author: SMITH, Chief Justice.

text:
    SPENCER et ux. v. MAVERICK.
    No. 10674.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.

      Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellants.
    Dodson, Ezell & Duke and J. D. Dodson, all of San Antonio, for appellee.
   SMITH, Chief Justice.

Laura Wise Maverick sued A. B. Spencer, Jr. (and wife), to recover $2,00(K earnest money paid under a contract to purchase Lots 6 and 7, Block 121, in the City of Alamo Heights, in Bexar County.

The cause was tried to the court upon a stipulation of the evidence and judgment was rendered in favor of Mrs. Maverick as prayed for. The Spencers have appealed. The trial judge filed no findings of fact or conclusions of law, as none were requested.

In the contract of sale appellant was obligated to furnish “a complete abstract * * * Title to be good and marketable or to be made so within a reasonable time, at the expense of the seller”; purchaser was given a stipulated time to investigate title after receipt of abstract, and if defects or objections were found to set forth the same in a written opinion; deal to be closed when such defects and objections were removed; if seller failed to remove defects, or “if title be found objectionable and cannot be cleared within reasonable time,” purchaser was given option to require specific performance or return of earnest money.

It appears to be coriceded that under the contract of sale appellants were obligated to furnish a complete abstract, showing, by its own contents, a good and merchantable title in appellants to the property to be conveyed. Appellants furnished a purportedly complete abstract, which they did not thereafter supplement or offer to supplement, thereby assuming the position that the abstract furnished showed, by its own contents, the character of title contracted for.

In due course, and after some correspondence, appellee declined to proceed with the purchase and demanded the return of the earnest money advanced by her, which was refused by appellant. This suit followed, with the result stated.

In their brief appellants select the following definition of “marketable title”: ■“The term ‘marketable title,’ when applied to real property, means one reasonably free from such doubt as would affect the market value of the estate; one which a prudent man with knowledge of all the facts and their legal bearing would be willing to accept (5 Words and Phrases, First Series, page 4388 et seq.) ; not doubts based on captious, frivolous, or astute niceties, made up for the occasion, but grave and reasonable doubts, such as would induce a prudent man to hesitate in accepting a title affected by them, and such as would make it possible or reasonably probable that the purchaser’s right may become a matter of investigation, and thus affect its value. A marketable title is • one that will bring as high a price in the market with the purchaser’s objection to its sufficiency as without [citing authorities].” Texas Auto Co. v. Arbetter, Tex.Civ.App., 1 S.W.2d 334, 336.

Appellee presents this definition of the ■term: “A good and merchantable title is ■said, in 5 Thompson on Real Property, § 4296, to be: ‘A title that is fairly deducible of record and not depending on .matters resting in parol. The term “marketable title” when applied to real estate, -means a title free from reasonable doubt. An equitable title is not a marketable title. A title open to reasonable doubt is not a .marketable title. The court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication, and could raise the same question in a new proceeding. * * * It would especially be unjust to compel a purchaser to take a title the validity of which depends upon a question of fact where the facts presented upon the application might be changed on a new inquiry or are open to opposing influences. A reasonable doubt concerning the title exists when there is uncertainty as to some fact appearing in the course of its deduction, and the doubt makes it such as affects the value of the property or will interfere with its sale. It 'is one in which the possession can be acquired and retained without litigation or judicial decision. It means a title that is reasonably free from such doubts as will affect the market value of the estate; one which a reasonably prudent person with knowledge of all the facts and their legal bearing, would be willing to accept. The title should not only be good, but indubitable. * * '* A title may be perfect and yet not marketable. * * * A title may be good in fact but to be marketable it'must [be] of good record.’ * * * ‘Where the contract stipulates the character of title to be conveyed, effect will be given to such stipulation.’ We think the Texas cases are in line with the rules announced in the text just quoted. * * * ‘Inasmuch as the law implies a contract that the purchaser shall receive a good title to the land, free from all defects, charges and incumbrances, it would seem unnecessary that the purchaser should insert in the contract any provision assuring him such title.’ ” Shamrock Oil & Gas Co. v. Williams, Tex.Civ.App., 63 S.W.2d 570, 574.

At the outset we must determine the question of whether the burden rested upon appellee to show, or upon appellant to negative, that the defects of title appellee pointed out were such as were reasonably calculated to render the title unmerchantable within the purview of the contract. Upon that question we hold, generally, that where, as in this case, the seller is required to furnish abstract showing merchantable title, and purchaser is required within a stipulated time to point out the defects of title shown in the abstract' so furnished, and does so, the burden rests upon the seller to cure the claimed defects or else show they are not such as would impair the merchantability of the title (Lieber v. Nicholson, Tex.Com.App., 206 S.W. 512; Davenport v. Sparkman, Tex.Com.App., 208 S.W. 658); whereas, on the other hand, if the purchaser raises objections upon defects not disclosed in the abstract, the burden rests upon him to show that those defects are such as impair the merchantability of the title. Hollifield v. Landrum, 31 Tex.Civ.App. 187, 71 S.W. 979. We come, then, to the specific objections to title pointed out by appellee through the opinion of her attorneys.

And, first, we consider the fifth objection, as follows: ;“5!. Paving improvements have been made around the property, to secure the payment for which the law gave a lien. The abstract does not show whether or not such a lien exists, and satisfactory proof should be furnished that no paving lien exists against the property.”

The existence of the improvements mentioned in the objection was not disclosed in the abstract of title furnished appellee by appellant, and under the rule stated the burden rested upon appellee to show that the defect was such as to impair the merchantability of appellants’ title. For, while it is true a prospective purchaser would be required to take notice of the existence of those improvements and of the proceedings of the municipality with respect thereto (Heisig v. Vaughn, Tex.Civ.App., 15 S.W.2d 113; Uvalde Co. v. Tribble, Tex.Civ.App., 292 S.W. 932), the extraneous fact of the existence of those improvements cannot be said to have been disclosed by the abstract, and the burden of going forward with proof of injury was cast upon appellee. Hollifield v. Landrum, 31 Tex.Civ.App. 187, 71 S.W. 979. That burden was not discharged by appellee. While the stipulation of the evidence shows the existence of said improvements at the time the contract involved was made, there is nothing therein, save the statements contained in the reply letter of appellants’ attorneys to said objection 5, tending to show whether any lien was or was not created by reason of said improvements. And, if those statements could be looked to, they show that no lien was ever created.

Appellee’s objection 6 to the title tendered by appellants relates to restrictions against the business use of the property involved.

One of appellants’ contentions under that objection is that the undisputed evidence shows that the abstract does not disclose a “general scheme” of selling and conveying lots out of the Alamo Heights subdivision against business use, and tháf, therefore, the burden to prove this objection impaired the market value of Lots 6 and 7, or interfered with their saleability, rested upon appellee, and that burden was not met.

The abstract showed': (a) deed in 1910 from Alamo Heights Company to V. A. Scovill to Lot 6, wherein it was provided \hat title should pass, and the deed was made, upon certain conditions, among others, that vendee, his heirs or assigns, would not use the same or permit use thereof “for business pursuits, other than hotels, boarding or lodging houses,” nor for the treatment of contagious or infectious diseases for profit, nor for the sale, etc., of malt or other intoxicating liquors; (b) successive deeds to Lot 6 bearing the same restrictions; (c) deed from Alamo Heights Company to Clifton George Company in 1914, and correction deed in 1915, to approximately 700 lots in Alamo Heights subdivision, including said Lot 7,-but not said Lot 6, and in which all restrictions contained in deeds to Lot 6 were retained except only the restriction against hotels, etc.; (d) deed from Clifton George Company in 1922 to P. M. Gordon, containing the same restrictions as in deed to the approximately 700 lats_ above mentioned, and adding a restrict tion that the cost of any building “to be used as a dwelling or for mercantile purposes,” should not be less than $4,500; (e) deed to appellants to both Lots 6 and 7 in which no restrictions whatever were mentioned; (f) instrument in writing in 1926, executed by Clifton George Company, which recited the conveyance, above mentioned, of the 700 lots with restrictions, followed by language expressly “releasing in favor of any bona fide mortgagee or lienholder, both now and hereafter, all of the above-mentioned restrictions, conditions and limitations, in so far as same may affect the rights of such mortgagee or lienholder,’’ because such restrictions “made it difficult for owners of property] so restricted to obtain loans thereon.”

Although no specific reference in deeds to Lot 6 was made to any “general scheme” of restrictions, yet we hold that the contents of the abstract in this case clearly imported such a general scheme, for, it has been held that where, as in this case, the evidence shows all conveyances of lots in a subdivision, including that to be conveyed, contain a restriction against erection of houses for a contract price less than a stated sum, this was sufficient to charge a prospective purchaser with notice of the restriction as a general scheme. Dellaughter v. Hargrove, Tex.Civ.App., 40 S.W.2d 253.

Moreover, the rule is that a purchaser is not only charged with notice of the contents of deeds in his chain of title but, if the same contain anything that would put a prudent man upon inquiry, he is chargeable with notice of whatever an inquiry would reveal. Wilkerson v. Ward, Tex.Civ.App., 137 S.W. 158, writ refused.

And, “a purchaser of land is chargeable with notice of all conditions, restrictions, exceptions, or reservations appearing in his chain of title, or concerning which he is put on inquiry * * *. Where a purchaser has notice of the existence of restrictions because they appear in the direct chain of title, he is chargeable with knowledge of the purpose for which the restrictions were made.” 66 C.J. p. 112-8, § 962.

That a “general scheme” against general business use existed in Alamo Heights subdivision, was established in Clifton George Company v. Great Southern Life Insurance Company, Tex.Civ.App., 234 S.W. 705. The pertinent proceedings in that case appear in the stipulation of the evidence here.

