sanders v. O’Connor, Tex.Civ.App., 98 S.W.2d 401, writ dismissed; Jenney v. Jackson, Tex.Civ.App., 46 S.W.2d 418, and the cases there cited. It follows, then, that when no exemplary damages could have been recovered, issues which submitted that question to the jury become immaterial and the judgment to be entered would not be affected, regardless of how they were answered. The judgment, as entered, recited that the court, in view of the verdict returned, considered the unanswered issues immaterial. In this we think he was correct, and no error is presented by the assignments. 41 Tex.Jur., p. 1222, sect. 358. Aside from this, we have been cited to no testimony, nor have we been able to find such in the record, which tends to show that the • writ was procured and caused to be served under the conditions described in the court’s charge in connection with exemplary damages. The explanation given by the court (and assented to by appellant) reads:

“You are instructed that by the word ‘malice’, as used herein is meant wickedness of purpose or a spiteful or malevolent design against another person, a purpose to injure another person or a wanton and wilful act which shows a reckless disregard of the rights of another.” The court is never required to submit an issue upon which there is no evidence to support it.

Another phase of appellant’s cross-action was based upon the wrongful, malicious and wicked procurement and service of a writ of garnishment by appellee upon W. E. Alexander, District Clerk, under which writ $169 of appellant’s funds were im--pounded. The affidavit for the writ was made by appellee’s counsel and sworn to on August 31, 1934. This was subsequent to the hearing by this court of the appeal from the $1,500 judgment in appellee’s favor, 65 S.W.2d'1107, supra. The affidavit is in statutory form for garnishment after judgment. It recites the existence of the judgment for $1,500; that said judgment is valid and subsisting and wholly unpaid. It further recites: “And said defendant (Edmondson) has not, within affiant’s knowledge, property in his possession within this State subject to execution sufficient to satisfy said judgment * Upon the trial .appellant testified to the ■ownership of property in Tarrant County, subject to execution, which was of a value greater than the amount of the judgment. He requested the giving of eight special issues on his claim for damages, growing out of the garnishment writ. Requested issue No. 24 was the basis for the subsequent seven. It reads: “From the evidence state and find if the affidavit for garnishment against W. E. Alexander, District Clerk, the statement therein contained that H. Edmondson did not have properties in the State sufficient to make $1,500.00, was true or false?”

The requested issues were all refused by the court. Even if the truth of the affidavit which stated in substance that appellant did not, within affiant’s knowledge, have property in his possession sufficient to pay the debt, had been the subject of inquiry, it would have been improper to have submitted an issue worded as the one requested. If there had been any testimony on the point, the only proper inquiry would have been whether the statement, as made by affiant in the affidavit, was true or false. The trial court found by the judgment as entered that the writ of garnishment was not wrongful as a matter of law, and that therefore appellant could not recover anything based thereon. We think the trial court properly disposed of that question. There was not a word of testimony tending to show that the person who made the affidavit for garnishment had any knowledge of certain properties which appellant said he owned; this is the only question involved in the affidavit, except the existence of the judgment upon which the writ was based. The existence of the judgment was undeniably established. This court speaking through Mr. Justice Power, in Griffin v. Cawthon, 77 S.W.2d 700, writ refused, clearly expresses our views and we here refer to what is there said, and upon authority of that case, we overrule the assignments of error in regard to the garnishment writ.

Other assignments complain because the trial court overruled the motion for new trial, based upon conflicts in the jury verdict in answers to special issues three and five. We think, under the facts developed, each of the answers was consistent with the other, and hence, we see no error in the ruling.

The fifty-second assignment challenges the correctness of the court’s judgment in giving effect to. the $1,500 judgment in favor of Carroll against Edmond-son, upon the grounds that the claim upon which the judgment was rendered in fact belonged to the co-partnership of Butcher & Sweeney, composed of R. C. Sweeney, C. M. Butcher and Ralph Carroll. It is contended that the court should have vacated that judgment upon the trial from which this appeal was taken. The question presented was before the trial court when the judgment was entered in 1932, and resolved against appellant’s contention. This court affirmed that part of the judgment (65 S.W.2d 1107, supra) and reversed the case for a hearing upon the cross-action only, as hereinabove shown. There is no merit in the contention and it is overruled.

The fifty-third assignment is a suggestion of fundamental error. The matters complained of were not presented to the trial court in the motion for new trial and therefore can only be reviewed by us if fundamental error is shown. The transcript before us reflects that the trial was had on appellee’s First Amended Supplemental Petition and appellant’s substituted (September 26, 1938) Fourth Amended Answer and Cross-Action, for pleadings filed September 17, 1934. The judgment from which this appeal was had bears date of October 5, 1938. There is also found in the transcript a plea of intervention by Daniel S. Hartson, S. C. Cunningham, R. C. Sweeney and C. M. Butcher, filed November 8, 1927. The judgment before us does not mention or in any way attempt to dispose of those interveners. It is here contended that for that reason the judgment appealed from is not a final one, and consequently is fundamentally wrong.

We are not unmindful of the well established rule of law that a judgment must dispose of the rights of all parties to the action. By the date of the filing of the plea in intervention it will be observed that it was prior to rendition of the judgment entered on April 4, 1929, from which an appeal was taken to' this court and reported in 28 S.W.2d 250, by Supreme Court in 41 S.W.2d 64. We may take judicial knowledge of proceedings had in this court. In the judgment of the court from which that appeal was taken, the trial court stated substantially that no citation having been issued or served in the plea of intervention, and that..'no appearances having been made therein, the alleged action by interveners was dismissed. No appeal from that order was prosecuted by the interveners and that judgment insofar as they were concerned became final. Neither of the two previous records on former appeals nor the one now under considera-, tion discloses that interveners ever thereafter participated in any of the trials, nor that any other party answered or appeared in response to their plea. The appeal bond made by appellant in this case only names Ralph Carroll (appellee) as a party adversely interested in the litigation. In neither of the two last appeals do inter-veners as such appear to have been involved in this litigation. The suggested fundamental error presents no impediment to the validity of the judgment now under consideration, and it must be overruled.

To avoid extending this opinion to a greater length we have refrained from discussing each assignment separately and from giving all the reasons which could be urged in support of our conclusions herein expressed. But we have considered carefully each assignment and have concluded that they should all be overruled.

The judgment of the trial court is affirmed and it is so ordered.


source: Caselaw Access Project

author: McClendon, chief justice.

license: Public Domain

text:
    FEDERAL UNDERWRITERS EXCHANGE v. WALKER et al.
    No. 8917.
    Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1939.
    Rehearing Denied Nov. 29, 1939.

