author: WALKED, J.

text:
    DUFF v. DU BOSE et al.
    (No. 1780.)
    Court of Civil Appeals of Texas. Beaumont.
    March 1, 1929.
    Rehearing Denied March 13, 1929.
    Kennerly, Williams, Lee, 1-Iill & Sears, of Houston, for appellant.
    Wolters, Blanchard, Woodúl & Wolters, of Houston, for appellees.
   WALKED, J.

This suit was instituted by appellees against appellant to cancel a mineral and oil lease executed by them or their privies on April 29, 1919, to him on 50 acres of land, a part of a larger tract of 500 acres owned by them on the I-Iicks-Shropshire survey in Et. Bend county. This larger tract had been subdivided into smaller tracts, and the 50 acres in controversy comprised block No. 5, containing 20 acres, block No. 10, containing 20 acres, and the south half of block 21, containing 10 acres. Appellant answered by pleading specially his defenses, setting forth in minutest detail the things done by him and his assigns under the lease, pleading that these acts were sufficient to save the leasehold from forfeiture and to give him a vested interest therein. Simply on the pleadings, without hearing any evidence, the trial court held that the legal effect of the facts pleaded by appellant was to divest him of all rights under the lease and to reinvest ap-pellees with the ' title thereto, and entered judgment accordingly. The question presented by this appeal is: Did appellant plead himself out of 'court by confessing facts which entitled appellees to judgment canceling the lease? The following is a brief statement of the facts pleaded by appellant. He thus summarized the conditions of the lease in controversy:

“Said lease provided that the lessors therein, in consideration of the sum of Ten Dollars ($10.00) cash paid by B. G. Duff, lessee, did lease, let and demise the fifty (50) acres above described, and did grant, let and demise the fifty (50) acres above described, and did grant, transfer and assign to tbe lessee, subject to the royalties stated, all oil, gas and other minerals on or under, and full rights of ingress and egress to and over, the premises aforesaid, intending to convey to lessee subject to the terms thereof not only all of the oil, gas and sulphur and other minerals under said land, but also to grant to him all rights of ingress and egress held by lessors on and over other tracts theretofore owned or held by lessors or under which lessors own the mineral right's in said Five Hundred (500) acre tract above mentioned.
“Said instrument provided that the said lessors made the said grant to lessee, his heirs and assigns, for the purpose of exploring the same for the producing of oil, gas and other minerals therefrom and to that end also granted the exclusive right of drilling and operating thereon for oil, gas and other minerals, together with the right-of-way for and the right to lay pipe lines to convey water, oil, gas and coal produced from the leased premises, to drill and operate any wells or mines, and to drill for oil, together with such other privileges as were reasonably requisite for the conduct of said operations, all upon the following conditions:
“That lessee should,' within ninety (00) days from date begin operations for the drilling of a well on said land and conduct same with reasonable diligence in a bona fide attempt to discover oil or gas until such well might be completed or abandoned.
“That in case lessee should fail to comply with the foregoing stipulations in the above paragraph, he should forfeit bach to lessors all his rights thereunder.
“That after the completion of said well, lessee should have the right to make as many more attempts to find oil or gas as he should please, provided that such attempts should be successive in the sense that until oil or gas be found not more than sixty (60) days should elapse between the cessation or abandonment of work on one well and the beginning of work on another; and provided further that after the completion or abandonment of the first or any subsequent well, if same should prove unproductive, lessee should have the right at any time within sixty (60) days after the completion or abandonment of such well to pay to lessors stipulated rentals per acre, and in case of such payment or deposit, the time of lessee, his heirs or assigns, in which to begin the drilling of the next well might be extended for a period of six (6) months to run from the date of such payment, and that similarly lessee might from time to time make payments on or before the expiration of each such extension of six (6) months, and thereby extend the time in which to begin another well on said premises, provided the aggregate of such extensions should not .exceed a period of three (3) years to date from the completion or abandonment of said first well or subsequent wells; and provided further that said Duff, his heirs or assigns, should have the right to pay and retain such extension on the whole or parcels of said land to be designated by him, and any tract or tracts on or with reference to which said Duff, his heirs or assigns, should fail to make payment within the time stipulated should thereby be released and all rights thereunder be forfeited to lessors, their heirs or assigns.
“That if oil or gas be discovered on said land in paying quantities, lessee should have the right to produce same, and such right should remain in effect so long as oil, gas or other minerals ‘can be produced from same in paying quantities, and provided lessee shall in such event further develop the said land for the production of oil, gas or other minerals as may be justified under the circumstances. If lessee fails to comply with this provision, this lease shall terminate.’
“(This is one of the most material provisions of the lease.)
“Said lease further provides:
“ ‘At any time after the completion of said well, Lessee shall have the right to surrender this lease, and on such surrender shall be discharged from all obligations hereunder, but upon such surrender lessee shall have the right to retain any producing well or wells, together with the five-acre tract, or tracts, on which any such wells are located, it being agreed that each producing well shall earn and hold five acres, the same to be laid off as nearly in the form of a square with the well in the center, as is possible. Lessee shall have the right to drill as many more wells in such retained tracts as he pleases so long as oil, gas and other minerals can be produced from any such tracts in paying quantities, provided, however, that lessee shall pay a royalty as herein stipulated on the production from any such retained tracts:’
“That if oil be .produced in paying quantities by operations thereunder, lessee should deliver to lessor one-sixth of the oil saved' from that produced.
“Royalties were provided as to gas and sul-phur and all other minerals.
“That if any well producing oil in paying quantities should be brought in on adjacent property within one hundred (100) feet of the line of any of the tracts covered hereby, lessee should drill such offset well on the tracts above leased as should be necessary to properly protect the interests of the lessors and of the lessee thereunder.
“That failure to do and perform any or all of the conditions set forth in said instrument rendered same null and void and at the option of lessors.
“That all conditions and terms thereof should'extend to the heirs, executors, legal representatives and assigns of all the parties thereto.”