We cannot agree with appellants that the undisputed evidence showed the abstract did not disclose a “general scheme,” since there appeared in the ab-1 stract sufficient in our opinion to put a purchaser, and therefore a prospective purchaser, upon notice of the probable existence of such general scheme, at least as to Lot 6.

Appellants stress their construction of objection 6. They analyze the objection and point to quoted parts thereof as showing that in the opinion of appellee’s attorney there is no reasonable doubt that the restrictions upon business use would not subject a purchaser to claims or litigation. They further contend that certain language in objection 6 does not point out, a!s objected to, the restrictions against specific business uses. But, construing all the language of objection 6 together in the light of the stipulated fact that the contract “was entered into with the understanding that said property was business property and was to be used as business property,” and because the contract required objections to be stated, we think a reasonable construction of objection 6 is that it advanced objections to the title because of both said general and specific business restrictions, and appellants’ con-Ttentions are therefore overruled.

S Appellants further' contend under objection 6 that the undisputed evidence shows prior grantors and all lot owners in Alamo Heights subdivision have, by estoppel and laches, lost their rights, if any, to enforce or to complain of the violation of the general restriction against business use contained in the deeds to Lot 6; that such rights have so been lost as to any business use to which said lot or both lots may hereafter be put. Appellants rest such contention upon these facts: that appellants and appellee know of no complaint whatever having been made of violation of said restriction; that there are no suits pending making such complaint; that appellants have, since their purchase, made particular business uses of said lots without complaint; that the abstract does not disclose any such complaint; that Lot 7 has been used for a drug store business since 1922, the gasoline filling station on Lot 6 since 1932, the lumber yard on Lot 6 since 1934, and the grocery on both lots since 1929, without complaint; that the plat of Alamo Heights subdivision shows various parts of said subdivision are devoted to business uses, and that the $50,000 contracted consideration for Lots 6 and 7 indicates changed conditions.

The stipulation of the evidence shows that the original proprietor of Alamo Heights subdivision conveyed to Clifton George Company 700 lots. The plat in evidence shows that Alamo Heights subdivision is an extremely large subdivision, comprising approximately 140 blocks. The plat shows only eleven fairly scattered locations out of the entire subdivision purporting to be used for business purposes, and out of these eleven locations, two are shown as devoted to school purposes. The area of even one of the schools is very greatly in excess of the combined area of the other business locations. There is nothing in the stipulation of the evidence to show that any of the lots have been devoted to business uses other than for schools, grocery, butcher, cake shop, drugs, gasoline filling station and lumber yard.

The rule is well stated in Ward v. Prospect Manor Corp., 188 Wis. 534, 206 N.W. 856, loc. cit. 859, 46 A.L.R. 364, loc. cit. 368, 369:

“Modern authority has made a distinction between the rights of a proprietor in such respect and the rights of an individual lot owner, such distinction arising from the fact that the proprietor is or may be directly interested in violations of such covenants upon any part of the entire tract, and acquiescence on his part may appropriately deny to him the equitable right to enforce the covenants, but a violation of a restrictive covenant at a point on a tract distant from the lot of an individual lot owner may be of no interest whatever to such an owner, and cannot appropriately call for affirmative action on his part. Bowen v. Smith, 76 N.J.Eq. 456, 74 A. 675; Brigham v. H. G. Mulock Co., 74 N.J.Eq. 287, 70 A. 185.
“It is now- generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him. Thus in Brigham v. H. G. Mulock Co., 74 N.J.Eq. 287, 289, 70 A. 185, 186, it is said: ‘That any claim of bar asserted against the rights, of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured by the relation of the asserted violation to the individual lot.’
“In De Lima v. Mitchell, 49 Misc. 171, 175, 98 N.Y.S. 811, 813, the court says: ‘In order to have the benefit of restrictive covenants, it is not necessary that the plaintiff should take notice of every violation thereof. He may take no notice of violations not especially offensive to him without losing his right to enforce the restrictions in the case of especially offensive violations/
“In Schadt v. Brill, 173 Mich. 647, 139 N.W. 878, 45 L.R.A.(N.S.) 726, the court, after a very complete review of the authorities, said: ‘We find the law well settled to the effect that a person owning property in restricted territory does not waive or lose his right to enforce the restrictions where their violation becomes especially and personally offensive and injurious to him and his property by reason of his previous omission to take notice of violations, and insist on observance of the covenants, in cases not affecting him or his interests, or the locality in which his property is situated.’
“The following are a few of the numerous authorities supporting this doctrine: Morrow v. Hasselman, 69 N.J.Eq. 612, 61 A. 369; Payson v. Burnham, 141 Mass. 547, 6 N.E. 708; Bacon v. Sandberg, 179 Mass. 396, 60 N.E. 936; Meaney v. Stork, 80 N.J.Eq. 60, 83 A. 492; Yeomans v. Herrick, 178 Mo.App. 274, 165 S.W. 1112; Seawright v. Blount, 139 Ga. 323, 77 S.E. 152; Brown v. Huber, 80 Ohio St. 183, 88 N.E. 322, 28 L.R.A.(N.S.) “705.”

In Dethloff v. Voit, 172 App.Div. 201, 158 N.Y.S. 522, 523, the Supreme Court (Appellate Division) of New York had before it facts which were quite strong to support “changed conditions.” In that case the restrictive covenants were contained in a deed executed and recorded in the year 1846. The suit was by buyer to recover $750 because of the unmarketability of the title to land which defendant qon-tracted to convey plaintiff. Defendant, in an attempted performance of that contract, had tendered to plaintiff a full-covenant warranty deed to the land. Plaintiff rejected the deed. The title was held, to be unmarketable. It was said by the court in that case: “It is highly probable that 'the restrictive covenants are no longer enforceable, and that there is but little dali-ger of liability for damages for a violation thereof in the use of the premises in question; but those questions cannot be decided on this submission, for the parties who-may attempt to enforce the restrictive cov-, enants or to recover damages for their violation are not before the court and would not be bound by the decision.”

See also 66 Corpus Juris, pp. 869, 878,. 879, §§ 537, 546. Appellants’ contention that all lot owners in the subdivision are,, by estoppel and laches, now barred of any right to enforce or to complain of the violation of the general restriction against business use to which said Lot 6 might in the future be put, is, to say the least, of doubtful merit, and in any event the security of appellants’ title rests in the unadjudi-cated right to plead and enforce waiver and estoppel against others, not parties to-this suit, who have had in the past, if not now, a cause of action against the owners of these properties for violation of the restrictive covenants mentioned. These rights are subject to possible if not probable litigation in the future, the threat of which hangs over the owners and their assigns. Appellee was not bound under her contract to accept a title burdened with the doubts growing out of those restrictions. It is not sufficient to say that under all the facts and circumstances appellants would be bound to win a suit brought against them to enforce those restrictions or for damages for their breach, for “ ⅛ title dependent upon the question whether certain acts, conduct or admissions amount to an estoppel in pais is unmarketable,’ and, ‘if the purchaser would be exposed to a lawsuit with the least chance of losing it, he ought not to be held to the bargain.’ Maupin p. 711.” Texas Auto Co. v. Arbetter, Tex.Civ.App., 1 S.W.2d 334, 339. Accordingly, appellants’ contention is overruled.

Appellants further contend under objection 6 that the principle of law, as stare decisis, laid down in Clifton George Co. v. Ins. Co., Tex.Civ.App., 234 S.W. 705, is applicable to this case and has the effect of abrogating all business restrictions in Alamo Heights subdivision. There were two trials and appeals of that case. The first appeal (234 S.W. 705). was from an order, in effect, temporarily restraining Clifton George Company from enforcing the same general restriction as that involved here, in respect to lots used for the conduct of a private school for profit. The second appeal was from the judgment perpetuating said injunction, and the opinion is reported in, Tex.Civ.App., 247 S.W. 912. We do not find it necessary to decide whether the principle of law announced and applied on the first appeal had the effect claimed for it by appellants, because, under substantially identical facts on the second» appeal, an entirely different principle of la\y was announced and applied by -this Court. The essence of the principle of law applied on the second appeal (247 S.W. 912) was this: that a restriction against business use, if property be used for the conduct of a school, is a restriction violative of public policy and therefore void and unenforceable.

The trial court in this case had the discretion, not shown here to have been abused, to regard the principle of law de-dared on the second appeal in that case as the applicable principle of law, and, since such principle did not strike down the general restriction further than as applied to sdiool use, that this case was not ruled by stare decisis. We adopt that conclusion and overrule appellants’ contention.