      White, Taylor & Gardner, of Austin, and Benbow, Saunders & Holliday, Claude Williams and Touchstone, Wight, Gormley, Strasburger & Price, all of Dallas, for plaintiff in error.
    Bryan & Maxwell, of Waco, Jim W. Weatherby, of Kerrville, and Felts, Wheeler & Wheeler, of Austin, for defendants in error Jess and Jewel Walker.
    Chas. O. Betts, of Austin, Cecil D. Redford, of San Antonio, and Yelderman & Yelderman and Gibson R. Randle, both of Austin, for defendant in error Lloyds America.
    Greenwood, Moody & Robertson and Herman Jones, all of Austin, for defendant in error C. B. Cook.
   McClendon, chief justice.

This is a workmen’s compensation case. The Vincennes (Vincennes Steel Corporation) was the employer; Dudley Walker (W. D. Walker) was the employee, and was killed in the course of his employment; the Federal (Federal Underwriters Exchange) was the insurance carrier; and Jess Walker and wife, Jewel Walker, were father and stepmother, respectively, of Dudley Walker. The Federal contended that the Jones Company (Clarence Jones Construction Company), which carried compensation insurance with the Lloyds (Lloyds American) was a sub-contractor under the Vincennes, and that Dudley Walker was an employee of the Jones Company and not of the Vincennes. The judgment (upon a special issue verdict) awarded the lump sum of $3,230.74 each' to Jess and Jewel Walker' against the Federal. The latter has appealed.

The contentions of the Federal relate to the following subjects: (1) exclusion of testimony of Jennings (W. M. or Wm. Jennings) offered in support of the Federal’s assertion that Dudley Walker was an employee of the Jones Company and not of the Vincennes; (2) allowing Jewel Walker to intervene in the suit; (3) submitting the question of lump sum settlement in a single issue as to both Mr. and Mrs. Walker instead of in separate issues as to each; and (4) failure to place the burden of proof upon the Walkers to establish by a preponderance of the evidence the amount of weekly wage of Dudley Walker.

Upon the exclusion of Jennings’s testimony,-we make the following statement: The Vincennes had contracted ' with the State Highway Department to construct the Montopolis bridge, over the Colorado River on highway 71, including the excavation. February IS, 1937, the Federal filed with the Industrial Accident Board the requisite notice showing that the Vincennes had become a subscriber to the employers liability act and that it had a compensation policy with the Federal as insurance carrier effective January 20, 1937, and expiring January 20, 1938, giving the number of the policy. This notice was signed by the Vincennes, “By F. R. Sargent, Vice Pres.” It was also signed and filed by the Federal. The policy itself was introduced in evidence. The premium was predicate^ upon the amount of the pay rolls of the Vincennes, and the policy provided for monthly pay roll adjustments. As this was a project to which the Federal Government contributed, weekly pay rolls were required to be filed with the Highway Department. These pay rolls were filed by the Vincennes and showed that all the work done under the contract was for the Vincennes. Jennings was carried on the pay rolls as superintendent, and the pay rolls were signed by him, he describing himself as superintendent and stating that he was an employee of the Vincennes. Dudley Walker was carried on the pay rolls as excavation foreman up to April 7, 1937, the date he received his fatal injuries. The employees were paid by check drawn on the American National Bank of Austin, Texas, signed “Vincennes Steel Corporation by W. M. Jennings, Superintendent.” These included the pay checks of Dudley Walker and Jennings. Premiums on the compensation policy were adjusted and paid by the Vincennes to the Federal on the basis of these pay rolls. The wages paid Dudley Walker, as shown by the pay rolls, were taken into account in estimating the amount of premiums actually paid on the policy. The rules of the Highway Department required that all subcontracts be submitted to and approved by the Department, and no subcontract was allowed covering more than twenty per cent, of the entire contract. No subcontract was filed with the Department, the entire dealings in so far as concerned the Department being with the Vincennes alone. There was filed with the Department, however, what is termed a lease contract under which the Jones Company agreed to lease to the Vincennes certain equipment to be; used in connection with certain specified portions of the work, the consideration clause reading: “In consideration for the furnishing and use of the aforesaid equipment, said Party of the First Part (the Vincennes) agrees to pay to said Party of the Second Part (the Jones Company), to cover all rental, the remainder of the profit left from 95% of the value of the above twelve items as paid for by the State, after deducting the cost of labor, materials and all other expenses properly charged to the completion of these items.”

May 18, 1936, “Clarence Jones Construction Company by Clarence Jones, Applicant,” applied to the Lloyds for compensation insurance for the period 5 — 18— 1936 to 5-18-1937, to cover, among other specified operations, concrete bridge construction, anywhere in the State of Texas. The application showed the applicant to be an “Individual,” in response to the inquiry: “Individual, co-partnership, corporation, estate?” Policy issued under this application on a form known as “Standard Workmen’s Compensation and Employers Liability Policy,” with provision for premiums based upon amount of pay rolls similar to those in the Federal’s policy. The Jones Company never submitted to the Lloyds any pay rolls covering the Montopolis bridge construction, and never paid any premiums to the Lloyds predicated upon work on that project.

The above facts were established by un-contradicted evidence.

The award of the Industrial Accident Board was on October 22, 1937, and this suit was filed by the Federal, to set aside the award, November 22, 1937. In its second amended original answer, filed October 24, 1938, the Federal for the first time asserted that Dudley Walker was an employee of the Jones Company and not of the Vincennes; and while admitting that it had received and accepted premiums from the Vincennes based upon pay rolls covering the items specified in the lease agreement amounting to $3,541.58 (which sum, the pleading asserted the Federal “here now tenders into this court * * * to be delivered to whomsoever party the court may hold is entitled.thereto”), it asserted, nevertheless, that it was not estopped to deny liability under the policy because it collected the premiums in accordance with the .express terms of the policy without knowledge of the fact that Dudley Walker was-an employee of the Jones Company and not of the Vincennes.

The excluded testimony of Jennings, which was taken by deposition in Louisiana, on October 20, 1938, may be substantially stated as follows:

The Jones Company was a copartnership, the partners being Clarence Jones and Jennings. Jones attended to the financial arrangements and Jennings’s “part was to handle the making of estimates, figure the bids and do the actual superintending of the construction work, in the way of building of bridges, roads, culverts, pavements, and such like.” The net profits and losses of the partnership were to be shared % by Jones and ⅝ by Jennings. He enumerated several prior construction contracts of the Jones Company, including a highway contract in Burnet County. The Jones Company put in a bid for the concrete and foundation work (items listed in the lease agreement) on the Montopolis bridge contract. This bid was -embodied in the Vincennes bid, the Jones Company being a “silent bidder.” The lease contract was a “subterfuge,” executed to evade the Highway regulation that no subcontract would be allowed covering more than 20% of the entire contract. There was a subcontract in writing between the Jones Company and the Vincennes, but he did not know what became of it. Its terms were:

“All equipment and tools was to be furnished by Clarence Jones Construction Company for the concrete and foundation work and it was also to make the payrolls for this work, in addition it was to pay its nroportionate part of the bond required of Vincennes Steel Corporation, guaranteeing the performance of its contract on the Montopolis Bridge job. When Clarence Jones Construction Company failed to carry out its obligation to meet the payroll on the concrete and foundation work on the Montopolis Bridge job, another contract was entered into between Vincennes Steel Corporation and Clarence Jones. Construction Company, in which contract Clarence Jones Construction Company agreed to pay the Vincennes Steel Corporation 5% of the Clarence Jones Construction Company gross bid for the concrete and foundation work in consideration for Vincennes Steel Corporation furnishing the payroll to the Clarence Jones Construction .Company for the concrete and foundation work on said job; this last mentioned conT tract was also signed by Mr. F. R. Sargent for the Vincennes Steel Corporation and by Mr. Clarence Jones for Clarence Jones Construction Company.”

