author: HALL, Justice.

text:
    ARCADIA REFINING CO. et al. v. COOK et al.
    No. 5681.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1940.
    Rehearing Denied Jan. 16, 1941.

      Clower, Bezoni & Wilson, of Tyler, .for appellants.
    Thompson, Knight, Harris, Wright & Weisberg, of Dallas, Lee & Porter, of Longview, D. E. Killam, of Tyler, John S. Morris and McGown, McGown, Godfrey & Logan, all of Fort Worth, Turner, Seaberry & Springer, of Eastland, and Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellees.
   HALL, Justice.

Mrs. Alice Cook, guardian of the estate of Guy V. Lewis, Jr., a minor, plaintiff below'and a plaintiff in error, instituted this suit in the District Court of Smith County against appellants and appellees, defendants below, and numerous other persons not parties to this appeal, for an alleged balance due said minor of the purchase price, represented by an oil payment, for the assignment of an oil and gas lease covering two 10-acre tracts of land designated as tracts No. 1 and No. 2. It was alleged,, and the court below so found, that Guy V. Lewis, Jr., was the owner of a ls/s2 interest in the balance of said purchase price; that Mrs. Sue L. Hueners was the owner of a like interest in said balance, and that East Texas Refining Company and Frank R. Foster, Inc., were each owners of an undivided Ys2 interest in said balance. Mrs. Sue L. Hueners, East Texas Refining Company and Frank R. Foster, Inc., were named as defendants in this suit, but adopted the pleadings of Mrs. Alice Cook, Guardian, and with her became plaintiffs in the court below and plaintiffs in error here.

Trial was to the court without a jury and resulted in a judgment for plaintiffs in error .for $6,603.04, the balance due on the purchase price for the assignment of the oil and gas lease covering the two 10-acre tracts of land, and fixed this amount as a charge against the several parcels of land involved herein, as will be discussed more fully later in this opinion. There are few disputed facts in this record. As said in ap-pellee’s brief, “the principal controversy was between defendants (in the court below) as to who was to pay this balance of $6,603.04.”

In the cause of Frank R. Foster et al. v. Mrs. Sue L. Lewis et al., No. 3007-A. in the District Court of Smith County, Ernest Goens was appointed receiver, and on September S, 1931, took charge of the oil and gas leasehold estate covering the two 10-acre tracts involved herein. On October 24, 1931, Goens assigned to Barney Carter the oil and gas lease covering the two 10-acre tracts of land and “As a part of the consideration for the execution and delivery of this assignment and the sale and conveyance evidenced hereby, the assignee herein agrees to pay to Ernest S. Goens, receiver and to his successor or. successors or assigns for the benefit of the beneficiaries the sum of Seventy five thousand dollars ($75,000.00) payable out of three-eighths (⅜) of seven-eighths (⅞) part of the total gross production of the first oil and/or gas produced from the premises herein conveyed if, as and when produced and sold, until $20,000.00 of said amount of $75,000.00 shall have been so paid, then the remaining $55,000.00 of said $75,000.00 payment to be payable only out of ¼ of ⅞ of the total gross production of all the oil and/or gas produced, * *

It is the balance of this oil payment plaintiffs in error seek to recover. Barney Carter on November 25, 1931, assigned to Liner, Inc., 2 acres off the West end of Tract No. 1, which 2 acres adjoined a 2.15-acre leasehold already owned by Liner. A part of the consideration for the 2-acre assignment was the “ * * * assumption of payment by assignee of Seventy Five Hundred ($7,-500.00) Dollars to Ernest S. Goens, Receiver, in the cause of Frank R. Foster et al. v. Mrs. Sue L. Lewis et al., No. 3007-A in the District Court of Smith County, Texas, his successors and assigns; the said $7,500.00 being the pro rata part due by assignor to the said Receiver on the purchase price of the lease assigned to him by said Receiver; said $7,500.00 to be paid to said Receiver out of ⅛ of the ⅞ of the first oil produced and saved and as, if, and when produced from a well now being drilled on the 2.15 acres of land out of the northwest corner of 67.8-acre tract. * * * ”

Said assignment also contains the following provision: “It is further provided that in the event a well should be drilled on the aforesaid two-acre lease, then this assignment and conveyance is subj ect to the terms and conditions contained in the assignment executed by Ernest S. Goens, Receiver, to Barney Carter, in the cause of Frank R. Foster et al. v. Mrs. Sue L. Lewis et al., being No. 3007-A in the District Court of Smith County, Texas, and said assignment covering the West ten acres of the J. R. Green 67.8-acre tract and the north ten acres of the W. R. Wolford 67.8-acre tract.”

On the same date of the 2-acre assignment, Barney Carter assigned the oil payment recited therein to Goens, receiver, to be applied on the original $75,000 purchase price for the leasehold covering the two 10-acre tracts. Also in further compliance with the terms of this 2-acre assignment, early in 1932 Liner, Inc., fixed an oil payment against the 2.15-acre tract in the sum of $7,500 in favor of Goens, receiver, payable out of ⅛ of ⅞ of the first oil production from said tract. Goens, by order of the District Court of Smith County, later re-assigned to Barney Carter the unpaid balance of this $7,500 oil payment and assigned the unpaid balance of the $75,000 oil payment, evidencing the consideration for the leasehold covering the two 10-acre tracts of land, to plaintiffs in error herein in the proportion of their admitted ownership.

Hall Walker, A. S. Genecov, and Sam Roosth and his seven sons, now own the ⅞ oil and gas leasehold covering the 2-acre and the 2.15-acre tracts, and are appellees herein. Barney Carter, Arcadia Refining Company, Arcadia Beeline Company, own and operate the oil and gas leasehold covering the two original 10-acre tracts, less the 2 acres, and are appellants. Plaintiffs in error and appellants each prosecuted separate appeals which have been consolidated in this court. Appellants’ assignments of error will be treated first.

Appellants’ first proposition is:

“The assignment under which the Appel-lees, Hall Walker, A. S. Genecov and Sam Roosth, held title to two acres out of an oil and gas lease covering a twenty-acre tract encumbered with an original oil payment of Seventy-five Thousand Dollars, which contains the following provisions: ‘It is further provided that in the event a well should be drilled on the aforesaid two-acre lease, then this assignment and conveyance is subject to the terms and conditions contained in the assignment executed by Ernest S. Goens, Receiver, to Barney Carter, in the cause of Frank R. Foster et al. v. Mrs. Sue L. Lewis et al., being No. 3007-A, in the District Court of Smith County, Texas, and said assignment covering the west ten acres of the J. R. Green 67.8-acre tract and the north ten acres of the W. R. Wolford 67.8-acre tract’ was sufficient to encumber the oil and gas lease covering the two-acre tract out of the original twenty-acre tract, as assigned, with its proportionate part of - the Seventy-five Thousand Dollar oil payment which existed as against the whole of the said twenty-acre tract out of which the two acres were so assigned.”

The second proposition restates the same provision of the 2-acre assignment set out in Proposition 1, and asserts that said provision, “If insufficient within itself to require that such 2-acre tract bear its proportionate ¾0 of the $75,000 oil payment, was sufficient within itself to admit parol evidence as to the intention of the parties that such 2-acre tract was to bear %o of the $75,000 in the event a well was drilled on said 2-acre tract.” Proposition 3 asserts that the provision copied in Proposition No. 1 above, “If insufficient to admit parol evidence, was sufficient to require that such assigned portion pay %o of the original $75,000 and was sufficient to require that such 2.-acre tract bear its proportionate part of the unpaid balance of the oil payment after the well was drilled on such 2.-acre tract.” The court below evidently entertained the view asserted last above for in the judgment it is found as a fact: “That the total consideration to be paid by the said Liner, Inc., its successors and assigns, for said last above-mentioned assignment of the oil and gas leasehold estate covering said west 2 acres of said Tract No. 1 was $7,500.00 and that same was to be paid either from said west 2 acres in accordance with the terms of the assignment from Ernest S. Goens, receiver, to said Barney Carter, or from the 2.15-acre tract described in the assignment from Liner, Inc., to Ernest S. Goens, receiver, or from both of said tracts; and that said $7,500.00 so paid from either or both of said tracts should be contributed to the extinguishment of $7,500.00 of said $75,-000.00 oil payment.”

The judgment then decrees that “there is a remainder of $6,603.04 owing (to plaintiffs in error) on said $75,000 oil payment as of September 1, 1937, * * * ” and to fully liquidate and discharge said oil payment of $75,000 the parties plaintiff (plaintiffs in error) “should recover in the proportion of their ownership an additional $1,248.70 from said 2.15-acre tract * * * $3,245.36 from said 2-acre tract * * * $1,054.30 from tract No. 1, less said 2 acres * * * and $1,054.68 from tract No. 2.”

In effect it is the contention of appellants that the consideration to be paid by Liner, Inc., for the assignment of the 2-acre lease was to be $15,000 in the event a well was drilled on the 2 acres. The court below permitted Barney Carter, one of appellants, and a party to the 2-acre assignment, to testify that at the time he assigned the 2-acre leasehold to Liner, Inc., it (Liner) owned a 2.15-acre lease adjoining the 2 acres upon which it could not secure a drilling permit and that it was mutually understood by him and Liner, Inc., that the $7,500 agreed to be paid to Goens, receiver, by Liner, Inc., was for protection of Guy V. Lewis, Jr., from drainage. Carter also testified:

“Q. Did you have any agreement with him (Liner) what the 2 acres would pay if it later developed that he would drill it? A. He (Liner) agreed with me that if it were drilled, that I could collect from the Guy Lewis receivership its part of the 20-acre lease charged from the Guy Lewis receivership to us, which was $7,500.00.
“Q. Did you understand by that agreement, or was it your understanding that it was to pay for production part or for the $7,500 from that ¼? A. Yes, sir; if it were drilled.”