It is the further contention of appellants under objection 6, that, since the stipulation of the evidence shows the City of Alamo Heights in 1928 formally adopted a zoning ordinance, and that an ordinance of said city expressly designates Lots 6 and 7 as business property and expressly authorizes their use as business property, and further shows all of the business buildings erected on said lots, except the drug store, have been erected since the zoning ordinance went into effect, and that building permits had been obtained for the construction of the same in accordance with the terms and provisions of said ordinance, —all lot owners in the subdivision are bound so that no reasonable expectation of ever being required to litigate the question of business use exists. We overrule this contention. Assuming that all the facts stated are shown in the stipulation of the evidence, it does not follow that the zoning ordinance and the other ordinance mentioned would have the effect of abrogating pre-existing contractual restrictions against business uses. The general restriction against business use in the deeds to Lot 6 and the two specific restrictions against business use in deeds to Lots 6 and 7, before mentioned, antedate the said ordinances, and we hold, upon authority, that the power of the city to zone cannot override restrictive covenants in existence at the time the zoning ordinance is passed. It is well said in Burgess v. Magarian, 214 Iowa 694, 243 N.W. 356, page 358, as follows:

“Zoning ordinances, while of ancient origin, have only become matters of utility in this country in the later years, and, while the Legislatures of some forty-three states have conferred upon municipalities the power to pass zoning ordinances, the decisions of the various courts are not very numerous on the question, but the cases we .have been able to find all point in one direction, and that is, where private restrictive covenants have been placed upon lots or land by agreement of parties, they are controlling, and city zoning ordinances cannot override or destroy such private restrictive covenants.
“In Metzenbaum on the Law of Zoning, p. 282, it is said:
“ ‘ * * * For example — if restrictions have been written into deeds, forbidding the use of the property for stores or commercial purposes, and if a zoning ordinance provides that the same property may be used for store or commercial purposes, then the deed or private restrictions continue to control and are not displaced by the less restrictive provision of the zoning ordinance.’
“This is the rule laid down in Crawford v. Senosky, 128 Or. 229, 274 P. 306; Kroner v. City of Portland, 116 Or. 141, 240 P. 536. See, also, City of Atlantic City v. Atlantic City Steel Pier Co., 62 N.J.Eq. 139, 49 A. 822; Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A.L.R. 837; Kramer v. Nelson, 189 Wis. 560, 208 N.W. 252; Dolan v. Brown, 338 Ill. 412, 170 N.E. 425. These decisions all support the conclusion that the power of the city to zone cannot override private contracts between parties where the restrictive covenants are in existence at the time the zoning is done.”

We come now to objection 8, which relates to the failure of the record, as disclosed in the abstract, to show documentary stamps on certain deeds appearing in the abstract. It was contended that this omission impaired the marketability of the title. On the authority of Cole v. Ralph, 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567, we hold the objection is without merit.

The ninth and last objection relates to the easement executed by appellants to the San Antonio Public Service Company in 1932, wherein they did “grant and convey” to said company, its successors and assigns, the right to connect with the “gas supply pipes” located on Lot 6 and to set gas meters thereon and to maintain the same for the “purpose of supplying gas to the premises,” and the further right “to at all times” enter upon the lot for the purpose of “reading said meters and repairing the same and such gas supply pipes.” It was expressly stipulated in the conveyance that the rights conveyed were binding upon grantors’ heirs, executors and assigns, and intended as a “covenant running with and a charge upon” said Lot 6. Although no-facts or, circumstances surrounding the execution of said easement are shown by the stipulation of the evidence, appellants nevertheless contend that said easement “could only enhance the marketability of the title.”

We cannot hold as a matter of law that that easement constituted a benefit to Lot 6. Appellants contend the burden of that easement is “so slight as not to interfere with the use of the property.” No .evidence is adduced, no case is cited to support that assumption. Appellants further contend that “necessarily the utility company must have such right (i. e., to enter the property, read meters and repair gas-supply pipes) even if no written permission, had been given.” No case in support is-cited, whereas, the very contention raises-the question: Why, then, was the easement taken?

The trial court, having only 'the easement instrument itself before it, might reasonably have concluded that the covenant running with the land granting the right to “at all times” enter upon Lot 6 to repair said “gas supply pipes” for the purpose of supplying gas to Lot 6, might be construed by grantee, its successors and assigns, to give the exclusive right to perpetually furnish gas to' said lot, and that it was a construction they might be willing to maintain by litigation. It is not necessary for this Court, nor was it necessary for the trial court, to determine whether such construction be ‘ reasonable or unreasonable, since only the easement instrument itself was in evidence, and the burden to prove said easement was a benefit, or to prove said easement did not impair the market value of Lot 6, rested upon appellants, and that burden was not met. The following cases deal with easements regarded as encumbrances justifying rejection of tendered titles: Krotzer v. Clark, 178 Cal. 736, 174 P. 657; Broadway-Long Beach Realty Corporation v. Feiber, 141 Misc. 764, 252 N.Y.S. 612; Sorosis Bldg. Corporation v. Prolay Realty Corporation, 230 App.Div. 683, 245 N.Y.S. 507.

Appéllants’ contentions under objection 9 are accordingly overruled and no reversible error being presented the judgment is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    DUNBAR ROYALTY CO. v. SHIPP.
    No. 5672.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1941.
    Pat'J. Howe and Henry Yeager, both of Dallas, for appellant.
    Wellborn & Wellborn and Frank C. Bolton, all of Henderson, for appellee.
   HALL, Justice.

This suit was instituted in the District Court of Rusk County by appellee against Dunbar Royalty Company, G. M. Rowe, and several other persons not parties to this appeal, in which appellee alleged that theretofore he purchased from appellant, Dunbar Royalty Company, an undivided ⅜ mineral interest in and under approximately 142 acres of land located in Rusk County. It was alleged further that the ⅜ interest purchased from Dunbar Royalty Company amounted to 17.32 royalty acres, but in fact Dunbar Royalty Company owned only 5.93 royalty acres in said land; that the title had failed to the difference ‘between the royalty sold and that actually owned by Dunbar Royalty Company for which damages were sought in the amount of $11,390, and in the alternative for $4,200, representing the purchase price of the alleged shortage in acreage together with legal interest from date of purchase. The Dunbar Royalty Company is the only appellant here and it will be so designated hereafter.

Appellant answered to the merits denying failure of the title to any part of the royalty sold by it to appellee, and alleged further that if it be determined that it and its grantors conveyed more royalty than they owned and by reason thereof the title to a part faiied, then it averred that the superior title was, “on all the dates of all the deeds which were executed and delivered” in appellee, or his predecessors in title, and that appellee’s remedy, if any existed, was for the return of the purchase price “by virtue of mistake of fact.” Appellant alleges, further, that since appellee has received in cash more than he paid for the royalty interest, he has not been damaged to any extent.

Upon motion by appellee the court below peremptorily instructed the jury to return a verdict in his favor for the sum of $3,426.63. •

Appellant’s propositions 1 and 2 are:

“No. 1: Plaintiff Shipp having predicated his title failure case on the theory that the children and grandchildren of Sam Williams conveyed to Rowe more than they had, was incumbent upon Shipp to prove that old man Sam Williams, Maria Pierce Williams, his first wife, Robert Williams, a son, Cordia Williams, a daughter, all of whom are dead, each and all died without a will, and that all titles acquired 'were acquired by descent and distribution from these decedents, and having failed to introduce any evidence on this vital link in the chain of title, Shipp failed to prove what title Rowe’s grantors had or didn’t have which could have failed and the instructed verdict for Shipp and against Dunbar Royalty Company was material reversible error.”
“No. 2: Plaintiff Shipp having failed to prove an ouster, or a judicial determination of title failure, or an outstanding superior title, or how, when, where or why the title failed, or how much of the title failed, it was material reversible error for the trial court to instruct the jury in favor of Shipp and against the Dunbar Royalty Company.”

These propositions are so related that they will be treated together. No evidence was offered by appellant. Its contention is that appellee wholly failed to establish his cause of action for the reasons urged in the propositions set out above.. The mineral interest here in controversy was part of the estate of Sam Williams, Sr., and his first wife, Mariah, both deceased, and consisted of two tracts of land aggregating 141.85 acres. On August 22, 1935, appellant by mineral deed regular on its face purported to convey to appellee an undivided ⅛ mineral interest in and under the 141.85-acre tract. Appellant purchased the mineral interest it conveyed to appellee from one G. M. Rowe, and Rowe had theretofore purchased it from some of the heirs of Sam Williams, Sr., and his first wife, Mariah. The testimony of Ida Williams, surviving wife of Robert Williams, deceased, son of Sam Williams, Sr., and his first wife, Mariah, designates the children of Sam Williams, Sr., by both his first wife, Mariah, and his third wife, Josie, and their consequent heirship. She also testified that there were no children by Sam Williams, Sr., and his second wife, Rose. In a final judgment of the District Court of Rusk County in suit No.' 9055, dated November 27, 1933, between the heirs and surviving wife of Sam Williams, Sr., the Humble Oil & Refining Company, claiming the leasehold, and the several claimants to the royalty, it was decreed, among other things, that the heirs of Sam Williams, Sr., and his wife, Mariah, took their estate by inheritance; that the 141.85-acre tract was the community property of Sam Williams, Sr., and his first- wife, Mariah, and that upon the death of Mari-ah, her undivided ½ interest in all said land passed by descent to her only surviving heirs, two of whom were Robert Williams, deceased, and Fannie Oten; and that Josie, the surviving wife of Sam Williams, Sr., took a life estate in an undivided ⅝ of said tract of land. From this undisputed evidence the share each heir is entitled to receive of said estate is easily deducible. On December 31, 1930, Olivia, Ora Mariah, Fannie Mae, and Akron, all the children of Robert Williams, deceased, joined by, Ida, surviving wife of Robert, conveyed to G. M. Rowe ¼6 of ⅛. of the minerals in and under the 141.85-acre tract referred to above, and on the same day Fannie Oten, daughter of Sam and Mariah, joined by her husband, Willie Oten, and Josie Williams, surviving wife of Sam Williams, Sr., conveyed to G. M. Rowe Vie of ⅛ of the mineral interest in and under the 141.85 acres of land. The total amount conveyed by these two mineral deeds amounted to ⅛4 of the whole, or 2.20 mineral acres. In the judgment in cause No. 9055, dated November 27, 1933, and referred to above, Ora Mariah, daughter of Robert Williams, was decreed to be non compos mentis, and all conveyances of mineral interest by her were cancelled and held for naught, thus reducing the amount of minerals conveyed by the heirs of Robert Williams ¼, and reducing the total mineral acres conveyed by both deeds to 1.92. On August 16, 1935, the grantors in these mineral deeds (except Ora Mariah, non compos mentis, and Josie, surviving wife of Sam Williams, Sr.) joined by Ida, surviving wife of Robert Williams, executed correction deeds to G. M. Rowe by which it was sought to change the fractional mineral interest of ⅝ of ⅛ conveyed in .the original deeds to Vie each, making ⅜ of the whole mineral estate in and under the 141.85-acre tract. It is observed, however, that after December 31, 1930, the date of the original mineral deeds to Rowe, and before August 16, 1935, the date of the corrected deeds, the grantors therein had conveyed to other persons more than 100% of the mineral estate owned by them originally. Thus it will be seen that the deeds of correction conveyed nothing and the interest of G. M. Rowe, grantee in the said original mineral deeds, was not increased to any extent thereby. So as we view the record before us, Rowe could convey no greater interest than Í.92 acres of minerals to appellant, and appellant could convey no more to appellee than the interest conveyed to it by Rowe which constituted its entire holding under the 141.85-acre tract. This, from the undisputed evidence, constitutes a shortage in acreage even greater than that alleged by appellee in his pleadings, and as claimed by him in his brief and as found by the jury. However, appellee is making no complaint respecting this fact and certainly appellant is in no position to do so. These propositions are overruled.