Jennings was the superintendent for the Jones Company on this job, employed and discharged the labor; and Dudley Walker was an employee of the Jones Company and not of the Vincennes.

Jennings’s testimony was objected to on the ground, among others, that the subcontract testified to was in writing and was the best evidence of its terms.

Sargent, vice president of the Vincennes, testified

That: he had full charge of the Montopolis bridge construction from its inception in December, 1936, until completion and acceptance in February, 1938; and spent considerable time at the site directing the work, including equipment and materials to carry it on; he had power to employ and discharge all workmen and foremen on the job during the entire period of construction; he employed Jennings as superintendent for the Vincennes and gave him authority to hire and fire employees; Dudley Walker was in the employ of the Vincennes and not the Jones Company during the time he worked on the Montopolis bridge and at the time he received his fatal injuries; Sargent discharged Jennings as foreman for the Vincennes July 1,. 1937; Jennings’s wages as Vin-cennes superintendent during the period of his employment (2-1-27 to 7-1-37) were paid by the Vincennes; there was no contract between the -Vincennes and the Jones Company, except the lease contract.

Stubbs, Highway Department engineer in charge (superintendent) of bridge construction in the vicinity of Austin, testified with reference to the Montopolis bridge job, that: he dealt with Sargent and Jennings who represented themselves as acting for the Vincennes; most of his dealings were with Jennings, who hired and fired employees, directed their work, and prepared and signed the weekly pay rolls for the Vincennes. Bennett, resident engineer for the Highway Department on this job, testified to the same effect.

The objection to Jennings’s testimony that the written instrument was the best evidence of the terms of the asserted subcontract, was well taken. Jennings did not claim to be the custodian of the instrument, and no effort appears to have been made to ascertain if it was in Jones’s possession.

But even had there been an agreement collateral to the lease contract of the import of Jennings’s testimony, it could not affect the relations between the Federal on the one hand and Dudley Walker and his beneficiaries on the other. The Federal wrote the policy which, in express terms, covered the entire Montopolis bridge contract, and it collected premiums based upon the pay rolls covering the entire job, including the wages of Dudley Walker; which pay rolls were submitted to and examined by it. Whatever may have been the private arrangement between the Vincennes and the Jones Company, it is undisputed that • this policy was taken out and the premiums paid to cover and did in fact cover all employees on this job including Dudley Walker. He was one of the insured in the policy for whose benefit it was taken out and the premiums paid by the Vincennes. It is not material whether these' payments were ultimately borne by the Jones Company under a secret subcontract agreement with the Vincennes, instead of under the lease agreement. The rights of the beneficiaries are fixed by the express terms of the policy and the acts done thereunder, as they existed at the time Dudley Walker was fatally injured. Liability under the policy accrued at that time and cannot be defeated by showing a collateral secret agreement between the Vincennes and the Jones Company. The Federal is estopped to deny liability to Dudley Walker or his beneficiaries regardless of whether it knew of the asserted subcontract.

There is another ground supporting the trial court’s ruling excluding Jennings’s testimony. Under the facts of this case it was wholly immaterial whether Dudley Walker was an employee of the Jones Company. If we assume the truth of Jennings’s testimony, then the agreement between the Jones Company and the Vincennes was substantially this: The Jones Company could not bid on the items in the lease agreement as a subcontractor because of the noted Highway Department regulation. It therefore agreed that the Vincennes should make the bid on the entire contract, carry the Jones Company’s-employees on its pay rolls, take out compensation insurance covering all Jones Company’s employees, pay the premiums thereon for the Jones Company, collect the compensation for the work from the Highway Department, and account to the Jones Company for 95'% of the net profits derived from these items. Under such arrangement, as between the Jones Company and the Vincennes, the latter assumed the role of employer of all workmen on the Jones Company contract in so far as concerns the relations between the Vincennes, on the one hand, and (1) all workmen on the subcontract and (2) the Federal, on the other. By express contract between the Jones Company and the Vincennes, the former’s employees on this job became the employees of the latter. There is no principle of public policy which would invalidate such agreement, at least in so far as concerns the compensation insurance. Even if it were conceded that the relation of employer and employee existed between the Jones Company and Dudley Walker, the compensation insurance was taken out with its consent, at its expense, and for the benefit of its employees. The fact that the Vincen-nes was only the nominal employer could not affect the validity of the policy as covering this particular risk. We direct attention in this connection to the fact that companies writing this character of insurance are not at liberty to select their risks, and may not reject an application for insurance. Southern Casualty Co. v. Freeman, Tex.Civ.App., 13 S.W.2d 148, affirmed, Tex.Com.App., 24 S.W.2d 370. This particular holding was expressly approved in Texas Emp. Ins. Ass’n v. United States Torpedo Co., Tex.Com.App., 26 S.W.2d 1057. The premium rates on this character of insurance are fixed by the State Insurance Commission, and would have been the same had the Jones Company been named as employer instead of the Vincennes, and the Federal could not have refused to write the policy in the name of the Jones Company as employer. It, therefore, makes no difference whether the policy was written in the name of the Jones Company or the Vincennes. In the' absence of fraud perpetrated upon the Federal to its injury, of which there is no evidence or claim, it cannot repudiate its expressly assumed liability, after it has accrued. If there was any fraud perpetrated it was upon the Highway Department, but it is not complaining. To permit the Federal to repudiate its liability would give legal sanction to a palpable fraud upon the Walkers.

The right of Jewel Walker to intervene and recover in the suit is challenged on the ground that she was not a party to the proceeding before the Industrial Accident Board and did not appeal from its award which gave the entire compensation to her husband, Jess Walker. The facts pertinent to this issue are these: The application for compensation filed with the Board April 30, 1937, was signed by Jess Walker. Under “Names and P. O. Address of the Beneficiaries of the Deceased” it gave Jess Walker (father) and Pauline Walker (sister). Its concluding paragraph read: “This claim for compensation, with respect to such injury and because of the death of deceased,- is made in behalf of and for each and all of the legal Beneficiaries of the deceased as well as by and for the undersigned, he herein acting for himself and such legal Beneficiaries.”