This witness further testified that if he (Liner) ever drilled on the 2-acre tract he was to pay the -full consideration therefor. Also as bearing upon the question of the true consideration of the 2-acre assignment, the court below permitted the introduction in evidence of the assignment of Liner, Inc., to Ernest Goens dated June 30, 1932, wherein, in part, it is provided: “It is understood and agreed that this $7,-500.00 is to be payable out of the 2.15 acres above described, and is to be run to Ernest S. Goens, Receiver, in payment for 2 acres off the W. end of a 10-acre tract of land conveyed by Ernest S. Goens, Receiver to Barney Carter, and when the $7,500.00 has been paid to Ernest S. Goens, Receiver, there is to be executed a release to said Barney Carter covering the West 2 acres of the 10-acre tract conveyed in which the said Barney Carter agreed to pay Ernest S. Goens, Receiver, the sum of $3,750.00 per acre.”

And further as bearing on the question of the true consideration, as mutually understood by the parties to the 2-acre assignment, the court below permitted the introduction in evidence of the application of Ernest Goens, Receiver, to reassign to Barney Carter the unpaid portion of the $7,500 oil payment set out in the 2-acre assignment. The pertinent part of the said application is: “Whereas, it was the understanding by and between the receiver and the said Barney Carter at the time of the execution of said oil payment, that the proceeds from same should be applied towards the payment of said Seventy-Five Thousand ($75,000.00) Dollar oil payment then held by said receiver against said two ten-acre tracts, and that, if and when the west portion of the W. R. Wolford lease was drilled and protected against drainage that the remaining unpaid part of Seventy-Five Hundred ($7,500.00) Dollars oil payment should then, and in that event, be by the receiver reassigned to Barney Carter. In this connection, your receiver would show to the court that since the execution of said assignment, "there has been two additional wells drilled by the said Barney Carter on the said W. R. Wolford ten-acre tract, making a total of three producing wells on said tract, and in addition thereto the said Barney Carter has drilled, equipped and completed three wells on the Green ten-acre tract. That, in the opinion of your receiver, six wells on said two tracts afford ample and sufficient drainage to properly protect said property, and retire said oil payment within a reasonable time.”

This reassignment was made to Carter some eighteen months before a well was drilled on the 2-acre lease.

Conceding that the testimony of Carter and the two instruments introduced by him were admissible as bearing on the consideration to be paid for the 2-acre assignment as mutually understood by the parties thereto, still such evidence was not of such a conclusive nature as to preclude a finding by the trial court, as a trier of the facts, that the sum of $7,500 constituted the whole consideration of said assignment and that said consideration was payable out of the oil produced and saved from either or both the 2-acre and the 2.15-acre tract. This conclusion is warranted by the evidence. Furthermore, this record reflects that Carter was an interested witness and his testimony is not clear with respect to the purchase price to be paid for the 2-acre lease assignment, so the trial court was not bound by his testimony though uncontradicted. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017; Commercial Standard Ins. Co. v. Bank of Vernon, Tex.Civ.App., 142 S.W.2d 621, writ dismissed. It was within the peculiar province of the trier of the facts, in this instance the trial judge, “to examine such testimony in the light of all the fácts and circumstances of the case, and to give such weight to the same as [he] may consider proper.” Gulf, C. & S. F. Ry. v. Davis, Tex.Civ.App., 225 S.W. 773, 775; Miller v. Himebaugh, Tex.Civ.App., 153 S.W. 338, writ refused; 41 T.J. 1248, §§ 378, 379. We think it pertinent to state here that the court below in the judgment did not decree against appellants' the amount due plaintiffs in error from the 2-acre lease, but only those proportionate amounts due by Carter personally, as collected by him from the 2.15-acre lease, and by the two 10-acre leases, less the 2-acre lease, amounting to $3,357.68. These propositions are therefore overruled.

Plaintiffs in error, who were plaintiffs below, assert by their first proposition that “the court having found that plaintiffs should recover $3,245.36 for oil run from the 2-acre tract, should have adjudicated said sum against Genecov, the Roosths, and Hall Walker (appellees) the owners of said lease, for whose credit said oil was run.” As said before, there is no dispute respecting the amount of the balance of said $75,000 original consideration due plaintiffs in error. There is a pleading appearing in the record filed by De Soto Crude Oil Purchasing Corporation, hereafter referred to as De Soto, a defendant in the court below, denominated a bill of interpleader wherein it is alleged that said corporation has run all the oil produced from the 2-acre lease and is ready to account to the rightful owners of the same for the posted market value thereof. Attached to its bill is an itemized statement showing the total amount of oil run from said lease, the price paid for same, the amounts of money paid out, to whom paid, and the balance still owing by it, amounting to $11,891.21. This sum is tendered into court to “be awarded to whomsoever this court (trial court) shall deem entitled thereto. * * * ” There is no showing here that any amount of money was deposited with the trial court by this defendant. De Soto was at the beginning of the trial of this case in the court below, by agreement of all attorneys present, dismissed from this case on consideration that it withdraw its cross-action containing an averment in the nature of a bill of inter-pleader. This record furnishes us with no other reason for this defendant’s dismissal from this case. There is no proof in this record indicating that appellees have received any sum of money from the 2-acre lease belonging to plaintiffs in error, or that they assumed payment of any claim of plaintiffs in error against the 2-acre lease. The most that can be said is that appellees bought the 2-acre lease subject to -an outstanding oil payment. In this situation appellees are not personally liable for any amount owing by either the 2-acre lease or the 2.15-acre lease. Rabb v. Texas Loan & Investment Co., Tex.Civ.App., 96 S.W. 77; Hancock v. Fleming, 103 Ind. 533, 3 N.E. 254; Jones on Mortgages, 6th Ed., §§ 736, 751. This proposition is overruled.

Plaintiffs in error make the assertion in their brief that they were entitled to a foreclosure of a vendor’s lien on the 2-acre, lease. Unquestionably this is true. They alleged in their pleadings a vendor’s lien and also sought its foreclosure, but the trial court did not decree a foreclosure of a vendor’s lien 'in the judgment. No assignment of error or- proposition is brought forward in plaintiffs in error’s brief attacking the judgment in this respect. Therefore this error if any, is waived. Citizens State Bank of Houston v. McMurrey, Tex.Civ.App., 16 S.W.2d 541. See also 3 Texas Digest, title Appeal and Error, '^759, for a complete list of authorities on this subject.

Plaintiffs in error’s third proposition is: “The court having found that plaintiffs were jointly entitled to a judgment for $6,603.04, should also have awarded plaintiffs interest at 6% per annum on that amount from September 1st, 1937, the evidence showing that said sum so due plaintiffs was evidenced by an instrument of writing, namely the oil payment of $75,-000.00, and plaintiffs having prayed in their petition for interest on the amount found to be due them by the court, plaintiffs should have had judgment for interest as well as for the principal amount due them.”

This proposition presents error. It is undisputed that appellants stopped payment to plaintiffs in error of the original $75,000 oil payment on September 1, 1937, at a time when, as found by the court below, they were indebted to plaintiffs in error in the sum of $3,357.68. This indebtedness being represented by the written oil and gas lease assignment from Goens, receiver, to Barney Carter and containing no provision for interest, the law fixed the interest rate at 6%. Federal Life Ins. Co. v. Kriton, 112 Tex. 532, 249 S.W. 193; Kishi v. Humble Oil & Refining Co., 5 Cir., 10 F.2d 356; Wichita Petroleum Co. v. Winant, 5 Cir., 295 F. 67; R.C.S. Article 5070. The plaintiffs in error therefore are entitled to .interest on the amount of money due and owing to them by appellants on September 1, 1937, at the rate of 6% per annum from that date until paid. No such judgment can be rendered under this record against De Soto for the amount found by the court to be due and payable to plaintiffs in error from the 2-acre assignment for the reason that the De Soto after its dismissal from this suit was not before the lower court at the time the case was tried and the judgment rendered. Green v. Green, Tex.Com.App., 288 S.W. 406; Duncan v. Marlin Motor Co., Tex.Civ.App., 41 S.W.2d 740, writ refused; Turman v. Turman, Tex.Civ.App., 46 S.W.2d 447.

The contention is made by plaintiffs in error, though raised by no assignment, that the judgment herein is not a final judgment because no award is made in their favor against any one for the $3,245.36 found by the trial court to be due them from the 2 acres. It is true that the judgment does not decree who, if any one, shall pay the amount of money due by the 2 acres, but the court does render a final judgment in favor of plaintiff for the amounts due it by the parties to the case, and the judgment is final as to all those persons who were parties in the court below. As said before, De Soto who was brought into the court below at the instance of plaintiffs in error, offered to tender into the registry of the court more than three times the amount of money owing by the 2-acre lease, but it was not required to pay this money into the registry of the court; but, on the contrary, was dismissed from the litigation by all parties without prejudice. Any award or judgment against the De Soto by the court below would have been void for the reason that it was not a party to this case after its dismissal.

All other assignments have been carefully examined and are respectfully overruled.

The judgment of the court below is reformed so as to allow interest to plaintiffs in error at the rate of 6% per annum against appellants for the amount of’ indebtedness due them by appellants from and after September 1, 1937, until paid. In all other respects the judgment is affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    HOLT v. MANLEY et ux.
    No. 5226.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 2, 1940.
    Rehearing Denied Jan. 13, 1941.

      Sanders & Scott, of Amarillo (A. P. Smith, of Amarillo, of counsel), for appellant.
    . Clifford Braly, of Pampa, and Clayton Heare, of Shamrock, for appellees.
   FOLLEY, Justice.

On January 12, 1938, the appellant, D. E. Holt, and the appellees, T. K. Manley and wife, Edna E. Manley, entered into a written executory contract for the sale of three tracts of land in Dallam County, Texas. The appellant was the owner and the appellees the purchasers. The first tract is Section No. 25 in Block 2, Brooks and Burleson Survey, containing 640 acres of land and located about 11 miles west of Dalhart, Texas. The second tract contains about 850 acres and is composed of Section No. 8 in said Block 2, containing 640 acres, and 210.6 acres out of Section No. 7, Block A-7, A. C. Floyd original grantee. The second tract is located about 2 miles north of the first tract. The third tract is about 17 miles north and 9 miles west of the second tract and consists of the west one-half of Section 71, Block I, M. E. Hays original grantee, containing 320 acres of land. The total acreage in the three tracts is about 1,810 acres.