Appellant’s third proposition is: “The purchase by Shipp being a royalty purchase as distinguished from a land purchase, and the plaintiff Shipp having failed to introduce any evidence on the issue of oil production, or likelihood of production or existing wells and how m.any, if there be any; or how much royalty money he had received from oil purchases as distinguished from what he had paid for thei royalty, he failed to prove any damage, or prove £ny facts that might be squared with the recognized legal measures of damage and therefore it was material reversible error for the trial court to instruct in favor of Shipp and against Dunber Royalty Company.”

We think it pertinent here to observe that the same rules of law which govern the sale of land apply equally to the sale of oil, gas and other minerals in place. Texas Co. v. Daugherty, 107 Tex. 226, 176 S.W. 717, L.R.A.1917F, 989; Stephens County v. Mid-Kansas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 123 A.L.R. 843. This case, as we view it, is one simply for damages for partial failure of title to an undivided mineral estate sold appellee by appellant, and is governed by the same rules applicable to partial failure of title to land. The mineral interest here involved was an undivided interest in and under the entire 141.85-acre tract, and appellee’s alleged shortage was in and under the entire tract and applied to every acre contained in said tract of land. Hence the measure of damages applicable here “is that the vendee [appellee] can recover only such part of the original purchase price as bears the same ratio to the whole consideration that the value of the land [minerals] to which the title has failed bears to the value of the whole premises, such relative values to be ascertained as of the time of the conveyance instead of the time of the trial, together with interest * * *. Thus the damages recoverable for a breach resulting in a partial loss of estate cannot exceed the amount of the consideration” paid for such shortage. 21 C.J.S., Covenants, p. 1012, § 142, par. (2). In George v. Hesse, 100 Tex. 44, 93 S.W. 107, 108, 8 L.R.A.,N.S., 804, 123 Am.St.Rep. 772, 15 Ann. Cas. 456, Chief Justice Gaines tersely states: “If the plaintiff recovers a sufficient sum in money to make that which he has received equal to that which he has conveyed, and that which he has assumed to pay, he is compensated for his loss, and, as we think, that is the measure of his damages.” See also 7 R.C.L. p. 1170, § 87. The trial court aptly applied the above rule and rendered judgment for appellee for that amount of money which represented the purchase price paid by him for the alleged shortage of mineral acres. This proposition is overruled.

Appellant filed a plea in abatement and also claimed an estoppel against ap-pellee, based upon a judgment in the suit styled Shipp v. Humble Oil & Refining Co., in which Shipp and others sued the Humble and others, including appellant, for the title to an undivided interest in the minerals in and under' the 141.85-acre tract. That cause was tried to judgment in the .District Court of Rusk County, and on appeal was affirmed. Kennedy v. Shipp, Tex.Civ.App., 135 S.W.2d 204, writ dismissed. There is no showing in this record that the mineral interest involved in that case was the same as that under consideration here. Without such showing these pleas are without merit. The action of the trial court in overruling them is sustained.

We have carefully examined all other assignments brought forward and conclude that they do not present error, and they are therefore overruled.

The judgment of the court below is affirmed.


author: WILLIAMS, Justice.

text:
    UNITED STATES v. ADMIRAL REFINING CO. et al.
    No. 5685.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 5, 1940.
    Steve M. King and John D. Rienstra, both of Beaumont, for appellant.
    James S. Grisham, of Tyler, for appellees.
   WILLIAMS, Justice.

In this appeal appellant, United States of America, intervenor below, attacks the fees and salaries allowed in receivership proceedings.

W. P. Weber sued Admiral Refining Company, a corporation, upon a series of notes and sought foreclosure of its alleged chattel mortgage lien on the company’s property, all situated on its refinery site in Gregg County. In connection with its prayer for appointment of a receiver pending litigation, he alleged, among other reasons, that defendant had permitted taxes to accrue to the State and the Federal Government in large amounts and had so conducted its business that it was unable to obtain tenders upon legally produced oil.

Mayfield and Grisham of Tyler as attorneys for plaintiff filed above suit on September 2, 1935. Attorney Carl W. Wade of Dallas filed on the same day a formal answer for the company. The following day William Z. Hayes, engaged in banking business, a resident of Dallas County, with agreement of above-named attorneys, was appointed receiver in the Smith County District Court to take charge of this estate in Gregg County. On September 3, 1935, the receiver qualified and filed a personal $2,000 bond. On the same date the receiver’s application to lease the plant to one Van Nest at $1,000 monthly rental was approved by the court. Appellant and other creditors subsequently intervened to have their respective claims and liens allowed, one of whom attacked the claim of Weber as being fictitious. No assignment attacks any of the foregoing proceedings. Appellant’s tax claim of $7,527.29 was allowed and classified as a lien (Weber waiving his lien) and by the court ordered next paid after the payment of costs, operating and administration expenses of receivership. On September 6, 1935, upon application of the receiver the court appointed L. T. Norman of Smith County as superintendent of the properties with the duty of making an inventory and to assist in collecting and procuring data incident to obtaining tenders of oil. This order fixed his salary'at $100 per month plus all his actual expenses. This order was filed December 3, 1937. Under another order dated December 4, 1935, filed the same day, Norman was appointed general supervisor as an employee of the receiver. No salary was fixed in this order. Prior to November' 25, 1935, the receiver employed above-named attorneys to represent him in his administration of the estate.

Norman, Hayes, Mayfield and Grisham, assisted by employed clerical help, examined and reviewed the files, records and books of defendant company and prepared statements therefrom which were used in their adjustment of appellant’s claim for taxes, in securing tenders from the State Tender Board on certain oils, and in the suit by the State to confiscate alleged illegally produced oil. Mayfield and Grisham filed an answer in the State’s suit at Austin, and the receiver made a trip there. The State prevailed in its suit. After two, or possibly more, hearings before the State Tender Board at Kilgore, tenders were obtained to move certain oils which were sold for $13,106.25. The receiver and above law firm appeared in the hearings held at Kilgore. A fire damaged the property, for which $1,145 fire insurance was collected. Van Nest surrendered his lease at the expiration of two months, for which the 'receiver collected $2,000 in rentals. The account for traveling expenses during the first twelve months, as filed by the receiver, reflects five round trips from Dallas to Tyler and Kilgore, and one to Austin. Orders were entered which approved and authorized the payment of $3,930.29 of secured claims. With exceptions had with the Internal Revenue Department in adjusting the taxes claimed, above data represents all services performed and all receipts had during the first twelve months. Thereafter, with exception of some minor routine actions had, the administration of the receivership remained inactive until January, 1939, at which time application was made for an order to sell the machinery and equipment. This was sold on February 25, 1939, at private sale for $8,892.84, whereupon the receiver filed his final account, together with prayer for allowance of fees and salaries which was contested by appellant.

The trial court allowed $10,400 to the receiver, $4,160 to Mayfield and Grisham, $1,-040 to Wade, $4,028.90 to the superintendent, and $500 to the Master in Chancery. This total allowance of $20,128.90 together with $994.90 for expenses and $3,930.29 theretofore paid to other secured creditors-consumed the entire $25,054.29 received in the sale of the assets. Various assignments attack each of these allowances as being grossly excessive, unreasonable and not warranted by the services rendered.

■ “We are mindful of the rule that allowances of this sort are usually within the sound discretion of the trial court and are presumptively correct, it ordinarily having a better means of knowing what is just and reasonable than the Appellate Court can-have; but these matters are discretionary only in the sense that there are no fixed rules to determine a proper allowance.”' Roberts v. Howe, Tex.Civ.App., 125 S.W.2d. 617, 619, and authorities there cited; 53 C.J. p. 378, Sec. 614; Holland v. Silver Basin Min. Co., 113 Wash. 63, 193 P. 500. “All of the material facts and circumstances, of the particular case are to be considered.”' 53 C.J. p. 386, Sec. 628.