Jess Walker filed an affidavit in the proceeding before the Board June 17, 1937, which showed that Dudley Walker was born December* 3, 1911; that his mother died March 14, 1918; that Jess Walker married Jewel Walker October 1, 1927; that they lived together continuously thereafter and had three children. The affidavit, besides stating the facts, expressly stated that Jewel Walker was the stepmother of Dudley Walker at the time of his death. The award was made October 22, 1937. The claim of Pauline Walker was denied on the ground that she had failed to establish her dependency on Dudley Walker. Jess Walker was awarded $20 per week for 360 weeks upon the finding that: “Deceased left surviving as his exclusive legal beneficiary Jess Walker.” No mention is made of Jewel Walker in the award. The claim filed by Jess Walker on behalf of all beneficiaries made Jewel Walker a party to the proceeding the same as if she had been expressly named in the application; and the award Constituted an adjudication, of her claim by the Board. Traders & General Ins. Co. v. Boysen, Tex.Civ.App., 123 S.W.2d 1016, error dismissed Correct Judgment. She and her husband Jess Walker were, as a matter of law, entitled to the entire compensation under the compensation statute (Art. 8306, § 8a, R.C.S.). See American General Ins. Co. v. Richardson, Tex.Civ.App., 132 S.W.2d 161. She had the power to waive her claim in favor of her husband. Texas Emp. Ins. Ass’n v. Sloan, Tex.Civ.App., 36 S.W.2d 319, error dismissed; also Boysen and Richardson cases, above. If her failure to appear in the proceeding constituted such waiver, then Jess Walker was entitled to all the compensation. Certainly, in that event, he had the right to reinvest her with her original right, and allow one-half of the compensation to be recovered in her name. The Federal had no interest in whether the recovery was had by one of the spouses for the full amount, or by both in equal shares. The amount was in no way dependent or contingent upon whether one or both spouses shared in the recovery. Moreover the husband is authorized to sue “either alone or jointly with his wife for the recovery of the separate property of the wife.” His failure or neglect to do so would authorize the wife to “sue alone by authority of the court.” R.C.S. Art. 1983. Assuming that the wife’s interest was her separate property, this article made it the duty of the husband to sue or make claim for the wife’s interest, and recovery by him in his own name would inure to her benefit to the extent of her interest. She should therefore have been made a party to the appeal by the Federal. Having failed to do so it can assert no valid objection to her intervention or to her recovery. See Jago v. Indemnity Ins. Co., 120 Tex. 204, 36 S.W.2d 980.

Upon the issue of lump sum settlement, the record showed without dispute the following:

Jess and Jewel Walker were married in 1927, and had continuously thereafter lived together, as husband and wife. There were three children by this marriage, two of whom,' aged ten and seven years respectively,' were still' living. There was a stepson of Jess Walker, aged fifteen years, also a member of the family. Jess Walker was a farmer, farming 40 acres of rented land. He owned a team and farming implements, consisting of a cultivator, planter, plows, sweep and buster. The soil where he lived was sandy,' and he depended on cotton and corn crops for his livelihood, and made no crops in 1938. Other than the above he owned no property, except ¼ interest in an estate which consisted of 210 acres of sandy land, the improvements on which were poor, worth about $20 per acre and encumbered for $800. His interest therein was worth about $850. Jewel Walker had no property of her own. Jess Walker testified that he wished the amount of the judgment in a lump sum in order that he might purchase a farm as a home for himself and family.

Considering the situation of the parties, their occupation and financial circumstances, and the purpose for which they desired to use the money, it seems clear that the interests of the two spouses were identical in so far as the method of payment was concerned and there was but one substantial issue, namely, whether the entire compensation should be paid in a lump sum or in weekly installments.

We reach this conclusion independently of whether the compensation was the community or separate property of the Walkers. This particular question does not seem to have been passed upon. Sanchez v. Texas Em. Ins. Ass’n, Tex.Civ.App., 51 S.W.2d 818, and cases cited therein are not in point. The question there was whether the compensation of a surviving wife for the death of her husband constituted community property. In Texas Employers’ Ins. Ass’n v. Boudreaux, Tex.Com.App., 231 S.W. 756, it was held that the compensation was distributable among the beneficiaries according to the inheritance laws applicable to the community and not the separate property of the deceased. This holding was based upon the analogy arising out of the source of its acquisition. In Lee v. Lee, 112 Tex. 392, 247 S.W. 828, however, Judge Taylor’s opinion in the Boudreaux case was interpreted as holding that such compensation was community property. Judge Speer reaches the opposite conclusion predicated upon the fact that “the right to it has its inception after the dissolution of the marriage by the death.” Speer’s Marital Rights in Texas, 4th Ed., p. 953, § 721. Be that as it may, the question here is whether the share of compensation of the father and stepmother is community, or the separate property of each; not whether it was the separate or community estate of the deceased and his surviving wife, had he been married. In Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, it was held that the constitutional provision (Art. 16, § 15, Vernon’s Ann.St.Const.) defining the separate property of the wife was “exclusive, precluding the power of the 'legislature to enlarge or diminish the estate. The provision reads: “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent,' shall be her separate property; and laws shall he passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband.”

The question whether the benefit to the stepmother, who, under the act stands in the place of the mother (See Richardson case, above), is her separate property depends therefore upon the proper classification of the manner of its acquisition, that is whether “by gift, devise or descent.” Clearly its acquisition is not by “devise or descent,” since it was no part of the estate of the deceased. McDonald v. Texas Emp. Ins. Ass’n, Tex.Civ.App., 267 S.W. 1074, error refused. Nor is it properly speaking a gift. If it should be held to be separate, property of the wife, it must be so by analogy. Appellant relies upon Federal Underwriters Ex. v. Bullard, Tex.Civ.App., 128 S.W.2d 126, 135, in which the court said that the husband’s “testimony tended to show a sufficient basis for a lump sum settlement of his claim for compensation. * * * But there was no testimony from any source to show the same right in” the wife. In the original opinion it is stated that the husband testified without contradiction that he and his wife were separated and not then living together. That statement was withdrawn in a rehearing opinion. However, the opinion does not show the basis upon which the husband’s claim for lump sum settlement was made; and we have no means of knowing whether there is substantial analogy between that case and this. The case does hold, however, that where separate award is made to the wife, it constitutes her separate property, on the theory that the husband has waived his community interest therein, if it be held to be community property. . .

The eighth' special issue which is complained of in the Federal’s brief as failing to place the burden of proof upon the Walkers, reads: “What sum of money do you find and designate as the average weekly wages of W. Dudley Walker, which to you may seem just and fair to all parties cross plaintiffs and cross defendants? Answer in dollars and cents.”