The contract price of the land was $12.50 per acre or a total consideration of $22,-625. There were separate loans against the three tracts aggregating an outstanding indebtedness of $12,512.20. As a part of the consideration for the land, this indebtedness was assumed by the appellees. For the balance of the consideration in the sum of $10,112.80 the appellees agreed to pay the appellant ten annual installments each in the sum of $1,011.28 with interest from date at 5% per annum, both principal and interest payable annually at Wheeler, Texas. The contract contained an accelerated maturity clause which shall later be discussed. It also provided that upon receipt of five of the installments of principal and interest the appellant would execute a deed conveying the land to the appellees. It was further provided that the first two tracts of land were rented to tenants; that the appellees should receive the rents thereon for 1938; that the appellees should have the immediate possession of the third tract; and that they should drill and completely equip an irrigation well on the latter tract on or before June 1, 1938.

The appellees admittedly did not perform any of the provisions of the contract. After their failure to pay the first matured installment of principal and interest, the appellant filed this suit,.which we construe to be an action for specific performance. The appellant alleged the terms of the contract; that the appellees had failed to drill the irrigation well as agreed; that they had failed to pay the first annual installment of $1,011.28 and the -annual interest due; that because of such failure the appellant had declared the entire purchase money debt matured and payable; that appellant had performed all of his obligations under the contract to date; that he was ready and able and willing to perform all the provisions of the contract and tendered a full and complete performance thereof upon the payment of the amount due him under the contract; and that by reason of the failure of the appellees to perform their obligations they owed the appellant the entire principal and interest agreed upon and for which the appellant sought judgment.

The appellees filed a general demurrer and a general denial and for special' answer alleged that the appellant through his agent, A. T. Parton, had represented to the appellee T. K. Manley that all of the “land was what is known as ‘shallow water land’, that is water in sufficient quantities could be produced from under said land for the purpose of irrigating said land and from a depth of less than one hundred feet and in inexhaustible amounts; that is, amounts inexhaustible in the ordinary wells pumped by engines in the process of irrigation of said land”; that said agent further represented that each and every foot of said land was subject to irrigation and that a sufficient supply of water for irrigation was available at a depth of less than 100 feet beneath the surface of the ground; that such representations were untrue and made with the intent to- induce the appellees to enter into the contract; that while the deal was pending the ap-pellee T. K. Manley and the appellant’s agent Parton went to Dallam County to the location of the land; that Manley made inquiry of the tenant on the land as to how deep the well located thereon actually was and the tenant was unable to inform him of the fact; that the agent Parton again assured Manley that the land was what was known as shallow water land and subject to irrigation and stated he was in a great rush to return to his home and that there was no need to make further investigation; that Manley was thereby lulled into a sense of security and made no further investigations; that relying upon such representations he and his wife executed the contract; that only the west one-half of Section 71 possessed an adequate supply of shallow water for irrigation ; that upon the remainder of the land water could be encountered only at a depth of from 300 to 500 feet and not in sufficient quantities or at a shallow enough depth adequate for irrigation; that the parties had mutually abandoned and rescinded the contract; that appellant had never at any time delivered the possession of such land to the appellees but still retained the possession thereof; and that the appellant was not therefore entitled to recover against the appellees.

In a trial before a jury findings of fact were made as follows: (1) That the agent Parton represented as a fact that all of the land was shallow water land; (2) that Manley relied thereon; (3) that the representation was a material inducement to Manley to sign the contract; (4) that the representation was false; (5) that the appellant and appellees did mutually abandon the contract; (6) that the desire of Manley to secure the title to the minerals under the land was not the paramount issue inducing the purchase of the land; (7) that the statements of Parton concerning the sufficiency of shallow water for irrigation were not statements 'of an opinion; (8) that Manley did not recognize such statements as an opinion of Parton; and (9) that Manley did not know more about the condition of irrigable water under the lands than did Parton. Upon this verdict the trial court rendered judgment that the appellant take nothing.

Before passing to the question of fraud, we deem it expedient to first dispose of the issue as to .mutual abandonment and rescission of the written contract. Suffice it to say that if a mutual abandonment or rescission exists, there could be no recovery by appellant irrespective of the alleged fraud. The appellant attacks the finding of the jury on the question of abandonment because of the insufficiency of the evidence and because the alleged abandonment or rescission, having been unsupported by any written memorandum, was within the statute of frauds. Vernon’s Ann.Civ.St. art. 3995. Both of thesp contentions must be sustained. The only evidence in support of the issue came from T. K. Manley. It was merely to the effect that Plolt had never surrendered possession of the land to him, that he had not collected any rent therefrom and that he had told Holt he was going to turn the land back. Holt testified that since the date of the contract he, too, had collected none of the rents or revenues from the land and that he had left the same tenants on the land because Manley had requested him to do so. The only reasonable inference to be drawn from Holt’s testimony is that he considered the possession of the land to be in Manley through the tenants left there at his request. There is no intimation in the evidence that there was any mutual agreement between the parties to abandon the contract nor was there a meeting of the minds of the parties upon such issue. Under these circumstances we think the testimony was insufficient to support the findings of the jury thereon. Moreover, the alleged abandonment, if amounting to anything, was, in effect, a rescission which was no doubt within the statute of frauds. In Texas the general rule is “that an agreement for the rescission of an executory contract for the sale of land is within the statute of frauds, and parol evidence of such rescission is inadmissible”. McDonald et al. v. Whaley, Tex.Com.App., 244 S.W. 596, 598; Dial v. Crain, 10 Tex. 444; Sanborn v. Murphy, 86 Tex. 437, 25 S.W. 610. As will be noted in the authorities upon the subject, this general rule has its exceptions. Where there is a partial or complete performance of the parol agreement to rescind in such manner as to make it inequitable to apply the general rule, in order to avoid irreparable injury or to protect the acquired rights of the parties thereunder, a court of equity will remove the case from the influence of the statute and enforce the parol agreement to rescind. But no such condition exists in the instant case and we conclude that the question of mutual abandonment and rescission passes out of the case.

As we view the element of alleged fraud in this case, there is one issue which we think shall control our disposition, of this appeal. This issue is with reference to the alleged independent investigation made by Manley concerning- the truth or falsity of the asserted representations. The matter is presented in connection with the trial court’s action in overruling appellant’s motion for judgment non obstante veredicto and also in connection with the court’s refusal to submit to the jury appellant’s requested issue No. 3 inquiring whether or not Manley examined and investigated the possibility of securing shallow water under the lands in question before the sale contract was executed. The appellant contends the record shows that Manley made such an investigation and thereby became charged as a matter of law with knowledge of all facts which a proper investigation would have disclosed.

There is no controversy as to the third tract of land. It is admittedly shallow water land as represented. It is with reference to the first two above mentioned tracts that the fraud is charged. The ap-pellee, T. K. Manley, contends that all of the land was represented to him as being shallow water land and subject to irrigation. The appellant contends the alleged representation was made only concerning the third tract and no such representation was made as to the other two.

The testimony reveals that the appellant Holt resided in Wheeler County, Texas, and A. T. Parton, admittedly his agent, resided in Gray County, Texas, where he and Holt were associated together in the oil producing business. In 1938, and prior thereto, the appellee T. K. Manley resided in Gray County, where through his corporate company he was engaged in secondhand pipe and supply business and also what he termed “water business”. The latter enterprise he explained as being the pumping of water to drill oil wells. Such water was pumped from wells, tanks and dams or from any place where it was available. For a number of years Manley’s company had dug shallow water wells with pick and shovel to furnish water for drilling for oil, but he had never had any experience with any other kind of water wells. In the course of his business he had dug wells in the oil fields around Pampa, Vernon and Burkburnett, Texas. In digging these wells he had encountered water at various depths, sometimes deeper and sometimes shallower than he had expected.

For several years prior to the execution of the contract, Manley had been interested in irrigated farm lands. Parton knew this and at one time a few years before the sale of the land herein Parton took Manley to see some of Parton’s irrigated land southeast of Amarillo, Texas. A short time before the signing of the contract, Parton went to Manley’s home in Gray County and informed Manley that he thought he had what Manley wanted in some lands belonging to Holt in Dallam County. A trip was planned and about two weeks before January 12, 1938, Parton and Manley went together to Dallam County to see the Holt land. The day the trip was made was a very cold one and the roads were in bad condition. Some three inches of snow was upon the ground which was drifting considerably in the roads and near the fences. Under such conditions Manley admitted they were rushed for time. After eating lunch at Dalhart they drove out west to Section 25, the first tract. They drove around three corners of this tract and then to the improvements on the place. Here there was a windmill and water well. The tenant on the land was not at home but they talked with his 14 year old son. They talked with him relative to the water supply, but he knew nothing about it. Manley inquired of him as to the depth of the well but he knew nothing about that. Parton and Manley waited some little time for the return of the tenant and Parton suggested they get back home before it became late, remarking, “No use waiting; no telling when he will be here, we can go ahead and see the other piece and find out about this later on”. Manley testified, however, that Parton was in no bigger rush than he was because it was cold and they both wanted to get away and “get back before it got too late”.

Parton and Manley then proceeded two miles north to the second tract where they also drove to its three corners and then to its improvements. There was no one at home at this tract. There was a water well here also. Parton testified that at this particular well the sucker rods were out and standing in the derrick above and that he could tell from looking at the exposed sucker rods the well was from 160 to 170 feet deep. He supposed that Manley saw the rods and that he could have estimated from them the depth of the well.