In Hickey v. Parrott Silver & Copper Co., 32 Mont. 143, 79 P. 698, 701, 108 Am.St.Rep. 510, applicable here, it is stated “The considerations that should be controlling with the court in fixing compensation are the value of the property in controversy;, the practical benefits derived from the receiver’s efforts and attention; time, labor and skill needed or expended in the proper performance of the duties imposed, and their value measured by the common business standards; and the degree of activity, integrity, and dispatch with which the work of the receivership is conducted.” S3 C.J. p. 386, Sec. 629. The measures to be weighed in fixing attorney’s fees in receivership proceedings are, to a large extent, the same which are considered in fixing the receiver’s fees. In fixing the allowances to either, the governing principle is that the compensation so allowed should be measured by the reasonable value of their sefviccs rendered. Pink v. State, Tex.Civ.App., 105 S.W.2d 265, 271; 53 C.J. p. 378, Sec. 614, p. 380, Sec. 617; 7 C.J.S., Attorney and Client, § 191, pages 1080, 1081.

When the above considerations are weighed and applied to the facts here, the allowances so made to the receiver and attorneys are unwarranted by the services rendered. The total amount allowed to each was calculated on a monthly basis extending over a period of approximately forty-two months at a monthly rate of $250 to the receiver, $100 to Mayfield and Grisham, and $25 in Wade. This plant was not operated and no attempt to operate it was made other than under the two-months lease to Van Nest. The receivership continued in an inactive status after the first twelve months. Litigation growing out of same had practically been concluded during the first twelve months. This would not justify the calculation of fees to be allowed receiver and attorneys at the same monthly rate throughout the forty-two months period of time.

When the ratio of $20,128.90 to the amount of the receipts or value of the estate is considered, the unreasonableness of such allowances to the receiver and attorneys becomes further patent. The allowances so made are in excess of the benefits which the estate derived from the efforts of the receiver and attorneys. Levassor v. Metropolitan Fire Ins. Co., 188 Ky. 23, 220 S.W. 752, 755; Roberts v. Howe, supra; Brand v. Denson, Tex.Civ.App., 81 S.W.2d 111; Pink v. State, supra.

This record does not disclose under which court order Norman, the superintendent, rendered services. The character or extent of his services and the time actually spent by him are not definitely shown. The testimony given on the hearing dealt in general terms with the character of services performed and time spent collectively by the superintendent, the receiver, and May-field and Grisham. The evidence is silent as to the services rendered by Wade other than consultation with the receiver, and the extent of this is not shown. The extent of services rendered by the Master in Chancery and time spent by him is not clear. The attorneys employed by the receiver had theretofore been employed by plaintiff and defendant, respectively, in the suit and their respective fees from this source was not shown. Ascertainment of such is also a consideration to be weighed in fixing their fees in this estate.

The foregoing condition of the record does not enable this court to finally pass upon and determine the compensation to be allowed each.

The cause is reversed and remanded, with direction that upon another and more complete hearing on the services performed the compensation awarded each be fixed in accordance with the principles and observations hereinabove made.


author: NORVELL, Justice.

text:
    CITY STATE BANK & TRUST CO. OF McALLEN v. UNITED PAPERBOARD CO., Inc.
    No. 10817.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1940.
    Rehearing Denied Jan. 22, 1941.

      Chas. E. Thompson, of McAllen, for appellant.
    W. C. Tisdale, of McAllen, and Oxford & Oxford, of Edinburg, for appellee.
   NORVELL, Justice.

This is an appeal from a judgment of the District Court of Hidalgo County, Texas, awarding appellee, United Paperboard Company, Inc., a recovery against Riona Products Company and City State Bank and Trust Company of McAllen. The bank alone has appealed. Appellee’s cause of action in so far as the bank is concerned is grounded upon the following letter:

“McAllen, Texas
“July 9, 1938
“United Paperboard Company
“171 Madison Avenue
“New York, New York
“Gentlemen:
“Referring to your letter of July 7th, 1938, addressed to Riona Products Company, McAllen, in which you request a bank guarantee for $650.00 representing one-half the purchase price on 100,000 cartons to be shipped to said company.
“This is to advise that we will guarantee the payment of $650.00 upon arrival and receipt of said cartons.
“Yours truly,
“W. W. Dees, Vice President.”

It appears that the bank was financing the Riona Products Company under an arrangement whereby containers, such as cans and cartons, used by Riona in connection with the sale of its products, were placed in a bonded warehouse in McAllen. The bank then advanced money against warehouse receipts and would release to Riona the containers when needed, upon payment of certain specified sums. Riona had on hand a considerable amount of bottled grapefruit juice and entered into negotiations with appellant to manufacture 100,-000 cartons costing approximately $1,300. These cartons were to be specially made so as to hold several bottles of juice and display advertisements of Riona products thereon. Appellant refused to ship these cartons upon open account, and on July 7, 1938, wrote the products company the following letter:

“July 7th, 1938
“Riona Products Company
“McAllen, Texas
“Gentlemen:
“We have your letter of July 5th which is in reference to order for 100,000 cartons which will amount to approximately $1300.-00, in which letter we note you ask if it will be satisfactory with us if your bank forwarded immediately their bank guarantee covering one half the amount of the order.
“With reference to this we wired you this morning as follows:
“ ‘Yours July fifth assume that bank guarantee is commercial letter of credit have bank forward same at once and will immediately proceed with order’
“If arrangements suitable to us is made by your bank, we will immediately proceed with the order and upon its completion will make shipment of entire order on terms of Sight Draft attached to Bill of Lading.
“We are anxious to proceed with this order and hope that we will hear from your bank by return mail.
“Yours very truly,
“Chas. E. Daniel, Treasurer”

Lee Akin, president of Riona Products Company, took this letter to W. W. Dees, vice president of the bank, whereupon Dees wrote the letter above set out.

It appears hjghly probable that there was a misunderstanding between the parties. Riona’s order for cartons was a special one,’ and when manufactured said con-tamers would be practically worthless to any processor other than Riona. The company undoubtedly desired- a guaranty of payment of one-half the purchase price of the cartons before they started maufactur-ing them. On the other hand, it is highly probable that Dees wrote the letter in accordance with the bank’s usual practice of handling the Riona account. However that may be, the bank’s liability, if any, is founded solely upon a contract in writing evidenced by appellant’s letter to Riona Products Company and the bank’s reply thereto.

From the letter it appears that the appellant’s proposition to Riona was to ship said cartons on terms of sight draft attached to bill of lading. The bank’s letter cannot be construed as being consistent with these terms of delivery to Riona, for the bank’s liability to pay is based upon a condition, namely, the “arrival and receipt’ of said cartons. (Italics ours.)

In Black’s Law Dictionary, 3d Edition, receipt is defined as “the act or transaction of accepting or taking anything delivered.”

It will be seen that if the cartons were forwarded with sight draft and bill of lading attached they could not be “received” by Riona until the sight draft was paid. From this, the conclusion is inescapable that the letter of the bank was in the nature of a counter proposition.

In order to hold the bank liable under the counter proposition, it was necessary that appellee comply strictly with the terms and conditions thereof. The bank did not guarantee that Riona would “receive” the carT tons.

The record shows that the cartons were shipped under terms of sight draft with bill of lading attached; that Riona never paid the sight draft and, accordingly, never received the merchandise. It follows that the contingency upon which the bank’s liability was predicated never occurred.

We have no doubt that the appellee in this case actually manufactured and shipped the cartons involved, relying upon the bank’s letter, yet there is no estoppel pleaded or proved which would prevent the bank from standing on the letter as written.

It is also well settled that liability upon a guaranty “can be fixed and preserved only by a strict compliance with the terms of the guaranty.” Jarecki Mfg. Co. v. Hinds, Tex.Civ.App., 295 S.W. 274, 275; Hill Mercantile Co. v. Rotan Grocery Co., Tex.Civ.App., 127 S.W. 1080; American Surety Co. of New York v. Koen, 49 Tex.Civ.App. 98, 107 S.W. 938.

The application of this rule to the facts of this case necessitates, a reversal of the trial court’s judgment-. The judgment of the trial court is reversed and judgment here rendered that appellee take nothing.

On Motion for Rehearing.

Upon the trial of this case, appellee introduced in evidence, a stipulation agreed to by all the parties involved, which in part reads as follows: “The merchandise arrived at Brownsville, Texas, on August 22nd, 1938, and possession thereof could have been obtained by Riona Products'Company at any time thereafter upon payment of the draft and transportation charges^ but Riona Products Company never received any part of it from the common carrier, for the reason that neither the transportation charges no.r the amount of the draft was ever paid.”-

Appellee contends that we were in error in using the following language in our original opinion: “It will be seen that if the cartons were forwarded with sight draft and bill of lading attached they could not be ‘received’ by Riona until the sight draft was paid.”

And, for the first time, it is asserted that the delivery of the cartons to a common carrier was a delivery to Riona, and consequently a “receipt” by the common carrier amounted to a “receipt” by Riona, within the meaning of the letter of guaranty. Cases applicable to the law of sales are cited in support of this contention, such as Alexander v. Heidenheimer, Tex.Com. App., 221 S.W. 942, and Walker-Smith Co. v. Jackson Tex.Civ.App., 123 S.W.2d 993.

We are here confronted with the question of the proper construction of a letter of guaranty and our opinion in no way conflicts with the holdings in the cases relied upon by appellee. It may be conceded that the construction urged by appellee on rehearing is a possible interpretation, although the juxtaposition of the words “arrival” and “receipt” militates against this position. However, in the case of North Texas National Bank v. Thompson, Tex.Civ.App., 23 S.W.2d 494, 498, affirmed, Tex.Com.App., 37 S.W.2d 735, Mr. Justice Looney, while adopting a rather restricted view of the rule .of strictissimi juris as applied to guaranty contracts, held that “where doubt and uncertainty exists as to the meaning of a contract [of guaranty], rendering it susceptible to two interpretations, one favorable to the * * * guarantor, the other unfavorable, the former interpretation will be adopted.” See, also, 21 Tex.Jur. 169, sec. 39.