The Walkers contend that since this issue was predicated upon sub-section 3 of Sec. 1 of Art. 8309, it is not requisite that the amount fixed by the board, court or jury shall be upon a preponderance of evidence, since it was the manifest purpose of that section to leave the board, court or-jury free to compute the 'amount “in any manner which may seem just and fair to both parties.” This charge is in substantially the same language as that approved in Tex. Employers’ Ins. Ass’n v. Bateman, Tex.Civ.App., 252 S.W. 339. However, this specific objection does not appear to have been urged in that case. There seems to be no case expressly upon this point with reference to sub-section 3. However, Art. 8307, Sec. 5, Vernon’s Ann.Civ.St. art. 8307, § 5, expressly places the burden of proof upon the party claiming compensation; and we see no valid reason why this provision should not apply to sub-section 3 as well as to any other provision of the act. The jury were charged generally to confine their deliberations to the evidence and not to consider or discuss anything outside the evidence.

The amount of the judgment ($20 per week) is amply supported by the evidence; and it is hardly probable that any different result would have been reached had the phrase, “by a preponderance of the evidence,” been inserted in the charge.

We overrule this objection to the charge, however, upon the ground that it was not clearly and distinctly called to the trial court’s attention, but was adroitly imbedded in an involved objection in such a manner as was calculated to conceal it, with the palpable purpose of having it overlooked by the court. The court’s charge was only four pages long and was clearly and concisely drawn, submitting only nine special issues. The Federal filed 31 pages of objections to the charge; many of which were long, involved, argumentative, and redundant. To each of the nine, special issues seven objections were filed, lettered from (a) to (g) inclusive. These objections were in exactly the same language. We quote (italicizing ours) the objections to issue No. 8, the one in question:

“This cross-defendant, Federal Underwriters Exchange, objects and excepts to Special Issue No. 8 of the Court’s main charge for the reason that:
“(a) There is no evidence upon which to base the submission of said issue to the jury.
“(b) The evidence is wholly insufficient upon which to submit said issue to the jury.
“(c) There are no pleadings upon which to base the submission of said issue to the jury.
“(d) The pleadings , are wholly insufficient upon which to • submit such issue to the jury.
“(e) In said is.sue the Court erroneously places the burden of proof upon the cross-defendant, Federal Underwriters Exchange, herein.
“(f) In said issue the Court erroneously places the burden of proof upon the Federal Underwriters Exchange in that in the issue as couched and framed the jury is not told upon whom properly rests the burden of proof.
“And further, in that the issue as couched and framed the jury is told that an answer thereto which is favorable to this cross-defendant, Federal Underwriters Exchange, must be established by a preponderance of the evidence; and said issue as couched and framed is misleading and confusing to the mind of the ordinary laymen who constitute the jury, and said issue is calculated to and will in all probability confuse and mislead the jury in that the language used in said issue is not understandable to the minds of the ordinary laymen who constitute and compose the jury and if said issue is literally interpreted it wholly fails to definitely and clearly place the bm-den of proof upon the plaintiffs, as required by the terms of the Workmen’s Compensation Act.”
“(g) Said issue is upon the weight of the evidence in that, in the language used in said issue, the Court assumes that there is a preponderance of the evidence which is a fact which should not be assumed by the Court.”

The requirement in R.C.S. Art. 2185, that objectkfns to the charge be presented to the »court before the charge is- read to the jury was enacted in 1913 in response to a- widespread demand that the judge trying the case be given an opportunity to amend or correct the charge and thereby avoid the necessity of a new trial or reversal; which theretofore had often been occasioned by inadvertence. This provision has been repeatedly held to require that objections be clearly and distinctly stated, with the objective of having the attention of- the trial judge and opposing counsel drawn to the specific points in the charge sought to be corrected. The method adopted by the Federal in this case is one which has grown all too frequent in recent years, and is manifestly a studied effort to get reversible error into the record instead of to get the case submitted upon correct rules of law. To consider objections so made but gives countenance and encouragement to a practice which should be discountenanced and discouraged. This court has heretofore pointed out on several occasions that the State, as well as the litigants, is vitally interested in an economic and expeditious administration of justice. The growing prolixity of records on appeal is one of the major causes of expense and delay in the appellate courts; and reversals add materially to expense and delay in both trial and appellate courts. The latter should be obviated as far as practical by obtaining a fair trial on the merits of the case in the first instance. The purpose of appeal is to insure such fair trial; and where it has been denied over the timely protest and to the injury of the appealing party, to order a new trial. The method of objection to the issue adopted in this case, manifesting as it does, a planned effort to conceal the only objection considered of sufficient merit to be brought forward in the brief, does not evidence a bona fide purpose on the part of appellant to obtain a correction of this issue in this particular in the trial court.

There is still another ground upon which we overrule the assignments of error supporting the third and fourth “subjects” above. The brief contains 109 assignments which cover the last 47 pages of the 262-page brief. The first three propositions in the brief relate to the fourth “subject”, and, as stated in parenthesis at the end of each, are “germane to assignment of error No. 1.” The next three propositions relate to the third “subject” and are parenthetically stated to be “germane to assignments of error Nos. 2 and 109.” We are copying these three assignments in an appendix. The first two are manifestly grossly multifarious. The 109th besides being too general to be considered is wholly without merit.

The trial court’s judgment is affirmed.

Affirmed.


text:
    CITY OF STRAWN v. BOARD OF WATER ENGINEERS OF TEXAS et al.
    No. 8926.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1939.
    Rehearing Denied Dec. 13, 1939.
    Oxford & McMillan, of Stephensville, for appellant.
    Gerald C. Mann, Atty. Gen., and Robert E. Kepke, H. Grady Chandler, and James Noel, Assts. Atty. Gen., for appellee State Board of Water Engineers.
    L. R. Pearson, of Ranger, for appellee City of Ranger.
   McClendon, chief justice.

Appeal by Strawn (City of Strawn) from a judgment of dismissal after sustaining pleas to the jurisdiction, in a proceeding brought by Strawn against the Board (Board of Water Engineers of Texas), its members, and Ranger (City of Ranger) “instituted and prosecuted as an appeal from an order of the Board” granting to Ranger a permit to construct a dam and lake on Russell Creek in East-land County, “and to divert therefrom not to exceed 525 acre feet per annum.”

The pleas to the jurisdiction were predicated (among other grounds not necessary to consider) upon the proposition that appeals from orders of the Board, an administrative body, are only allowed in those instances in which they are expressly authorized by statute (Arts. 7474, 7519, 7530, 7567 and 7590); in none of which articles is the order here involved included.

These pleas were properly sustained on this proposition under the express holding in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458.

Appellant virtually, though not expressly, concedes this proposition; but contends that a justiciable controversy was asserted between it and Ranger, in that a permanent injunction was sought to prevent the erection of the dam, and the court therefore erred in sustaining Ranger’s plea to the jurisdiction.