From the second tract Parton and Manley traveled to the third tract of 320 acres some 20 or 25 miles northwest. There was no tenant on this tract. After looking at the land they went across its south line to an adjoining tract belonging to someone undisclosed by the record where there was an irrigation well. The man living on this adjoining farm came out and talked with Par-ton and Manley about his irrigation well. From him they learned that it was only 20 or 25 feet to the first water, that the well was about 100 feet deep and would pump 800 gallons of water per minute. This man started up his water pump and demonstrated what it would do. Manley testified that it threw out a good supply of water. He further testified that Parton told him that all of the Holt land was shallow water land, that he relied thereon and would not have signed the contract had he known that only the third tract was shallow water land.

Parton admitted telling Manley the third tract was shallow water land but denied he made such representations as to the first two tracts. Incidentally, nowhere in Manley’s testimony did he state that Parton or any one else ever made any representations to him as to the actual depth of the water under the land. As far as the first and second tracts are concerned, Manley’s testimony in support of the alleged fraud is' reduced solely to his claim that Parton told him the land was “shallow water land” or “what is known as shallow water land”. On the contrary, Parton testified that from time to time during the negotiations he told Manley the water was from 160 to 170 feet deep upon the first two tracts.

After the above inspection Parton and Manley returned to Gray County. Some two weeks later the contract was entered into. There is no intimation that Parton or Holt in the meantime in any manner prevented Manley from making any further investigations relative to the land. It was not until some two or three months later that Manley claims he discovered'the first two tracts were not shallow water land.

In addition to the above evidence, there is one other incident which we think has some bearing upon the issue of independent investigation. While Manley was on the witness stand and was being interrogated as to the conversations at the well on the first tract where he and Parton encountered the 14 year old boy, he was asked this question: “What, if anything, did Par-ton then tell you with reference to the depth of the water in that area?” In response to this interrogatory Manley replied: “Well, he didn’t know about that particular well.” We think the latter testimony was vital in that it was sufficient to put Mariley upon inquiry and upon notice that his informant was not possessed of the knowledge Manley claims he was attempting to impart to him.

Under all the above testimony we are impelled to the conclusion there was sufficient evidence to raise appellant’s theory of an independent investigation having been begun or made by Manley and that the court erred in refusing to submit the above mentioned requested issue based thereon. In this connection the appellees contend that the appellant was not entitled to the submission of the issue because he did not at the same time request an additional issue to the effect that Manley relied upon his own investigation, asserting that the submission of one without the other would have availed the appellant nothing. We cannot accede, however, to this contention. We think the rule is that when one undertakes to discover the truth ' of representations made to him he is charged as a matter of law with knowledge of everything which a proper investigation would have disclosed. The rule applicable to such a situation is aptly expressed in Gray v. Williams, Tex.Civ.App., 290 S.W. 844, 845, in the following language: “We think the rule is well settled that, where a party who claims to have been defrauded had the means to .have discovered the fraud, if any existed, and undertakes to investigate for himself, and does make such investigation as he deems necessary, and is not hindered or prevented from doing so by any act of the other party, it must be held as a matter of law that he has knowledge of everything that. a proper investigation. would disclose, and hence would not be justified in acting on fraudulent representations, if -any were made to him, merely because they were made to him.”

In Nolan et ux. v. Young et al., Tex.Civ.App., 220 S.W. 154, 160, this court held: “If Nolan undertook to investigate and to discover for himself the truth or falsity of the representation, whether ‘invited’ or not, before he executed the contract, then he would be bound by everything a proper investigation would disclose.”

In Patterson v. Bushong et al., Tex.Civ.App., 196 S.W. 962, 966, writ of error refused, the rule is again stated: “One who undertakes to discover the truth of representations made to him is charged with the knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they were made to him.”

We therefore sustain this assignment. Newman v. Lyman et al., Tex.Civ.App., 165 S.W. 136, writ of error refused; Foster v. Bennett et al., Tex.Civ.App., 178 S.W. 1001, writ of error refused; Hawkins v. Wells et al., 17 Tex.Civ.App. 360, 43 S.W. 816, writ of error denied; Farrar v. Churchill, 135 U.S. 609, 10 S.Ct. 771, 34 L.Ed. 246; Garrett v. Burleson, 25 Tex.Supp. 41; Cole v. Carter, 22 Tex.Civ.App. 457, 54 S.W. 914; Wortman v. Young, Tex.Com.App., 235 S.W. 559; Donoho et al. v. Blunter et al., Tex.Com.App., 287 S.W. 47; United Land & Irrigation Co. et al. v. Fleming et ux., Tex.Com.App., 239 S.W. 610; Waggoner et al. v. Zundelowitz, Tex.Com.App., 231 S.W. 721.

The appellees present a cross-assignment to the effect that the appellant was not entitled to declare all of the installment payments under the contract due because the contract contained no acceleration clause providing for the maturity of future installments. The stipulation in the contract under attack is as follows: “It is agreed and understood that failure to pay any installment of either principal or interest hereon when due shall at the election of the holder hereof, mature same, and it shall at once become due and payable and subject to foreclosure as the holder may elect.” The appellees contend this agreement was to the effect that the appellant might declare due and matured only the past due principal and interest installments and does not include future maturing installments. To give this' provision this construction renders it meaningless and ineffective. 'It would'never be necessary to stipulate that past due obligations might be declared matured because they become matured ipso facto on their due date. Therefore, the phrase “mature same”, as above used, must necessarily refer to the whole principal obligation with the accrued interest. If it is not so construed it does not mean anything. Surely the contracting parties did not intend a vain and useless stipulation.

It is chiefly in view of another trial that we discuss briefly the insufficiency of the evidence in the present record to support the jury findings that the alleged representations were either false or material. Although we doubt the appellant has sufficiently raised the matter in his brief, it is at least inferentially presented in such manner that we deem it necessary to dispose of it for whatever benefit it may be for the retrial of the case.

The testimony of Manley in regard to the representations fell far short of the allegations of his answer above indicated. His testimony was only to the effect that the land was represented as shallow water land while his pleadings more or less defined such term as being where water is found in sufficient quantities for irrigating the land from a depth of less than one hundred feet. Nowhere in Manley’s testimony did he claim that Parton' represented the actual depth of the water on the first two tracts or that water could be found in sufficient quantities to irrigate such land from a depth of less than one hundred feet. Therefore the factual basis for the alleged fraud is necessarily predicated only upon the purported verbal representation that the land was shallow water land. We know of no universally accepted meaning of this descriptive phrase and we are inclined to the opinion it is purely a relative term with varying meanings in different localities. The jury was not instructed as to the meaning of the term nor does the evidence conclusively reveal the same. Under such circumstances, we doubt the 'record clearly establishes the falsity of the purported representation.

As to the materiality of the alleged representation the record is equally deficient. Parton testified 'without contradiction that there was land near Amarillo under irrigation at the present time with water produced from a depth of 160 feet; whether profitably or not the testimony does not disclose. There was no issue submitted to the jury as to the feasibility of irrigating the first two tracts of land nor does the evidence establish as a matter of law that the land could not be profitably irrigated. We are therefore of the opinion the materiality of the alleged representation was not sufficiently shown.

We also suggest, in view of another trial, that the appellees amend their pleadings relative to the alleged fraudulent representations to conform as near as possible to the proof to be offered and that the trial court submit the issues thereon in conformity to the pleadings and the testimony supporting the same.

There are numerous other assignments of error and propositions in appellant’s brief, but due to our holdings above the same become immaterial and possibly will not arise upon another trial. We therefore deem it unnecessary to discuss them,

For the errors pointed out above the judgment of the trial court is reversed and the cause remanded.


author: GRAVES, Justice.

text:
    PETERS v. MATAGORDA COUNTY DRAINAGE DIST. NO. 1.
    No. 11073.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 27, 1940.
    Rehearing Denied Jan. 9, 1941.
    F. H. Jones, of Bay City, and Cole, Patterson & Cole, of Houston, for appellant.
    Eugene J. Wilson, of Corpus Christi (Russell Morton Brown, of Corpus Christi, of counsel), for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the district court of Matagorda County— through Hon. C. G. Dibrell, as acting judge thereof — sustaining a general demurrer presented by the appellee to the petition of the appellant, seeking to recover damages for personal injuries sustained by him, while employed by the ap-pellee in the construction of certain drainage works then being done by it in Mata-gorda County; it-was in due manner and form alleged on the pari of the appellant that the negligence of a fellow employee of his', one R. E. Lindsey, a foreman on the job under whom he was working, resulted in the premature explosion of a charge of dynamite that proxhnately caused the injuries to the appellant, for which he sought damages in this action.

The court thereupon dismissed the cause, on appellant’s refusal to further amend, thereby in effect holding that such a drainage district as the appellee is, that is, one organized and operating under Vernon’s Annotated Civil Statutes of Texas, Article 8097, Chapter 7, Title 128, is not liable in damages for personal injuries resulting to one of its employees from the negligence of another of them, while it is engaged in the prosecution of those purposes for which it was so established.

That holding is directly challenged here by the appellant in this proposition: “Where the plaintiff was injured, due to the negligence of the duly-constituted employees of the defendant Drainage District, the defendant Drainage District is liable to plaintiff for the injuries received.”

The cause of action so declared upon was fully set out below in all respects essential to make it a good pleading, if not vulnerable to the demurrer, as the learned trial court thus held it to be; it is therefore deemed unnecessary .to incorporate further details as to the procedural setting under which the question was so raised for the court’s determination, since both parties concede that it was so comprehensive as to reduce the sole question in the cause, both below and here, to the one the trial court thus decided.