The application of the above rule to the facts of this case precludes a recovery for appellee upon its theory advanced upon rehearing. The motion is accordingly overruled.


author: PRICE, Chief Justice.

text:
    DUNNING v. POPULAR DRY GOODS CO.
    No. 3974.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.
    John T. Hill, of El Paso, for appellant.
    Kemp, Nagle & Smith, J. M. Goggin, and Wyndham K. White, all of El Paso, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the El Paso County Court at Law. Plaintiff, Mildred May Dunning, sought recovery of damages against defendant, Popular Dry Goods Company, a corporation, for personal injuries. Trial was to a jury, submission on special issues, and on the verdict the court rendered judgment in favor of defendant. Plaintiff duly perfected this appeal from the judgment rendered.

The parties for convenience will be designated as they were in the trial court.

Plaintiff’s cause of action, as stated in the petition, was, in substance, that on or about the 17th day of April, 1939, she entered defendant’s department store from the Texas Street entrance, intending to proceed to the main floor of the store; in order for her to so proceed it was -necessary that she pass over an incline leading from the main store to the part of the store called the Annex; that as she attempted to pass over this incline both feet slipped from under her and she fell violently, and thereby sustained personal injuries. Various charges of negligence are made as to the maintaining of the store with the slope, and as to the floor being slick and thus rendered dangerous.

Defendant answered by ■ general denial and a somewhat detailed plea of contributory negligence.

The court submitted the case of plaintiff in five special issues; the answer to each, other than the first, was conditioned on the affirmative answer to the issue immediately preceding. The jury found the first issue in the negative, and hence did not answer the other four. These issues were as follows:

“Question No. 1: Do you find from a preponderance of the evidence, that the plaintiff, Mildred May Dunning, slipped and fell as she was passing over an incline in what is known as the annex in the Popular Dry Goods Company? Answer ‘yes’ or ‘no.’
“If you have answered the preceding question ‘yes,’ then, but not otherwise, answer the following question:
“Question No. 2: Do you find from a preponderance of the evidence that the incline upon which the plaintiff, Mildred May Dunning, slipped and fell, if you have found that she so did, was a dangerous condition? Answer ‘yes’ or ‘no.’
“If you have answered the preceding question ‘yes,’ then, but not otherwise, answer the following question:
“Question No. 3: Do you find from a preponderance of the evidence that the plaintiff, Mildred May Dunning, did not know of the danger of the incline, if you have found that it was a danger and did not realize the risk to her own safety in going upon and over the said incline ? Answer ‘yes’ or ‘no.’
“Question No. 5: ' Do you find from a preponderance of the evidence that the plaintiff, Mildred May Dunning’s, slipping and falling upon the incline, if you have found that she did so slip and fall, was the proximate cquse 'of the injuries received by her, if any. Answer ‘yes’ or ‘no.’ ”

Plaintiff did not request submission of other issues, and did not object to the man-rer of the submission by the court.

Under the submission, for plaintiff to recover, it was necessary to secure an affirmative answer to special issue No. 1. In the absence of such finding, the finding of the jury on any of the other issues submitted was immaterial.

The negative answer to issue No. 1 is assailed as being without support in the evidence. That plaintiff fell at some place in the store on the occasion in question is supported by her testimony, and in a measure corroborated by the testimony of two of the defendant’s employees. The place of the fall and the time thereof were specified in the issue as “when she was passing over the incline.” Her right of recovery was conditioned on the establishment of this place and time. In some-of the issues submitted on behalf of the defendant it was assumed as a fact that plaintiff fell in the store on the occasion in question here. Plaintiff testified that she fell when she was passing over the incline. Mrs. Mary Browning, an employee of the defendant, testified that she saw plaintiff on the floor and it was some distance from the incline. In our opinion there was an issue raised by the evidence as to where plaintiff fell with reference to the incline. The finding that she did not fall as she was passing over the incline, or rather the failure to find that she did fall at such time, finds support in the testimony of Mrs. Browning.

There are various assignments attacking the manner of submission of contributory negligence and the sufficiency of the evidence to support such findings. Negligence not having been found as to defendant, we deem the manner of the submission of contributory negligence and the findings of the jury thereon immaterial, and for that reason overrule such assignments.

By bill of exception it appears one of the attorneys for defendant, in the course of his argument, stated: “If you find a verdiqt for the plaintiff, all the stores in El Paso with inclines in them might as well close up.” It further appears from the^record that no objection was made to the argument at the time same was made, and the record shows no request that the jury be instructed to disregard same. Error is assigned on account of the trial court’s failure to grant a new trial on this ground.

We do not agree with the counter proposition of the defendant that this was proper argument. Humble Oil & Refining Co. v. Butler, Tex.Civ.App., 46 S.W.2d 1043; Stewart v. Coats, Tex.Civ.App., 91 S.W.2d 421.

The two above cases are typical of a number of cases found in the reports condemning argument of this character. However, we do not think the improper argument in the instant case is as aggravated as that in the two cases above cited. In our opinion, an instruction or admonition by the court would have cured the matter. Plaintiff had an opportunity to reply thereto. It may be, in reliance on that right, he sat silent when the argument was made. In our opinion reversible error is not shown by the assignment. Plaintiff should have objected thereto or requested a charge that the jury disregard same. Texas Employers’ Ins. Ass’n v. Moore, Tex.Civ.App.. 46 S.W.2d 404; Harris v. Sadler, Tex.Civ.App., 55 S.W.2d 173; City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649; Emberlin v. Wichita Falls R. & Ft. W. R. Co., Tex.Com.App., 284 S.W. 539.

Complaint is made that the answers to the defensive issues are unsupported by the evidence. From this it is sought to be inferred that the verdict was dictated by passion and prejudice. These, defensive issues are, as we have pointed out, immaterial in view of the jury’s findings on the issues submitted for plaintiff. The inference sought to be made from the premises, even if permissible, is not conclusive. Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.

As to the argument complained of in assignment No. 2, there is no bill of exception showing that such argument was made.

_ Assignment of error No. 5 is as follows: “It is shown by the special charges of the court, the answers to the questions propounded, and the evidence introduced, that fundamental error has been committed in the trial of the cause highly prejudicial to plaintiff’s right to recover her damages.”

This assignment is too general to merit • consideration.

The record as a whole discloses no reversible error.

The case is affirmed.

SUTTON, J., appointed Jan. 1, 1941, did not sit in the motion for rehearing.


author: CRITZ, Justice.

text:
    LEWIS et al. v. EAST TEXAS FINANCE CO. et al.
    No. 7565.
    Supreme Court of Texas.
    Jan. 22, 1941.
    J. F. Colson, of Oklahoma City, Okl., Long & Strong, of Carthage, Nat Gentry, Jr., of Tyler, Davis, Avery & Wallace, of Center, and Dan Moody and Greenwood, Moody & Robertson, all of Austin, for plaintiffs in error.
    Butler & Price and Pollard & Lawrence, all of Tyler, for defendants in error Baylor University and others.
    William S. Reeves, Weeks, Hankerson & Potter, and Chas. F. Potter, all of Tyler, for defendant in error Toronto Pipe Line Co.
   CRITZ, Justice.

As tried in the District Court of Smith County, Texas, this is an action in trespass to try title and for damages. The suit was filed by Stanley Lewis and several others against the East Texas Finance Company and several others. It primarily involves the 7/8 mineral estate in and under a strip of land about 700 feet long and 30 feet wide. This strip of land was formerly a part of what was once known as the Troup and Henderson Road in Smith County. Trial in the district court resulted in a judgment for the defendants. This judgment was affirmed by the Court of Civil Appeals. 123 S.W.2d 803. We refer to the opinion of that court for a full statement of the facts and issues of this case. We will, however, make such statement in this opinion as will render it complete within itself. A proper decision of this case depends upon whether or not a certain oil and gas lease, dated February 25, 1931, from T. D. Wright to P. M. Deason, Trustee, is so uncertain or ambiguous as to require parol evidence to enable a court to give it a definite legal interpretation. We quote the following part of such lease as germane to this opinion:

“Agreement, Made and entered into the 25th day of February, 1931, by and between T. W. Wright, a single man, of Tyler, Smith County, Texas, hereinafter called lessor (whether one or more) and P. M. Deason, Trustee, hereinafter called lessee:
“Witnesseth: That the said lessor,' for and in consideration of Ten Dollars cash in hand paid, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of lessee to be paid, kept and performed, has granted, demised, leased and let, and by these presents does
“Grant, lease and let unto the said lessee for the sole and only purpose of exploring, drilling, mining, and operating for oil and gas and of laying pipe lines and of building tanks, power stations and structures thereon to produce, save and take care of said products, all that certain tract of land situated in the County of Smith, State of Texas, described as follows, to-wit:
“A part of the Juan Vargas League, Abstract No. 22, about 20 miles southeastwards, from the City of Tyler, being 7.86 acres, designated as tract No. 9 on the plat of the subdivision of the 86-acre tract conveyed to T. O. Wright on the 14th day of October, A. D. 1926, by C. A. Hughes et al., said deeds and recorded in Smith County Deed Records, Vol. 183, p. '579, the Plat of said subdivision recorded, Vol. ■ — •, page -; beginning at a stake, the N E corner of tract No. 8, and the Northwest corner of this tract; thence S 1 deg W 640 feet to a stake; thence W 3 deg 45' N 561 ft to a stake, the S W corner of Tract No. 8; thence N 1 deg E 615 ft to the place of beginning, containing 7.86 acres, not including the road. (This league laid out to the magnetic North.)
“For the purpose of determining the amount of any money payment hereunder, said land shall be considered to comprise 7.86 acres,- even though it actually comprises more or less, but it is lessor’s intention to lease, and he does lease hereby, in addition to the land above described, all of the land and interests in land owned by lessor in said sections, grants, leagues and/or surveys as shown’ by the records of said County and all other land and interests in land owned by lessor in said sections, grants, leagues and/or surveys and/or adjoining sections, grants, leagues and/or surveys and lessor expressly agrees to deliver to lessee any supplemental instrument deemed necessary or requested by lessee for more complete or accurate description of the land and interests thus intended to be leased.”