Immediately following the initial paragraph óf Strawn’s petition formally setting forth the names and residences of the parties is a paragraph designated 2, which characterizes the nature of the proceeding. It reads: “That this suit is instituted and prosecuted as an appeal from an order of the Board of Water Engineers in Case No. 1357 which order was entered on the 29th day of November, A. D. 1938, granting the application of the City of Ranger for a permit to construct a lake and dam on Russell Creek in Eastland County, Texas, for the purpose of creating a reservoir having a storage capacity of 2000 acre feet and to divert therefrom not to exceed 525 acre feet per annum a copy of which order is hereto attached and made a part of this petition, and marked Exhibit ‘A’.”

The. petition then sets out with much particularity the circumstances under which the order was granted and the various proceedings before the Board having bearing upon the controversy. For our present purposes the following résumé of the allegations will suffice:

In May, 1937, upon application of Strawn and after full hearing, the Board granted to Strawn a permit to construct a dam across Russell Creek of stated dimensions and to appropriate from its waters not to exceed 160 acre feet per annum. In pursuance of that permit Strawn had constructed the dam-at stated great cost to it. Thereafter, in October, 1938, Ranger applied to the Board to construct a dam on Russell Creek of stated dimensions, three miles upstream from Strawn’s dam, and to appropriate from the waters of the creek not to exceed 525 acre feet per an-num. After full hearing upon this application, in which Strawn participated in protest, it was granted on November 29, 1938, “from which order the City of Strawn has appealed by filing this suit as aforesaid.”

The petition then alleges in detail facts relative to the area of the watershed of Russell Creek above the sites of the two dams; inadequacy of the flow of the stream to supply the water appropriated by Strawn under its permit, if the Ranger dam is constructed; and various other deleterious effects to its rights which would follow from the order granting the permit to Ranger.

The petition then alleges that the granting of the permit to Ranger “is unreasonable, inequitable, arbitrary, discriminatory, confiscatory and unjust for the following reason^:” the latter being a resume of the'previous factual allegations. Then follow paragraphs 11 and 12 of the petition, which read:

“11. That all of the facts alleged herein were made to appear in said hearing before the Board of Water Engineers of the State of Texas and said Board made no finding to the contrary to the facts herein alleged and if any finding was made by said Board contrary to the facts herein alleged then such finding was without any evidence to support it and against the undisputed evidence.
“12. That the City of Ranger, unless restrained, will proceed to construct the proposed lake and dam to the great and irreparable injury and damage to the City of Strawn and said City of Strawn has no adequate remedy at law and therefore sues for injunction to restrain the City of Ranger from constructing such lake and dam upon-Russell Creek above the dam of the City of Strawn.”

The prayer of the petition reads:

“Premises considered plaintiff prays that all parties being before the Court the order entered by the Board of Water Engineers-of Texas granting a permit to the City of Ranger to construct a dam on Russell. Creek as herein alleged be set aside and declared null and void; that a writ of injunction be granted, enjoining the said defendant, City of Ranger, from constructing the lake and dam on Russell Creek and that defendant, City of Ranger, be perpetually enjoined from constructing such dam on Russell Creek and that plaintiff recover its costs herein and for all other and further, general and special, legal- and equitable relief to which plaintiff may be justly entitled under the facts proved as in duty bound plaintiff will ever pray.”'

It is quite plain that the suit was nothing more than what the petition expressly designates it to be, “an appeal from an order of the Board of Water Engineers”; that Ranger, in whose interest the order was-passed, was a necessary party to such appeal; and that the injunctive relief sought against Ranger was merely ancillary to-the main purpose and objective of the suit, namely, that the order appealed from-“be set aside and declared null and void.”

The order in question was purely an administrative act. Motl v. Boyd, above.. No right of appeal from it could exist in. the absence of statutory authority; and where such authority is given the proceeding authorizing it is a special one and governed strictly by the provisions of the authorizing statute. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d. 364, and the authorities therein cited and reviewed.

We are not here concerned with, the question whether in such a proceeding a plenary action over which the court has-potential jurisdiction, but not germane to the proceeding (appeal from the order of the Board), can be joined with or without the consent of the adverse parties. There-was no attempt to join such plenary action,, but only to “institute and prosecute” the-suit “as an appeal from an order of the Board of Water Engineers.” Strawn so expressly designated and only so designated the proceeding in its petition. To hold that a plenary suit was joined or sought to be joined in such special proceeding “as an appeal from the order,” would be to read into the petition a meaning it does not convey, and one totally foreign to its express language.

Nor does the fact that the proceeding sought to be instituted was one which Strawn had no right to institute because not authorized by statute, in any respect change its character. The suit was but a futile attempt to invoke the jurisdiction of the court when none in fact existed.

The judgment sustaining the pleas to the jurisdiction in no way affects or adjudicates whatever rights Strawn may have to enjoin' Ranger from building the dam or appropriating the waters of the creek in a plenary suit brought for that purpose in .the proper forum.

The trial court’s judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    ALLISON v. HARRISON et al.
    No. 10878.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 16, 1939.
    Rehearing Denied Dec. 14, 1939.

      Frank L. Morris, Maurice M. Davis, and Phil D. Woodruff, all of Houston, for appellant.
    G. P. Hardy, Jr., of Bay City, W. C. Gray, of Palacios, Harris & Harris, of Bay City, and Fahey & Cooper, of Houston (A. Harris, Sr., of Bay City, and Pat N. Fahey, of Houston, of counsel), for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an action originally brought by appellant, A. B. Allison and wife, Minnie A. Allison, against G. A. Harrison and P. F. Campbell to establish a constructive trust on 290 acres of land out of the West one-half of Section 10 of the Texas Rice Development Company’s Subdivision of the T. J. Dasher and Lewis Goodwin surveys in Matagorda County, Texas, and for an accounting by appellees of monies received by them from the sále of royalties on said land, and in the alternative for damages. Prior to the trial P. F. Campbell died and his wife, Helen A. Campbell, Executrix of his estate, was made a party to the suit. Minnie A. Allison was dismissed from the action before the trial as being neither a necessary nor a proper party.

Appellant alleged that P. F. Campbell had been his agent and representative in connection with the land involved in the suit for many years; that P. F. Campbell and G. A. Harrison had entered into a conspiracy to obtain his, land and the minerals thereunder for less than their true and market value and that in furtherance thereof the said Campbell and Harrison had prevailed upon appellant to give P. F. Campbell ,the exclusive sale of said 290 ¿■¡eres of land from December 18, 1936, to July 1, 1937, for the purpose of selling it to the State of Texas as an air-port. Appellant alleged that upon learning of drilling activities in the vicinity of his land he had written P. F. Campbell requesting that the land be withdrawn from sale, and was informed by Campbell that he had sold said land to G. A. Harrison, and that he was thereby induced to believe' that the sale of the land to the State had been consummated by Harrison. In his prayer appellant asked that a constructive trust be established against all of said 290 acres of land and the minerals thereunder remaining in the hands of either Harrison or the executrix of P. F. Campbell’s estate; that the legal title thereto be divested out of them and vested in him, and that defendants be required to make an accounting to him for all monies received by them for the sale of royalties. In his alternative plea appellant sought both actual and exemplary damages.