On appeal also, there is an able and full discussion, with extensive citations of authority by each of the parties as upholding their differing views; but, as further appears, they mutually agree' that the precise question thus posed — on an analagous state of facts to those here obtaining — has already been decided in Texas by the Beaumont Court of Civil Appeals, in the case of Jones v. Jefferson County Drainage District No. 6, 139 S.W.2d 861, 862, in which our Supreme Court has refused a writ of error. An examination of that opinion confirms the statement; that court did therein hold that such a district is not liable for such damages; in that instance, as here, no other question -was involved or decided, and that learned court thus briefly and directly declared the law upon it:

“Drainage Districts created under the provisions of Chapter 7 of Title 128, Art. 8097, V.C.S., enacted under authority of Art. 16, Sec. 59a, of the State Constitution, Vernon’s Ann.St, are political subdivisions of the state of the same nature and stand upon exactly the same footing as counties, or precincts, or any of the other political subdivisions of the state. Harris County Drainage District No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118; Wharton County Drainage District No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381; American Surety Co. v. Hidalgo County, Tex.Civ.App., 283 S.W. 267, writ of error refused; Parker v. Harris County Drainage District, Tex.Civ.App., 148 S.W. 351; Harris County v. Gerhart, 115 Tex. 449, 283 S.W. 139; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430; Braun v. Trustees of Victoria Independent School District, Tex.Civ.App., 114 S.W.2d 947; 15 Tex.Jur. 722.

“In the Gerhart Case, supra, our Supreme Court held (115 Tex. 449, 283 S.W. 140): ‘It is well established that at common law counties as a rule are not liable for injuries resulting from the negligence of their officers or agents, and no recovery can be had in damages unless liability be created by statute. Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562, 31 Am.St.Rep. 63; Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430.’

“Since drainage districts are of the same nature and stand upon the same footing as counties, and since counties are not liable for injuries resulting from the negligence of their officers or agents, it logically follows that drainage districts, likewise, are not liable for injuries resulting .from the negligence of their officers or agents.”

The trial court foretold that holding, and this appellee (while citing many other cases) depends upon it as determining this controversy in its favor, but the appellant earnestly challenges it as being erroneous (citing a number of allegedly conflicting decisions), and invites this court, if not satisfied with that decision, to certify the question herein involved to the Supreme Court; his view being that the refusal of a writ of error therein “does not necessarily stamp the opinion in that case with the approval of the Supreme Court, and the same would not be binding upon the Supreme Court.”

While this court has no doubt of the soundness of the Beaumont court’s holding, it does not so interpret the effect of a refusal of a writ of error in such circumstances; on the contrary, its understanding is that the Supreme Court’s refusal of a writ of error in that case manifested its approval of that decision of the Beaumont Court of Civil Appeals. Vernon’s Ann. Civ. Statutes, Art, 1728, Vol. 3, page 200, note 3a; Hamilton v. Empire, etc., 134 Tex. 377, 110 S.W.2d 561.

Wherefore, the sole question here presented having, in this" court’s opinion, been thus authoritatively foreclosed in the ap-pellee’s favor, the judgment will be affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    GENERAL EXCHANGE INS. CORPORATION v. ARNOLD et al.
    No. 10822.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellant.
    Lloyd & Lloyd, of Alice, for appellees.
   MURRAY, Justice.

Cecil W. Arnold instituted this suit against General Exchange Insurance Corporation, General Motors Acceptance Corporation, and Emmett West Motors, seeking to recover against General Motors Acceptance Corporation upon a policy of insurance issued by General Exchange Insurance Corporation, covering one 1937 two-door touring sedan Pontiac automobile, which automobile is alleged to have been of the value of $1,100, and to have been totally destroyed by fire on March 23, 1938. In the alternative the automobile was alleged to have been damaged in the sum of $1,050. Emmett West and Yeager Armstrong, composing the firm of Emmett West Motors, were named as defendants, but filed disclaimers and need not be further noticed. General Motors Acceptance Corporation, also named as a defendant, answered setting up the fact that it held a mortgage upon the automobile involved and was entitled to recover out of the proceeds of the insurance policy the sums due it before Cecil "W. Arnold would be entitled to any recovery against the insurance company.

The trial was to a jury and upon the verdict and certain stipulations of the parties the court rendered judgment in favor of General Motors Acceptance Corporation and against General Exchange Insurance Corporation in the sum of $724.65, being the amount of principal, interest and attorney’s fees due upon the note and mortgage held by General Motors Acceptance Corporation against the vehicle involved in the suit, and in favor of Cecil W. Arnold against General Exchange Insurance Corporation in the sum of $199.67.

From this judgment General Exchange Insurance Corporation has prosecuted this appeal. ■

Appellant’s first contention is that his general demurrer should have been sustained - because appellees’ first amended original petition did not negative the exclusions of liability contained in the ■ policy of insurance.

It is apparent from the record that General ’ Motors Acceptance Corporation was attempting to recover in this case a sufficient portion of whatever might be recovered on the policy to satisfy the note and mortgage held by it against the automobile that had been destroyed by fire. It did not file an independent cross-action against General Exchange Insurance Corporation, but sought to recover only in the event Arnold recovered. The judgment contained the following stipulation of the parties : “ * * * and came the parties and stipulated by and between themselves that the Defendant, General Motors Acceptance Corporation, is entitled to recover upon its cross-action filed herein the sum of Seven Hundred Twenty-four & 65/100 ($724.65) Dollars, being principal, interest' and attorney’s fees upon the note and mortgage held by said Defendant against the vehicle involved in this suit * *

This agreement is not challenged in any way and stands as an admission by General Exchange Insurance Corporation that the automobile was covered by their policy and that the fire was not one for which liability was excluded by the “exclusions” contained in the policy. It further appears that the judgment was based in part upon this stipulation of the parties. General Exchange Insurance Corporation having entered into this stipulation is in no position to insist that its general demurrer should have been sustained. General Exchange Ins. Corporation v. Appling, Tex.Civ.App., 144 S.W.2d 699.

Appellant next contends .that the judgment should be reversed because counsel for appellee Arnold, while making his opening argument to the jury, made the following statement: that he believed that the plaintiff (appellee) would not tell an untruth, and further that he did not believe that the plaintiff burned his automobile. Appellant objected to the argument, which objection was sustained and the jury instructed as follows: “You are instructed not to consider the statement of counsel as to his belief.”

In view of the fact that this argument was made during the opening argument, was objected to, and the jury instructed not to consider it, and the further fact that the bill of exception does not show the circumstance under which the argument was made (whether it was based upon the evidence, provoked by opposing counsel), we conclude that this proposition should be overruled. 3 Tex.Jur. par. 451, p. 644; Kansas City, M. & O. Ry. Co. v. West, Tex.Civ.App., 149 S.W. 206, 207; 4 Tex. Jur. par. 261, p. 389 et seq.

Appellant next complains that the jury’s answer to issue No. 4, to the effect that no damage was done to plaintiff’s vehicle by having the rod thrown through the block, was contrary to the uncontro-verted evidence and therefore could not support any judgment.

Issue No. 4 was merely an evidentiary issue and therefore immaterial. The jury found the.value of the automobile immediately before the fire and, by stipulation, the parties agreed'upon the value after the fire, thus the proper measure of the damage to the car was established and it becomes immaterial whether a bolt had been thrown through the block prior to the fire and the amount (if any) of the damage done thereby.

The judgment is affirmed.


author: BAUGH, Justice.

text:
    MARTIN BROS. v. STATE.
    No. 8955.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Overruled Jan. 22, 1941.

      Harris & Harris, of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Pat Coon, Richard PI. Cocke, and Ocie Speer, Asst. Attys. Gen., for appellee.
   BAUGH, Justice.

The parties will be designated as in the trial court.

The plaintiffs, road contractors, under permission granted by Resolution of the Legislature to do so, sued the State for $10,-950.64, on a contract for the construction of approximately 1'5 miles of State Highway in Liberty County. The claim asserted consisted of two items: One for $3,-090.64, claimed as due them, under the terms of the contract, for dirt moved by them in the construction of the road, for which the State refused to pay; and the other for $7,500 additional compensation by way of damages for extra work made necessary because of changes made by the State Highway Engineer in.the plans and specifications upon which bids' were asked by the State, and after the contract was entered into. The changes so made by the engineer were alleged to have made the performance of the • contract by appellants more onerous and expensive than the original contract required. Trial was to a jury, but at the close of plaintiffs’ evidence, upon the State’s motion, a verdict was instructed against the plaintiffs and judgment rendered that they take nothing; hence this appeal.

The first item relates entirely to the actual quantities of dirt moved by the contractors in performing their contract. Two ■ classes of excavation were involved: “Common roadway excavation” and “Borrow,” —the latter being dirt necessary to be taken from drainage ditches and placed in the fill or roadway proper. In the plans and specifications for the job prepared by the Highway Engineer, and-furnished prospective bidders upon which to make their bids, the amount of “common roadway excavation” necessary to be made was estimated at 146,917 cubic yards; and that of “Borrow” at 46,220 cubic yards. Under their bid and the contract, the plaintiffs were to be paid 11 cents per cu. yd. for moving the former; and 14 cents per cu. yd. for moving the latter class of material. The job was completed and accepted by the State, and, according to the final estimate of the Highway Engineer, plaintiffs moved 155,-256 cu. yds. of “common” excavation and 43,940 cu. yds. of “Borrow”, for which they were paid at the contract price. Plaintiffs alleged, however, and offered evidence to show that they had in fact moved 177,476 cu. yds. of “common” and 47,940 cu. yds. of “Borrow”, for which they were entitled under the contract to be paid, making the sum claimed as still due them for actual work done under the contract on this item of $3,090.64.

The other item of $7,500 sustained by pleading and proof was that in the plans and specifications, drawn in detail by the Highway Engineer and furnished bidders as a b'asis for their bids, there were designated on the entire 15 miles of roadway, only 26 trees to be left between the roadway and the edge of the right of way, and these were specifically -located on the plans. It was shown that in response to a questionnaire required by the Highway Department to be filled out by the bidder, and treated ás a warranty, disclosing the character of machinery the bidder had, his ability to perform'such contract, and the manner in which he proposed to perform it, the plaintiffs recited and advised the Highway Department, which was the basis for their low bid on the project, that they would do the grading and drainage work with heavy machinery consisting of an elevated grader and drag line. After the contract was executed and 'plaintiffs had begun work, the Highway Engineer caused to be designated and marked 334 other trees situated alongside the roadway to be left and directed plaintiffs not to remove them. Because of their number and location on the right of way, it then became impossible for plaintiffs to use their heavy machinery in moving the dirt required to be moved, of which fact the Highway Engineer was apprized and well knew; and that because of such change of plans by the engineer, and to meet his instructions and demands plaintiffs were then compelled to do most of such work with plows and fresnoes drawn by mules, to remove dirt from around such trees so as not to injure them, thus necessitating more laborers and much heavier expense to the plaintiffs than the original plans and methods of work required or called for; and that as a result, because of the change made by the engineer, the plaintiffs were required to expend, in performing their contract, at least $7,500 more than would have been necessary had the plans and specifications been left as they were when the contract was made.