The above lease contract contains many other provisions not necessary to mention here." It will be noted, however, that it contains a covenant of general warranty of “title to the land herein described.” As shown by the record, and by the opinion of the Court of Civil Appeals, a correct decision of this case must depend on the effect of the words “not including the road” contained in the above lease contract immediately following the words, “containing 7.86 acres of land.”

If we understand their briefs and arguments, counsel for defendants contend that the words, “not including the road,” when construed in the light of the entire instrument, have effect to exclude or except the land then occupied by the road from the conveyance both as to the fee and the easement. We further understand that counsel for defendants contend that if the above is not correct, that the words, “not including the road,” as and where used in the above instrument, create an ambiguity or uncertainty as to what is meant and therefore parol evidence was admissible to show the intention of the contracting parties. The trial court held the instrument ambiguous on its face, and permitted defendants to introduce parol evidence tending to show that the parties to the contract intended to except or exclude the land in the road from the lease contract, both as to the easement and the fee. The Court of Civil Appeals sustained the ruling of the trial court.

Counsel for plaintiffs, who hold under the lease contract, contended in the trial court and in the Court of Civil Appeals, and here contend, that, as used in the above lease, the words, “not including the road,” have a definite meaning in law, and therefore cannot render the lease ambiguous. It is then contended by counsel for the plaintiffs that the words under discussion only have legal effect to say that the land in the road is not counted in stating the number of acres leased and to say further that the lease, as to the land in the road, is subject to the easement, held by the State or the county on such land for road or highway purposes. The application for writ of error properly raises the contentions of plaintiffs^hy proper assignments.

A reading of this lease contract will disclose that it attempts to describe the land leased in two ways, by metes and bounds, and by reference to a certain plat of record in the county. It is, in effect, recited that the land leased is “Tract No. 9,” as shown by the plat just mentioned. We here deem it advisable to. reproduce the plat mentioned in the deed. It follows:

The land lying between the dotted lines running diagonally across “Tract No. 9” on the above plat is land involved in this suft. Defendants contend that it was excepted from the lease. It seems that at the time this lease was made the road was in use. It has since been abandoned. The county did not own the fee, but only an easement for road purposes.

A reading of the description by metes and bounds contained in the above lease will disclose that the first call is omitted. We think, however, that the description, taken as a whole, including the reference to the plat, is fully sufficient to describe Tract No. 9 shown on the plat. The reference made to the plat in the lease contract constituted the plat a part of the contract. Catlett v. Starr, 70 Tex. 485, 7 S.W. 844. At any rate, we do not understand that the defendants question the description contained in the lease contract, except as above indicated.

Before proceeding further we deem it advisable to announce certain rules of law, and cite and discuss certain authorities.

(a) When parties have reduced their contract to writing, and the terms and conditions of the written instrument are expressed without uncertainty as to the subject matter and nature of the contract, the writing is presumed to contain the whole of the agreement, and contemporaneous parol evidence is not admissible to contradict or vary the terms of the written instrument. Self v. King, 28 Tex. 552.

(b) If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217.

(c) An instrument of conveyance which conveys land definitely described in such instrument, and then excepts from such conveyance a road, railroad right of way, canal right of way, etc., as such, occupying a mere easement on, over, or across the land conveyed, conveys the fee to the entire tract, and the exception only operates to render the conveyance or grant subject to the easement. Bolton v. Dyck Oil Co., Tex.Civ.App., writ dismissed W. O. J., 114 S.W.2d 299; Penn v. Holland, Tex.Civ.App., writ refused, 105 S.W.2d 351; Shell Petroleum Corp. v. Ward, 5 Cir., 100 F.2d 778; Kansas City Southern Ry. Co. v. Marietta Oil Corp., 5 Cir., 102 F.2d 603; Cox v. Campbell, Tex.Sup., 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Devlin on Deeds, 3d Ed., p. 1851, § 989; 18 C. J., p. 338; Thompson on Real Property] § 3205.

In Bolton v. Dyck Oil Company, supra [114 S.W.2d 299, 300], the Beaumont Court of Civil Appeals had before it a case wherein one Barber conveyed to one Eaton, by metes and bounds, a tract of land in Rusk County, Texas. The last call in this deed read: “Thence eastward •with said R. R. 709 vrs. to place of beginning, containing 87 acres after deducting the right of way of said H. & O. RR.” Barber had theretofore conveyed to the H. & O. R. R. Company a right of way, a mere easement, across this tract of land. It was held that such deed, as a matter of law, conveyed the right of way subject to the easement held by the railroad company. This Court dismissed W. O. J. the application for writ of error, but it could not have done so unless it agreed with the holding above indicated.

In Penn v. Holland, supra [105 S.W.2d 351, 353], the Galveston Court of Civil Appeals had before it a case wherein a Miss Decker conveyed to the Galveston, Houston Electric Railway Company a right of way across certain land owned by grantor. At a later date Miss Decker sold to R. E. Brooks the land across which she had already conveyed the easement or right of way. The description of the land sold to Brooks included the land in the right of way. At the conclusion of the description in the Brooks deed it was recited: “Containing thirty-seven and two-tenths (37.2) acres of land and being the same land conveyed to me by Ellen J. Heggy by deed dated December 7th, 1908, and recorded in Volume 229, page 218-219, of the Deed Records of Harris County, Texas, save and except three (3) acres of land - out of said tract, the same having been conveyed by me to the Houston Galveston Electric Railway Company.” It was held that the fee to the land included in the railway right • of way was, as a matter of law, conveyed'to Brooks, subject only to the railroad easement. The Supreme Court refused writ of error in the case under discussion, and thereby approved the opinion.

In Shell Petroleum Corporation v. Ward, supra [100 F.2d 778, 779], the United States Circuit Court of Appeals for the Fifth Circuit had before it a suit for the title and possession of 5¾0 acres of land occupied by a right of way for an irrigation canal. The right of way deed conveyed to the Canal Company “ ‘the right of way for an irrigation canal,’ ” etc. Later the land across which the right of way had been granted was conveyed by metes and bounds, which included within them the 594o-acre canal right of way. At the end of the field notes description was the provision: “ ‘containing 162.00 acres of land save and except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.’ ” Under the above record the court, speaking through Judge Hutcheson, held that, as a matter of law, the fee to the land included in the right of way was conveyed by the latter deed. In the opinion it was further held that grants are liberally, exceptions strictly construed against the grantor. It was also further held that such rule would he given vigorous operation where, as in the case at bar, “a. construction is contended for which would produce the unreasonable result of splitting into two pieces a tract of land, which existed as one tract, subj ect only , to an easement, and which, in reason, must be considered to have been conveyed as such, and not to have been split into separate 'parts, with a thin wedge of land between.”

In Kansas City Southern Ry. Co. v. Marietta Oil Corp. et al., supra [102 F.2d 603], the United States Circuit Court of Appeals for the Fifth Circuit had before it a cáse wherein the facts, as shown by the opinion, were as follows: “On April 8, 1899, Lynn, and Big Pine,. Lumber Companies under whom both plaintiff and defendant claim, executed a deed in fee to one W. B. Parker covering property described as follows: ‘The S. W. ½ of the N. W. ⅛ of Section 23, Township 23] Range 16 West, less a right of way 100 feet in width reserved for the Kansas ■City, Pittsburgh & Gulf Railroad Company •through said land, in all 36, Was acres.’ ”

The court, speaking through Judge Hutcheson, held that the provision; “ ‘less a right of way 100 feet in width reserved for the Kansas City, Pittsburgh & Gulf Railroad Company through said land, in .all 36, Was acres,’ ” did not operate to •except the fee to the land in the right of way from the conveyance, hut merely the easement. In this case Shell Petroleum Corp. v. Ward, supra, is again cited and reaffirmed.

In Cox v. Campbell, supra, it was held that where a deed conveys, by specific field notes, land abutting on a railroad right of way, the deed conveys title to property to center of the right of way, even though field notes' describing the land stop at the ■side line of right of way, unless a contrary intention is expressed in unequivocal terms. The opinion in Cox v. Campbell cites and reaffirms the holding in Rio Bravo Oil Co. et al. v. J. F. Weed et al., supra, which is to the same effect.

In Devlin on Deeds, supra, the rule is thus stated: “A • deed which reserves a road of a certain width to be shut at each end by a bar or gate, reserves only a right of way and not the fee of the land reserved for a road.”

In Thompson on Real Property, supra, the rule is announced as follows: “In accordance with the general rule, an exception of a highway is not an exception of the fee,, unless such clearly appears to have been the intention, but only of the easement of the public to the use of such highway. In like manner the grant of a way or of the privilege of a highway carries an easement only. A reservation by the grantor of a road through the land conveyed, in order to enable him to reach a highway from other land owned by him, will be presumed, in the' absence of a clear indication in the deed to the contrary, to be a reservation merely of the use of the road, and not the fee therein.”

In 18 Corpus Juris, supra, the rule is thus announced: “A grant of land by metes and bounds with full covenants of warranty, excepting or reserving a roadway for the use of the public, or a right of -way for a ■ railroad, passes the fee to the land subject to the easements reserved.” .