Defendants answered by both general and special demurrers and denials. They specially denied any conspiracy between P. F. Campbell and G. A. Harrison to defraud appellant, or that they had made false representations to him; they specifically alleged that plaintiff knew all of the material facts in connection with such sale and that he had sought advice of counsel before executing the deed to said land and receiving the purchase price therefor. By way of trial amendment they denied that any partnership existed between them.

At the conclusion of appellant’s testimony, on motion by defendants, the court instructed the jury to return a verdict against plaintiff and in favor of defendants. Based on such instructed verdict, judgment was rendered in favor of defendants and that plaintiff take nothing by his suit.

The record shows that appellant, a resident of the State of Illinois, had owned the 290 acres of land in question for a number of years, and that during a large part of that time P. F. Campbell had represented him as his agent in connection with said land; that, at the suggestion of P. F. Campbell, that if said property could be purchased for $30 per acre it might be sold to the Government for a municipal air-port, appellant had given P. F. Campbell the exclusive right to sell said property from December 18, 1936, until July 1, 1937, for the price of $8,700 cash, with the provision that one-half of the minerals would be reserved to him. The instrument provided: '“If this land is sold to the. State of Texas, as is contemplated, party of the second part (P. F. Campbell) shall have it understood that it is for the use as a landing field or air-port, and is subject to an oil lease now on the land and developments for landing field will -have to be made subject to the wishes of the company holding the lease.” The record shows that on or about January 23, 1937, it was ascertained by G. A. Harrison that said land could not be sold to the state as an air-port as long as there was an outstanding oil lease on the property. By letter dated February 8, 1937, from P. F. Campbell to appellant, Campbell referring to the efforts being made to sell said land to the State for an air-port said: “We have to give them time and the first chance to take it, but if the well shows us some oil, and if it is not taken by the state shortly we will then try to move it for you to some capitalist or oil man.”

By letter to P. F. Campbell dated February 21, 1937, appellant requested that the deal with the State be called off, intimating that, in his opinion, it would be more advantageous to sell the land to private parties. By letters dated February 24, and 25, 1937, P. F. Campbell informed appellant that he had contracted to sell said land to G. A. Harrison, allowing him to take up said option. In the letter of February 25, he stated that it was understood that the land was to be sold to the State for an air-port, if possible, but if not to any one who would buy it if not acted on by the State before some one else did.

In a letter dated February 26, 1937, Ben F. Anderson, appellant’s attorney, who resided in Charleston, Illinois, informed P. F. Campbell that A. B. Allison had been in his office discussing negotiations for the sale of said land and had shown him the correspondence between Campbell and Allison, and that Allison had asked him to write Campbell for more full explanation of the matter. The letter stated that it seemed from the correspondence' and the option agreement that the land was to be purchased by the State, and that Allison was reserving one-half of the mineral rights if the sale went through; that they knew that there had been considerable excitement in the purchase of oil royalties in the vicinity of the land. He stated that Campbell probably knew, or any competent attorney would tell him, that an option agreement of this kind could not be enforced where the situation had changed so much since the time it was given. He requested a full explanation of the matter and as to who was profiting by the deal, stating that he would then advise Mr. Allison and that they would negotiate further with him.

By letter dated March 3, 1937, P. F. Campbell forwarded to appellant a letter from G. A. Harrison to him (Campbell) dated March 2, 1937, in which Harrison stated that he had offered said property to the state officials as an air-port and that, even though the legislators had not made the money available to him, he was forced to close the option and carry it himself until such time as they saw fit to reimburse him.

Prior to the delivery of said deed, P. F. Campbell received the following letter from Ben F. Anderson: “Your recent letter received. Mr. Allison thought this matter over and he has decided to sell the land regardless of the option, for the price agreed upon of $8700.00. I have prepared deed and sent it with draft attached as per my wire which you have received. As you have the abstracts of title I take it that there is no reason for delaying paying the draft. I am enclosing a copy of the deed so you will have it. Mr. Allison wants this matter promptly paid as he does not want to speculate on it and does not want the purchaser to do so. If the deal is to go through he wants it done at once, if not he wants to know it so he can act accordingly.” , This letter was dated March 4, 1937.

By deed dated March 6, 1937, A. B. Allison and wife, Minnie A. Allison conveyed to P. F. Campbell the 290 acres of land in question with one-half of the minerals thereunder for a recited consideration of $10 and other valuable considerations. The deed recited that it was subject to a gas, oil and mineral lease. Appellant received therefor the full consideration of $8,700 provided for in said option contract. At the time of the execution of said deed appellant knew that P. F. Campbell had contracted to sell said land to G. A. Harrison under the terms of the option contract of December 18, 1936, and Campbell had informed appellant by letter that it was understood that the land was to be sold to the State for an air-port, but if not, to any one who would buy it if not acted on by the State before some one else did.

' By deed dated March 10, 1937, P. F. Campbell conveyed the same property to G. A. Harrison. The instrument recited the same consideration and contained the same recitations with reference to the mineral lease as the ■ deed from Allison and wife to Campbell.

On the trial of the case appellant, on cross-examination, testified that his attorney, Ben F. Anderson, had advised him not to sign said deed, but that he signed it anyway because he thought it would be better to let him have half of the royalty, divide it between them, rather than while they were squabbling over it maybe they would get a dry hole and he would get nothing out of the royalty at all. He stated: “That is the reason I signed it, he was going to hold me off, and maybe I would have lost the whole thing.”

The sole question involved in this appeal is whether there is any evidence in the record which, when considered by itself, would, if accepted by the jury as true, raise an issue of fact under which judgment might have been rendered against defendants and in favor of appellant.

Appellant contends that the testimony raises the issues that both P. F. Campbell and G. A. Harrison became fiduciaries of appellant; that, prior to the execution of the option contract from appellant to P. F. Campbell, -both Campbell and G. A. Harrison had learned of impending oil developments in the vicinity of appellant’s land; that they had represented to him that they were making an effort to sell said land to the State of Texas to be used as an air-port when they knew, prior to the execution of said option contract and the deed from appellant to P. F. Campbell, that it. could not be sold to the State and that they had concealed said facts from appellant, and, acting as partners, had conspired to acquire said land for themselves at a price greatly below its market value, and that the title to the land was taken in the name of G. A. Harrison for the joint benefit of both. Appellant contends that a favorable finding on any of said issues would have entitled him to the relief sought.