In addition to general and special exception's, and general and special denials, the State defended on the grounds that the matter of leaving or removing trees from the right of way came within the portion of the contract relating to grubbing and clearing the right of way contracted for by the acre and for which the plaintiffs had already been paid in full. Also that the contract provided that all disputes between the parties should be decided by the engineer whose decision would be final and binding; and, in effect, that the engineer having decided the matters here involved against the plaintiffs, they are without recourse or remedy.

The State Highway Department’s Standard Specifications attached to and made a part of the contract contained, among numerous other provisions, the following:

“5.1. Authority of Engineer. The work will he done under the supervision of the Engineer, to his satisfaction, and in accordance with the contract, plans and specifications. The Engineer will decide all questions which may arise as to the quality or acceptability of materials furnished and work performed; the manner of performance and rate of progress of the work; the interpretation of the plans and specifications; and as to the acceptable fulfillment of the contract on the part of the Contractor. His decisions will be final and he will have executive authority to enforce and make effective such decisions and orders as the Contractor fails to carry out promptly.
“5.2. Engineer as Referee. The Engineer will act as referee in all questions arising under the terms of the contract between the parties thereto and his decisions shall he final and binding.”

These provisions thus become a part of the contract, and since plaintiffs, in so far as the first item above indicated is concerned, sued upon the contract they necessarily must be held to have affirmed it. If we properly understand the plaintiffs’ contention it is that this attempted delegation of such authority to the engineer is void because it undertakes to vest in him judicial authority.

It is now settled law, however, that such a provision in a building contract is valid and binding. As stated in 9 Am. Jur., § 36, p. 26: “It may be stated generally that any stipulation whereby the par-tías constitute an architect or engineer the final arbiter between themselves, as to any matter connected with the contract, makes the decision of the architect or engineer conclusive as to, such matter.”

This rule seems to be universally recognized, except, perhaps, in Indiana. See numerous annotations in 54 A.L.R. 1255 et seq.; supplemented by annotations in 110 A.L.R. 137 et seq.; 4 Tex.Jur., § 10, p. 718; 7 Tex.Jur., § 14, p. 554; Schoenfeld v. De Puy, Tex.Civ.App., 58 S.W.2d 574; McKenzie Const. Co. v. Chanowsky, Tex.Civ.App., 86 S.W.2d 480. In so far as the engineer’s decisions relate to the interpretation of the 'plans and specifications, and to the proper performance of the work, he acts in his capacity as an engineer. But as to his decisions “as referee” in contro-versies between the parties he acts in the capacity of an arbitrator. 4 Tex.Jur., § 7, p. 715. And his decisions in either event, where, as here, he has by agreement been clothed with power to make them, are conclusive on both parties to the contract, “in the absence of a showing of partiality, fraud, misconduct or gross error.” 4 Tex. Jur., § 22, p. 686, and cases cited in footnote. Nowhere in plaintiffs’ pleadings, however, do they allege any of these grounds as reasons for setting aside the findings of the State Highway Engineer of the quantities of materials moved by them; nor that he failed to exercise an honest judgment in the matter. As to this item sued for, therefore, the plaintiffs neither pleaded nor proved sufficient grounds for setting aside the engineer’s decision.

However, the other items sued for, we think, presents a different situation. It is true that the standard specifications above referred to provided: “4.3. Changes and Alterations. The Engineer will have' the right to make such changes and alterations in the plans or in the quantities of the work, as may be considered necessary or desirable, and such changes and alterations shall not be considered as a waiver of any condition of the contract, nor shall they invalidate any of the provisions thereof. The Contractor shall perform the work as increased or decreased and no allowances will be made for anticipated profits. When such changes and alterations increase or decrease the quantity of work to be done or of materials to be furnished under any item in excess of twenty (20%) per cent then either party to the contract, upon demand, shall be entitled to a revised consideration upon that portion of the work above or below twenty (20%) per cent of the quantity stated in the proposal; such revised consideration to be determined by special agreement or as is hereinafter provided under ‘Extra Work.’ ”

But it is clear, we think, that changes so authorized could not be made by the engineer which would alter the terms of the contract as made between plaintiffs and the State. Manifestly, the changes contemplated within the above-quoted authorization related only to details in the performance of the contract and did not authorize the engineer, after the contract was executed, to so materially alter its provisions as to require 'the contractors to discharge burdens which they did not contract to assume. To hold otherwise would in effect be to authorize the engineer to impose upon the contractors burdens they had never contemplated nor agreed to when they made their bids and obligated themselves to assume by entering into the contract. In brief, it would authorize the engineer to alter the material terms of a written contract already made.

In the instant case when the plans and specifications were submitted to the bidders they showed in detail the work to be done. Only 26 designated trees were to be left- on the right of way. These were so located and staggered as to allow the use by a bidder of heavy machinery in grading, draining, and moving materials into place; instead of doing so with teams, plows, and fresnoes, a more expensive method. By questionnaire the State required the bidder to disclose to it what equipment he had with which to do the work, and how he proposed to do it. In reply to this, all of which became material to the contract, plaintiffs advised the State of their equipment, that is, elevator machinery and drag lines, and that they proposed to do the work with that equipment. The State was therefore apprised not only of the ability of the contractors to do the work but also of the basis of their bids, all of which was a part of the consideration for their contract. They not only proposed to do the work, therefore, but to do it with the machinery made known to the State. By the use of such machinery, which they could have used under the plans submitted to them, and on which their bid was made, they could have constructed the road in a much shorter time and at less expense than was necessary by the use of teams, fresnoes, etc. These facts were, of course, known to the State, when the contract was made; and it was made in the light of such facts.

If, therefore, as pleaded and proven, after the contract had been signed and the rights of the parties fixed thereunder, the engineer so altered the plans and specifications as to require the contractor to leave on the right of way 360 trees instead of 26, and by so doing made it impossible for the contractor to use the machinery he proposed, with full knowledge of the State, to use; and required him, because of such changes, to perform the work in a different and more expensive manner than was -required or necessary when plaintiffs made their bids and signed the contract; the net result of such changes, under the circumstances, would be a material alteration of the terms of the contract itself. This the engineer had no authority to do. Consequently, any decision by him which resulted in changing the terms of the contract was clearly beyond the scope of the authority vested in him by the contract, and would not be final and conclusive on the plaintiffs. Galveston, H. & S. A. R. Co. v. Henry & Dilley, 65 Tex. 685; Galveston, H. & S. A. R. Co. v. Johnson, 74 Tex. 256, 11 S.W. 1113; City of Galveston v. Devlin, 84 Tex. 319, 19 S.W. 395; McDaniel v. City of Beaumont, Tex.Civ.App., 92 S.W.2d 552, 560; 4 Tex.Jur., § 7, p. 715; 9 Am.Jur., § 36, p. 27; Ann. in 54 A.L.R. 1264. If, therefore, the changes made in the plans by the engineer required of the contractor additional labor and expense beyond that provided for in the contract, the contractors were entitled to be compensated therefor as for extra work. 7 Tex.Jur., §§ 64 and 65, pp. 626 et seq.

Nor do we think, as urged by the State, that the matter of leaving additional trees on the right of way was included within, and concluded against the plaintiffs by, the terms of the contract relating to “Clearing and Grubbing.” That was a separate section of the contract relating to clearing the right of way prior to beginning construction proper, for which the contractors were to be paid by the acre. It is clear, we think, that the control given the engineer over this phase of the preliminary work would not authorize him to exercise his judgment in such manner as to materially change the other provisions of the contract relating to the construction work to follow. The clearing was but incidental and preliminary to the principal undertaking to follow,- — the construction of the road.

Having reached the conclusion that the trial court erred in directing a verdict against the plaintiffs, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    STANCIL v. MILLS & EXPORTS CO.
    No. 5705.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 19, 1940.
    Aubrey A. Wilson, of Gladewater, for appellant.
    R. L. Whitehead, of Longview, and William E. Ladin, of Houston, for appellee.
   WILLIAMS, Justice.

Humble Oil & Refining Company, in response to writ of garnishment served upon it October 25, 1938, answered that it was not indebted to the Houston Pipe & Steel Company, the defendant in garnishment. Garnishee impleaded Mills & Exports Company of Houston, appellee herein, and further answered: “Garnishee says that on October 27, 1938, * * * garnishee received an invoice from Houston Pipe & Steel Company, Greggton, Texas, dated October 17, 1938, in the amount of $809.30, covered by Humble Oil & Refining Company order No. B-14031 * * * together with letter dated October 20, 1938, from the said Houston Pipe & Steel Company assigning payment of the amount of said invoice to Mills & Exports Company. * * * ” The above sum of money represented purchase price of certain pipe, covered by the invoice, that garnishee had purchased from Houston Pipe & Steel Company, and which funds garnishee admitted it was holding for payment of the invoiced pipes.

F. E. Stancil, plaintiff in garnishment, and appellee, Mills & Exports Company, in a trial to the court, joined issue as to whether such funds had been assigned to appellee prior to service of writ of garnishment. The court found that the Houston Pipe & Steel Company had assigned same to appellee prior to issuance and service of the writ, and awarded judgment in favor of appellee against garnishee in the sum of $809.30. From this judgment Stancil has appealed.