A reading of the above lease will show that in the granting clause it grants, leases and lets to the lessee, “all that certain tract of land, * * * described as follows, to wit:” Then follows a description of the land leased, which clearly, definitely, and certainly describes all of the land in “Tract No. 9” shown on the above plat, which includes the land in the road. Then follow the words, “containing 7.86 acres, not including the road.” It will he noted that the only words in the lease contract that can possibly except anything from the grant are the words, “not including the road.” Under the rules of law above announced, and under the above authorities, the words “not including the road,” can have no other effect on this lease than to say that the grant is 'burdened with the road easement, and that the area in such road easement is not taken into consideration in computing or stating the number of acres.

As already stated, this is an action to recover the land involved as well as for damages. It appears that the defendants have removed large quantities of oil from this land and appropriated it to their own use. The amount of damages to be awarded to plaintiffs is still undetermined.

The judgments of the Court of Civil Appeals and district court are both reversed, and set aside, and judgment is here entered as follows:

(a) Judgment is here rendered that plaintiffs recover from the defendants the title and possession of the land sued for.

(b) The cause is remanded to the district court for trial on the issue of damages.


author: PER CURIAM.

text:
    DAVIS v. WILLIAMS.
    No. 25323.
    Supreme Court of Texas.
    Jan. 29, 1941.
    G. S. Arnold, of Robert Lee, and Upton, Upton & Baker, of San Angelo, for plaintiff in error.
    W. A. Wright and D. I. Durham, both of San Angelo, for defendant in error.
   PER CURIAM.

This cause is before this Court on application for writ of error. The matters presented to this Court by the application involve only questions of the admissibility of evidence. The evidence involved does not necessarily control the case. The jurisdiction of this Court is therefore not legally invoked. The application for writ of error is “Dismissed W. O. J.,” meaning this Court is without jurisdiction. Merchants’ Cotton Oil Co., Inc., v. Acme Gin Co., 121 Tex. 91, 42 S.W.2d 777; Browder v. Memphis Independent School District, 107 Tex. 535, 180 S.W. 1077.


author: FÍICKMAN, Commissioner.

text:
    LIBERTY FILM LINES, Inc., v. PORTER et ux.
    No. 2344-7583.
    Commission of Appeals of Texas, Section A.
    Jan. 29, 1941.

      D; A. Frank and D. A. Frank, Jr., both of Dallas, and Darden, Burleson & Wilson and Frank M. Wilson, both of Waco, for plaintiff in error.
    Horton B. Porter, of' Hillsboro, and Smithdeal, Shook & Lefkowitz and W. H. Shook, all of Dallas, for defendants in error;
   FÍICKMAN, Commissioner.

Defendants in error, Mr. and Mrs. W. W. Porter, filed this suit in the trial court against plaintiff in error, Liberty Film Lines, Inc., to recover damages for personal injuries sustained by them in a collision between the automobile in which they were riding and a truck belonging to plaintiff in error and being operated at the time of the collision by its employee. In answer to various special issues submitted in the court’s charge the jury found that the truck driver was negligent in several particulars, each of which was a proximate cause of the collision. In answer to other special issues the jury found that Porter was negligent in certain particulars, each of which was found to have proximately contributed to cause the collision. Because of the findings on the issues of contributory negligence the trial court rendered judgment that the Porters take nothing. On appeal the Court of Civil Appeals at Dallas reversed the judgment of the trial court and rendered judgment in favor of the Porters for $12,500, the amount of damages found by the jury, Associate Justice Young dissenting. 127 S.W.2d 480, 485.

As we understand the majority opinion, it is based upon the conclusion, not that the findings of negligence on the part of Mr. Porter were not well supported, but that the findings that such acts of negligence proximately contributed to cause the collision were wholly without support in the evidence. In granting the application for writ of error this notation was made: “We are inclined to agree with the dissenting opinion.”

A careful consideration of the record after submission has confirmed us in the view there tentatively expressed. We agree with that opinion on the questions discussed, and perceive no reason for a repetition or restatement thereof. For the reasons therein pointed out, it is our conclusion that the judgment of the Court of Civil Appeals reversing the judgment of the trial court and rendering judgment in favor of defendants in error should be reversed.

The opinion of the majority, after announcing the conclusion that the judgment of the trial court should be reversed and judgment rendered in favor of the Porters, makes this statement: “However, if it can correctly be said that the record reveals any evidence tending to show the existence of a proximate cause in either of the acts of contributory negligence, of which appellants were convicted by the jury; in such event, our conclusion would be that, the evidence to the contrary being so preponderating, we would be unwilling to affirm the judgment, but, for that reason, and for the additional reasons which will now be stated, would reverse the judgment and remand the cause for further proceedings.”

The “additional reasons” referred to above were irreconcilable conflicts in the findings of the jury. The dissenting opinion above approved discusses the question of conflicts and we are in agreement with the conclusion there announced with reference thereto. The judgment of the trial court should not be reversed on the ground of conflicts.

There remains the question of the character of judgment which should be entered here. We are informed by the opinion of the majority of the Court of Civil Appeals above quoted that in no event would that court affirm the trial court’s judgment, but that, had it not rendered same, it would have reversed and remanded same on the ground that certain answers of the' jury were against the overwhelming preponderance of the evidence. With such a disclosure made by the Court of Civil Appeals in its opinion, it is insisted that since that court has final jurisdiction of the question of the sufficiency of the evidence to support jury findings, we have no power to affirm the judgment of the trial court. Defendants in error in their written argument in this court advance this proposition of law: “Where the Court of Civil Appeals, in reversing a judgment of the trial court, reverses and renders such judgment on account of its holding of no evidence to support the verdict of the jury, and, at the same time, either by necessary implication or by an express statement to that effect, discloses that it would have likewise held the evidence insufficient to support the verdict and would have reversed on that account, then the Supreme Court, even though it does not agree with the holding of the Court of Civil Appeals that there is no evidence, is bound by Statute and the Constitution and prior decisions of the Supreme Court to respect the further holding that the evidence was insufficient, and to reverse and remand said cause to the lower court for a new trial, and is without Statutory or Constitutional authority to reverse and render said judgment or to reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.”

A number of cases are cited in support of the proposition. Typical of the cases is Chapman v. Kellogg, Tex.Com.App., 252 S.W. 151. The situation there before the court was somewhat similar to that in the instant case. The Court of Civil Appeals, 201 S.W. 1096, had held that there was no evidence supporting certain findings. The Supreme Court through the Commission of Appeals, held that there was some evidence supporting same, and in determining the character of judgment to be rendered this language was used in the ■opinion [252 S.W. 156]: “We think, as already stated, that the findings of the jury have considerable basis in the record, and we cannot recommend an affirmance of the judgment of the Court of Civil Appeals. On the other hand, we cannot recommend an affirmance of the trial court’s judgment. The finding that there is no evidence in the record to sustain the trial court’s judgment ordinarily includes the lesser finding that said judgment is against the weight of the evidence and that the same court would have remanded the case because of the insufficiency of the evidence, if that had been necessary. Such a remand is binding upon the Supreme Court. * * * ”

We have not investigated the record in that case or the other cases cited for the purpose of determining whether there were assignments in the Court of Civil Appeals questioning the sufficiency of the evidence to support the findings of the jury. If there were such assignments, then manifestly the proper disposition was made of the case. In the instant case we have carefully examined the brief filed by the Porters in the Court of Civil Appeals and find that it contains no assignments which invoke the jurisdiction of that court to decide the question of fact as to whether or not any of the answers of the jury to the several special issues were against the great weight and overwhelming preponderance of the evidence, or, to state it differently, whether the evidence was sufficient to support such findings. The assignments complained of the findings on the ground that there was no evidence to support them. In such state of the record it is well settled that the Court of Civil Appeals would have no jurisdiction or authority to pass on the question of the sufficiency of the evidence to support the findings. -

Because of the somewhat uncertain state of the authorities upon the question one of the Courts of Civil Appeals certified same to the Supreme Court in the case of Hall Music Company v. Robinson, 117 Tex. 261, 1 S.W.2d 857. In answering the certificate in that case the Supreme Court definitely set the question at rest by its holding that an assignment presenting only the question of no evidence, which is a question of law, does not invoke the jurisdiction of the Court of Civil Appeals to decide the question of the sufficiency of the evidence to support a jury finding, a question of fact. Had there been assignments in the Court of Civil Appeals invoking its jurisdiction to pass upon the question of the sufficiency of the evidence to support these various findings, we would doubtless remand this cause directly to the trial court on the statement in the opinion of the Court of Civil Appeals above set out. But there are no such assignments. The Court of Civil Appeals is therefore without power to do that which it stated in the majority opinion it would do, that is, reverse the judg-' ment of the trial court and remand the cause upon the ground of the insufficiency of the evidence. The correct practice is outlined in the case of Ochoa v. Winerich Motor Sales Co.; 127 Tex. 542, 94 S.W.2d 416.

Since we have held contrary to the holding of the majority of the Court of Civil Appeals, that there was some evidence supporting the answers of the jury complained of, and that such answers are not so in conflict as to be 'mutually destructive; and since there is no assignment presenting the question of the sufficiency of the evidence in the Court of Civil Appeals, it results that, in our opinion, the trial court has rendered an errorless judgment. By that we mean to say that no error is assigned thereto which could be sustained. Of course, it is fundamental that an appellate court will not reverse an errorless judgment.

It is therefore ordered that the judgment of the Court of Civil Appeals, which reversed the judgment of the trial court and rendered judgment in favor of defendants in error, be reversed and the judgment of the trial court affirmed.

Opinion adopted by the Supreme Court.