It is the established rule in this State that, as against an instructed verdict, all testimony favorable to the party against whom such judgment is .rendered must be taken as true and that the losing party must be given the benefit of all facts, circumstantial or otherwise, bearing on his cause of action as well as all reasonable inferences arising from the evidence. Bragg v. Houston Electric Co., Tex.Civ.App., 264 S.W. 245; Needham v. National Insurance Co., Tex.Civ.App., 97 S.W.2d 1016; Thomas v. Postal Co., Tex.Com.App., 65 S.W.2d 282.

Appellees contend that appellant failed to prove any material false representation or concealment by appellees and that he had affirmatively proved by his own testimony that other considerations caused him to consummate the sale and that therefore there was no issue of fact to be submitted to the jury. They contend further that appellant, having executed the deed of March 6, 1937, and received the consideration therefor with full knowledge, while the transaction remained wholly execu-tory, that G. A. Harrison was the real purchaser, that he was not entitled to cancellation of said deed on the grounds that either P. F. Campbell or G. A. Harrison had abused their relation of trust, and that he had thereby condoned and waived the fraud, if any, and had waived his right of action for cancellation and for damages.

The rule is well established that no action for fraud arises in favor of one who is unable to show falsity and that the truth or falsity of a fact is to be judged as of the time when the representations were made and that their character cannot be affected by subsequent events (20 Tex. Jur., 37, Sec. 19), and further, that to constitute actionable fraud the misrepresentations or concealment complained of must be in respect to a material fact. 20 Tex. Jur. 35, sec. 18. And that “In order for one to be entitled to maintain a legal or equitable action based on fraudulent misrepresentations or promises he must have relied thereon; in other words, the misrepresentations must not only have been made but must have contributed to the injury alleged to have been suffered; they must have induced the making of the contract or the entering into the transaction. There can be no liability when the statements made did not affect the actions of the persons claiming to be defrauded.” 20 Tex.Jur. 51, sec. 29.

Appellant bases his allegations of fraud largely on the recitations in said option contract and on the fact that G. A. Harrison, in his letter to P. F. Campbell dated March 2, 1937, which was forwarded to appellant, had stated that he was purchasing said land for the purpose of holding it for the State of Texas for air-port purposes, when, appellant contends, the record shows that Harrison had ascertained on or about January 23, 1937, that the land could not be sold to the State as an airport.

The record shows that appellant had, by-letter to P. F. Campbell, dated February 21, 1937, requested that the deal with the State be called off; that by letter dated February 25, 1937, P. F. Campbell had informed him that he had contracted to sell the land to G. A. Harrison with the understanding that it was to be sold to the State for an air-port, if possible, otherwise to any one who would buy it; that Ben F. Anderson, appellant’s attorney, had notified P. F. Campbell prior to the execution of said deed that appellant had decided to sell the land regardless of the option and that appellant, on cross-examination, testified that he had signed said deed because he thought it would be better to let him have half Of the royalty rather than take a chance of losing all of it in the event they got a dry hole.

Under the above facts it is apparent that if appellant did not wish to sell to the State, the fact that he thought that he was selling to some one to hold for the State could have had no effect on his actions and such representations and concealments, if any, could not have induced him fo make said deed to P. F. Campbell.

Appellant contends that, since a fiduciary relationship existed between himself and G. A. Harrison, the purchase of said land by Harrison without having made a complete disclosure of all material facts to the principal, a presumption of unfairness arises and the duty devolves on the fiduciary to show that his dealings with his principal were open, fair and honest.

While it is unquestionably true that an agent without the knowledge and consent of his principal cannot purchase the property of his principal for himself and that upon discovery that the agent has purchased the property for himself the principal may recover the property from the agent, it is equally true that where the principal knows that the agent is purchasing for himself and is familiar with all. facts connected with said purchase and carries out an executory contract after he has full knowledge that the agent is the beneficiary therein, he will be held to have ratified said contract and he cannot thereafter recover the property from the agent. Texas Brokerage Co. v. John Barkley & Co., 60 Tex.Civ.App. 466, 128 S.W. 431; Samuel v. Branche et al., Tex.Civ.App., 211 S.W. 841.

This rule is followed in 12 R.C.L., page 413, section 159, which reads: “It is generally held that one who 'is- induced by fraud to enter into a contract, and who, on discovery of the fraud while the contract remains wholly executory, nevertheless executes it on his part, or requires performance on the part of the other party, thereby waives the fraud and cannot subsequently maintain an action for damages therefor. Reasons given for this rule are that in such cases the fraud is really consummated and the damages incurred by such performance, and that to permit a recovery thereafter would virtually be to allow a recovery for self-inflicted injuries, and to permit the complaining party to speculate upon the other’s fraud. It is deemed to be the duty of the defrauded party on discovering the fraud to elect whether he will perform or rescind. If he elects to perform, he thereby, in effect, makes a new contract, and to permit him under those circumstances to recover for a fraud would be to do violence to every rule upon which compensatory damages are allowed. The rule is not changed by the fact that the person guilty of the fraud insists on performance, and that the defrauded party intends to perform and then sue to recover the loss growing out of performance. Nor can the defrauded party save his right to sue by notice that he will do so if he perform, and exact performance with full knowledge of the facts which rendered performance non-obligatory.”

The above rule is followed in the following cases: Allen v. Lasseter, Tex.Civ.App., 35 S.W.2d 753, 755; Wortman v. Young, Tex.Com.App., 235 S.W. 559; and Kingman & Co. v. Stoddard et al., 7 Cir., 85 F. 740.

In the instant case the record shows that prior to the execution of the deed of March 6, 1937, appellant had ample opportunity to become familiar with the value of his land and of the minerals thereunder, in that he had, a short time prior to the execution of said deed, sold royalties thereunder for $60 per acre in one instance, and $100.00 per acre in another; that he knew of the formation of the drilling block in the vicinity of the land, and that drilling was in progress; that prior to said sale Ben F. Anderson, his attorney, had, at appellant’s instance, made an investigation of conditions surrounding said land and had advised him as to his legal rights under said contract, and in a letter to P. F. Campbell had stated that appellant had thought the matter over and had decided to' sell the land, regardless of the option, for the price agreed upon. Appellant had full knowledge that G. A. Harrison, his alleged agent, was the purchaser of the land and had been informed by P. F. Campbell that Harrison would let the Government have the land if it would take it, and if not he, Harrison, would own it.

Under the above facts we think that appellant waived his right for cancellation of said deed and for damages, and that no issues of fact were raised by the testimony, or the circumstances connected therewith, which should have been submitted to the jury, and that no error was committed by the trial court in instructing the jury to render a verdict in favor of defendants and in rendering judgment thereon.

For the above reasons, the judgment of the trial court is in all things affirmed.

Affirmed.