Appellant’s assignments of error attack the sufficiency of the evidence to support the judgment. Appellant introduced in evidence garnishee’s answer which contained, among other statements of the pleader, the paragraph quoted above. This answer he placed in evidence without any limitation. As stated in 20 Am.Jur. p. 771, § 915, “One introducing documentary proof bearing upon an issue vouches for its accuracy so far as that issue is concerned and is, as a general rule, bound by its recitals for all purposes.” Plaintiff, having introduced in evidence these statements in the quoted paragraph without any limitation, is concluded by them. Texas & N. O. R. Co. v. Patterson & Roberts, Tex.Civ.App., 192 S.W. 585; McClung Const. Co. v. Langford Motor Co., Tex.Civ.App., 33 S.W.2d 749; 17 T.J. p. 929.

The purported assignment in the form of the letter attached to appellee’s pleadings, if it had been offered in evidence, would have been the best evidence of its contents. But testimony was introduced, without objection, of its contents and the date of and reason for its execution, and other circumstances surrounding the whole transaction. As stated in 17 T.J. p. 497, § 195: “Secondary evidence admitted without objection, when competent, may be considered in passing upon the sufficiency of the evidence to prove a fact or sustain a judgment.” Long & Berry v. Garnett, 59 Tex. 229, 231. Appellant charges no fraud in the execution of the alleged assignment. The evidence does not contradict any of the statements contained in the garnishee’s answer.

We see no reason to disturb the findings of the trial court, 3 T.J. p. 1059, §§ 747, 748, and the judgment is affirmed.


author: PRICE, Chief Justice.

text:
    JENNISON v. DARNIELLE et ux.
    No. 4009.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.

      R. H. Mercer, of San Antonio, for appellant.
    Johnson & Rogers, of San Antonio (Nat L. Hardy, of San Antonio, of counsel), for appellees.
   PRICE, Chief Justice.

This action was instituted in one of the District Courts exercising ' jurisdiction in Bexar County by Edward E. Darnielle and his wife, as plaintiffs, against Edward Travis Jennison, as defendant, seeking to recover damages for the alleged negligent infliction of personal injuries to plaintiffs’ son, as a result of which the son died. The trial was to a jury, submission on special issues. The court, on the motion of plaintiffs, set aside the finding of the jury on special issues numbers 18, 19 and 20, and rendered judgment for the plaintiffs in the sum of $7,500. Defendant Jennison has duly perfected this appeal.

The parties are here designated as they were in the trial court.

In substance, plaintiffs alleged, among other things, that defendant, on or about the 10th day of April, 1937, was driving east on Burr Road in his automobile on the left-hand side of the highway at a negligent rate of speed, and that about the three hundred block negligently ran into plaintiffs’ minor son, Thomas Darnielle, who was then between seven and eight years of age, and inflicted personal injuries upon Thomas, as a result of which, in about one week thereafter, he died.

Defendant answered by general exception, general denial, and detailed special pleas of contributory negligence on the part of deceased Thomas and his parents.

Just how the accident occurred is not specifically developed by the pleadings of either party. There was, however, no question raised on the pleadings, and same are deemed to support the issue submitted.

By the evidence and verdict it is established that the defendant was driving his automobile east on Burr Road in the suburbs of the City of San Antonio; that immediately before the collision Thomas Darnielle rode his bicycle out of the Farris driveway onto Burr Road, and the bicycle and defendant’s automobile collided. The Farris driveway is a private driveway north of Burr Road, leading into said road; the collision being imminent, the boy seems to have attempted to turn to the right to proceed west on Burr Road; the automobile and bicycle seem to have side-swiped each other; the impact, as evidenced by marks on the rear fender and handle of defendant’s car, was on the left rear part of defendant’s car as it was going easterly.

The jury found in favor of plaintiffs on the negligent rate of speed of defendant, and that same was a proximate cause of the injuries to their son; further, that just prior to the collision defendant was operating his car on the left-hand side of the highway, and that same was negligence and a pi'oximate cause of the injury; against plaintiffs on issue as to defendant’s car not being under control and as to lookout; damages were found in the sum of $7,500; in favor of plaintiffs on all issues of contributory negligence submitted, save as to the issue of negligent rate of speed.

It is deemed necessary to here set out this finding, which is comprehended in issues numbers 18, 19 and 20.

“Question No. 18: Do you find from a preponderance of the evidence that at the time and on the occasion in question, Thomas Darnielle was operating his bicycle at a negligent rate of speed? Answer: Yes.
“Question No. 19: Do you find from a preponderance of the evidence that such act, if any, was negligence ? Answer: Yes.
“Question No. 20: Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the accident? Answer: Yes.”
On motion of plaintiffs, of which due notice was given, the above findings were set aside and then judgment entered on the verdict for plaintiffs.

There can be no question that with these findings the verdict was for the defendant; without them, in favor of plaintiffs. The pleadings of defendant were sufficient to tender the issue, and the only question here is as to whether the evidence raised the complete issue.

By the very terms of Article 2211, Vernon’s Civil Statutes, under which the trial court acted, justification for such action must find support in the fact that the jury finding had no support in the evidence.

An act or omission alleged to be negligent, to constitute same a defense to, or cause of action for, negligence, must be established. The evidence must likewise establish that the acts or omissions have the quality of negligence; 'further, that same is a proximate cause of the injury.

The act in question here is the rate of speed plaintiffs’ son came out of the driveway. In order to raise the issue as to such rate of speed being negligence, the rate thereof must be established with some degree of definiteness. It need not be established with mathematical certainty, but to judge the quality of an act, what the act was must be shown. In determining the rate of speed the child came out of the driveway the jury had the circumstances surrounding the accident. The Farris driveway sloped down as it led into Burr Road; the view west from the driveway on Burr Road, as to which the evidence was somewhat conflicting, was obscured to an extent; there was the manner and consequences of the accident, the position of the two vehicles after the accident; the effect thereof on the respective vehicles, the relative position of the two vehicles after the accident.

The fact that the Farris driveway sloped! toward Burr Road, standing alone, certainly of itself would not tend to establish that Thomas rode his bicycle down same at a negligent rate of speed. It would render it possible for him, perhaps, to operate same at a'greater rate of speed than he could have done on a level road or uphill.

We cannot see that the other circumstances above narrated throw any light upon the rate of speed at which this child was operating his bicycle at the relevant: time. If this issue was raised, it was by the testimony of defendant and the witness Berry. Defendant testified that he saw the boy. when his car was fifteen feet from the west line of the Farris driveway; that he was driving his' automobile at a rate of speed of from twenty-five to thirty miles an hour, the boy was coming due south at a terrific rate of speed; that he turned to the right, and that the boy was attempting to turn to his right in order to get down the road going west; the contact between car and bicycle was slightly west of the driveway. The following is reproduced from the deposition of the defendant:

“Q. About what rate of speed was the child going? A. I have no idea, all I can tell you he was going fast.
“Q. Was he going as fast as you were? A. How could I say? He could hardly do that on a bicycle.
“Q. Would you assume he was going as much as ten miles an hour? A. I just could not estimate that, all I know is that for a bicycle he was traveling very fast.
“Q. In other words, it is your position now that you do not know how fast he was going, or is it your position that you do know? A. I will tell you this, he was going so fast that his bicycle was trembling.
“Q. From the time you saw him until the time of the impact you could denote the tremor of the bicycle, could you? A. Yes.”

In our opinion, all that this testimony amounts to is an opinion by the witness that the boy was going fast. How fast, he could not say. It gives us an impression of the witness, but no standard to judge of the correctness of such impression.

The witness Berry testified:

“Q. Was this bicycle coming fast or slow, or just how was it coming? A. Well, it appeared to me when I saw it that he shot out just like a bullet; that is just how fast the thing happened. He must have gathered up a tremendous amount of speed coming down the driveway.” ,

Now the last sentence of the quoted answer has no probative value and is simply an argument of the witness. The gist of the statement is, he came out of the driveway like a bullet. It seems to us that the evidence of the two witnesses above quoted is lacking in definiteness. This lack of definiteness might be explained in part by lack of opportunity to form a correct judgment of the’ rate of speed of the bicycle. The occupants of the car were traveling, by their own admission, at a minimum rate of at least 36.62 feet per second. Their opportunity of forming their impression was confined to a fractional portion of a second. This, however, were the testimony more definite, might go only to the weight thereof.

A number of cases have held this character of testimony admissible. Galveston H. & S. A. Ry. Co. v. Huebner, Tex.Civ.App., 42 S.W. 1021; McCabe v. San Antonio Traction Co., 39 Tex.Civ.App. 614, 88 S.W. 387; Beaumont Traction Co. v. Dilworth, Tex.Civ.App., 94 S.W. 352; San Antonio Public Service Co. v. Murray, Tex.Civ.App., 59 S.W.2d 851; Sanders v. Lowrimore, Tex.Civ.App., 73 S.W.2d 148.

However, we do not believe that any one of the above cited cases is authority that a finding of negligent rate of speed is justified from such testimony where it stands alone and uncorroborated.

Defendant, in justification of the submission of the issue in question, cites the case of Ranne v. Jackson, Tex.Civ.App., 125 S.W.2d 407. There, the witness testified that “Jackson .(the plaintiff) was ‘going plenty fast; just as fast as his car would go.’ ” Jackson (plaintiff) testified that when he first saw the truck it was about 225 feet from him, and about sixty or seventy-five feet from the point of the collision; that the truck was going about forty miles an hour. If plaintiff’s testimony was correct, his car was going twice as fast as the truck. It was very properly held that defendant was entitled to a submission of the issue of negligent speed on the part of plaintiff. There was also evidence that plaintiff had been drinking just prior to the collision. As we understand the holding, it was, the evidence, considered as a whole, raised the issue of negligent speed.

Here, we are dealing with the probative effect of the testimony of the witnesses Jennison and Berry, not as to its admissibility. In other words, its sufficiency to raise an issue for the determination of the jury.

It seems to us to be elementary that 'testimony may be admissible on an issue and fall short in its sufficiency to establish same.

In the case of Aycock v. Green, Tex.Civ.App., 94 S.W.2d 894, 898, it is said: “The only evidence concerning the speed of the car was the testimony of the deputy, who said the car was going at a ‘pretty rapid gait/ which is a purely relative term, from which, alone, no jury could convict the driver of operating the car at an unlawful, or excessive, or unusually dangerous speed.” The issue involved, however, was under Article 6701b, the “guest statute.”

The boy was unquestionably moving when he came out of the driveway. It is not shown that he ever crossed the center line of the Burr Road. According to the verdict the preponderance of the evidence failed to show this. Under the findings and evidence, his rate of speed was not such that he was unable to turn right on Burr Road on the proper side thereof. This, however, belongs perhaps more properly to the consideration of the question of proximate cause. Suffice it to say that we deem this testimony to have slight, if any, probative value. We are very doubtful as to its sufficiency to raise the issue of negligent speed on the part of the boy. Aycock v. Green, supra; Law v. Gallegher, Del.Sup., 197 A. 479; Wertz v. Shade, 121 Pa.Super. 4, 182 A. 789; Bates v. Escondido Union High School Dist., 9 Cal.App.2d 43, 48 P.2d 728; Swayne v. Connecticut Co., 86 Conn. 439, 85 A. 634, 737; Zoltovski v. Gzella, 159 Mich. 620, 124 N.W. 527, 26 L.R.A.,N.S., 435, 134 Am. St.Rep. 752.

It may be that under the record it is defendant’s right to have the conduct of this eight-year old child viewed as though he were an adult. If this be true, to convict him of negligence, something more than his mere youth and inexperience should be the basis of the inference thereof. The presumption of due care attaches to his conduct until it is proven otherwise. The burden was upon the defendant to establish such negligence.

Plaintiffs by counter proposition urge that even though the evidence was sufficient to raise the issue as to negligent speed on the part of their minor son, it fails, as a matter of law, to raise the issue as to proximate cause.

The defendant asserts that there was ample evidence to justify the submission of the issue, citing us to the case of Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, as sustaining his position. We have carefully examined that case and the report of the opinion of the Court of Civil Appeals, Andrade v. Southern Pine Lumber Co., 94 S.W.2d 583. It appears an issue as to defendant’s operating his motor vehicle on the wrong side of the road was submitted and found in favor of plaintiffs. An issue of contributory negligence as to the rate of speed of plaintiff was found in favor of defendant. The sufficiency of the evidence to support the finding as to proximate cause seems not to have been assigned as error. Prima fa-cie the verdict was in favor of defendant. The Court of Civil Appeals held the verdict should not stand because the finding of the jury on the issue submitting damages intrinsically and inherently evidenced bias and prejudice on the part of the jury. The Commission of Appeals held that the verdict should be upheld, that a finding against the preponderance of the evidence as to another issue wa-s not sufficient to fatally taint the entire verdict. We do not think it can be successfully contended that in all cases where defendant was guilty of driving on the wrong side of the road that in no event could a negligent rate of speed proximately contribute to the injury.

Negligence established, the question of proximate cause is ordinarily one of fact and not of law. This is not always true, however. In Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 225, 38 S.W. 162, the defective fastening on the stockyard gate was held, as a matter of law, not to be the proximate cause of the personal injury to plaintiff. This holding was based on the lack of foreseeableness of the injury from the negligent omission. Likewise, to constitute an act or omission the proximate or legal cause of the injury in question, it must be shown that the injury would not have occurred but for the operation of same.

The jury found that defendant was operating his car south of the center line of Burr Road; that they did not find from a preponderance of the evidence that the boy failed to stay on his right-hand side of the road just prior to and at the time of the accident. The collision then occurred south of the center line of Burr Road. Clearly the injury would not have occurred but for the fact that defendant was operating his car on his left-hand side of the road. Still some negligent act of the child might contribute to his injury. There may be more than one proximate cause. The verdict is that it was not negligence on the part of the boy to ride his bicycle out into Burr Road just prior to the accident. If this be taken as fact, it is hard to conceive how his rate of speed had anything to do with his injury. Had he been riding at a high rate of speed this would not have prevented him from swerving less quickly to his right. As we understand it, it is not contended that the child was riding too slowly. It might be argued that had the boy been riding more slowly it would have given the defendant time to have avoided the consequences of his own negligence in operating, the automobile on his left-hand side of the road at a negligent rate of speed. On the other hand, holding this immature child to the exercise of the same degree of care as an adult, could he reasonably foresee that defendant, at a negligent rate of speed, was negligently coming east on the wrong side ■ of the road? Thomas Darnielle, child of tender years though he was, had the right to assume, in the absence of notice to the contrary, that the defendant, and those coming east along Burr Road, would use ordinary care for the safety of others hav~/ ing equal rights to use same. In the brief moment after becoming aware of the approach of defendant’s car, it is reasonable to infer that he could neither slacken nor increase the speed of his bicycle. In the absence of notice of the negligent conduct of defendant this boy had a right to be where he was at the time he was struck down. He might reasonably have anticipated that a vehicle approaching from the east would be traveling along the same pathway it was in his intention to travel, but not one coming from the west.

It is elementary, in determining the issue of proximate cause, the same standard should be applied to the conduct of' the plaintiff as to that of defendant. Justification for the verdict that defendant was negligent in driving too fast and on the wrong side of the road is found in the fact that he was driving through a built-up portion of the community; that the access to the road along which he was driving was necessarily through driveways, being on the left-hand side' he might reasonably anticipate that anyone seeking to enter same from a northerly intersection would necessarily cross the pathway of his car; that one so entering could not reasonably expect the automobile to be where it was being driven; that primarily one entering the highway from the north would be on the lookout for vehicles approaching from the east. Had the boy been going at the rate of one hundred miles an hour, considerably less than the speed of a bullet, had defendant been on the south side ’of the highway, under the record, the impact would not have taken place. If defendant had been on his proper side of the highway and this child driven suddenly in his pathway, another question would be presented. In that event, the child should have anticipated the consequence of his action;- but this is not the case. Concede he rode rapidly into his side of the road and tried to ride rapidly west, did this render it more likely he would be struck by one coming east?

As we have said, if justification there was for disregarding the issues found in favor of defendant, it must be found in their lack of support in the evidence.

It is elementary that to constitute contributory negligence the element of proximate cause must appear from the testimony. Lacking this element, negligence of' the plaintiff is no defense. Galveston, H. & S. A. Ry. Co. v. Pendleton, 30 Tex.Civ.App. 431, 70 S.W. 996.

In Ramirez v. Salinas, Tex.Civ.App., 90 S.W.2d 891, there is a citation of a number of cases illustrative as to when the issue of proximate cause is one of law and when an issue of fact for the jury. This case held that, under the facts, driving a truck at night without lights was the proximate cause of the injury. In 131 Tex. 537, 117 S.W.2d 56, this holding was commended, although the application was insufficient to give jurisdiction over the writ of error.

Let it be granted that this boy suddenly appeared on the northerly half of the road. This act was the occasion rather than the legal cause of his injury. He had a right, sanctioned by custom and by law, to be there. All of the evidence construed in the light of the surrounding circumstances indicates this bicycle never crossed the center line of Burr Road. The jury found that just prior to the accident the boy rode his bicycle out of Farris’ driveway. But for the negligence of defendant this act did not place him in peril. By the verdict there was pfaced upon this boy. the duty of anticipating and avoiding the negligence of defendant. We are aware that no strict interpretation of the testimony of the defendant and the witness Berry should or could be made. Both placed the point of impact about four feet from the west line of the driveway. According' to their testimony the automobile was from fifteen to twenty feet from the west line of the driveway on their discovery of the bicycle. It would be a miracle if these estimates were accurate. But according to the supported material findings of the jury, which have the equivalence of undisputed facts, and giving the testimony any reasonable interpretation it is susceptible-of, it indisputably appears the boy was struck on his side of the highway. Further, that the negligent rate of speed at which the car was driven, the negligence in driving on the wrong side of the highway, combining and co-operating, were the sole proximate cause of the injury. We think the close, accurate and able analysis of the testimony by Judge Funderburk in the case of Ramirez v. Salinas, supra, to the facts there in some measure applies here. Had there been a finding in that case that the driving of the car without lights was not a proximate cause, same could have been with propriety set aside by the trial judge.

The case of Porter v. Liberty Film Lines, Inc., Tex.Civ.App., 127 S.W.2d 480, has likewise received careful consideration. Likewise the action of the Supreme Court on the granting of the application for writ of error with tentative approval of the forceful dissenting opinion of Judge Young. The facts there are not parallel with the facts here. In our opinion the reasoning of the dissenting opinion in no way conflicts with our disposition of this case.

It is asserted that the trial judge was largely influenced in the action taken by consideration and study of a note in 77 A.L.R. 598, and the authorities therein discussed. In our opinion, strong support is to be found for the action taken in the authorities there cited and discussed.

In order that negligence constitute contributory negligence the element of legal causation must be established by evidence more substantial than a mere conjecture.

The assignments of error as to rendering the judgment in favor of the plaintiffs are overruled.

Defendant requested the submission of some forty-six or forty-seven special issues. How many of these were given or refused we have not thought necessary to investigate. Error is assigned on the refusal to submit requested issues as to failure of deceased to apply the brakes; that he had been warned to stay out of Farris’ driveway; as to the failure to stay out of the driveway; as to whether it was negligence for deceased to play on the street; as to whether plaintiffs warned deceased as to the danger attendant on riding his bicycle out of the driveway; as to failure of the deceased to heed a warning to stay out of the driveway. These various issues were supported by appropriate subsidiary issues.

Now as to those issues as to the boy playing in the driveway or on the road, this record is without evidence to justify their submission. So, as to the failure of the boy to apply the brakes on the bicycle. Further, in regard to the issue as to playing on the Farris’ driveway, under this record, if he did so do, there is no evidence but that he had the right. This child had as much right to the lawful use of Burr Road as did the defendant. There is no supported finding that any act or indiscretion on his part contributed to bring about his death. There is in our opinion no evidence to sustain any such finding or raise any .^of the other requested issues.

In our opinion all of the charges the refusal of which is complained of were properly refused by the trial court.

The judgment is affirmed.