This lease was executed and accepted in settlement of a controversy between appel-lees and ai>pellant over the validity of the lease held by him under them covering the 500-acre tract, of which this 50 acres is a part. Under this settlement appellant released his claim on 250 acres of the 500-acre tract, and appellees afterwards leased 24S acres of this 250 acres to the Texas Oil Company for about $150,000. Appellees, under this settlement, confirmed appellant’s claim to 150 acres of the 500-aere tract, and gave him a new lease on 50 acres, being the lease in controversy. As‘part of the settlement, a third party, the Blue Ridge Oil & Gas Company, wa's given a lease on the remaining 50 acres of the 500-acre tract. After the settlement was made, the Texas Company took over appellant’s obligations under the 50-acre lease and 150-acre lease, and the obligations of the Blue Ridge Oil & Gas Company under its -50-acre lease, thus holding all the 500 acres, except about two acres reserved by appellees. Afterwards, on the 13th day of June, 1919, the Texas Company entered into a pooling agreement with appel-lees, appellant, and the Blue Ridge Oil & Gas Company, by which the 500-acre tract was to be developed as one proposition, all the interested parties, sharing in the production in proportions satisfactory to them, regardless of where' the development was had on the 500-acre tract. The following are the only provisions of this agreement pertinent to this appeal. Jt provided that all the leases were “combined, merged, pooled, and shall hereafter be considered one lease for the purpose of development and operation by The Texas Company.”

It further provided that the Texas Company had the option at any time to surrender the premises to the interested parties jointly, or, if they did not want a joint assignment, then the Texas Company had the privilege of reassigning each of the original leases back to the parties under which it held. Under this pooling agreement, appel-’ lees consented and agreed to a suspension of the drilling obligations' imposed upon' appellant by the terms of his- leases on the 150-acre tract and the 50-acre tract in controversy, and agreed that during the life of the pooling agreement the operations by the Texas Company should suspend operations by appellant, but there was nothing in this pooling agreement suspending appellant’s obligations under his lease beyond the life of the pooling agreement. The Texas Company operated under this pooling agreement from June 14, 1019, to November 9, 1925, drilling ten wells on the 500 acres at a net loss to it of about three-fourths of a million dollars. Four of the wells, Nos. 1, 2, 7, and 13, were drilled on appellant’s 150-acre lease, and two, Nos. 9 and 11,-on the 50-aere lease in controversy. Well No. 1 was completed on the 5th day of January, 1921, to a depth of 3,488 feet, but was destroyed by sanding up. However, because of the showing it made, many leases and much development resulted on smaller adjacent tracts at great cost to the operators. None of these wells were producers. Afterwards the Texas Company tried to' develop other sections of the 500-acre tract, drilling wells Nos. 2, 3, 7, and 8 at various locations thereon without finding production. About May 1, 1922, it commenced drilling its ninth well on block No. 5, near its southeast corner. This well was completed in 1922 at a depth of 3,892 feet, coming in with small production, but showing unfavorable formation. It was operated under the pooling agreement to March, 1923, when it was abandoned, after producing only 4,274.78 barrels of oil. Well No. 10 was then drilled on the 24S-acre tract leased direct from appellees, and about January 12, 1923, was completed at a depth of 3,900 feet, with an initial production of 3,000 barrels daily, and has continued a good producer. Well No. 11 wás completed to a depth of 4,805 feet without discovering oil, and was abandoned about May. 20, 1924. Afterwards the Texas Company-completed another well near well No. 10, which came in as a small producer, but lasted only a few weeks. Afterwards the Texas-Company began drilling well No. 13, on appellant’s 150-acro lease, but abandoned it about the 13th of October, 1925, as a dry hole at a depth of 4,592 -feet. On the 9th day of November, 1925, the Texas Company notified all interested parties that under the terms of the pooling agreement it was withdrawing therefrom, and would operate no longer thereunder, and was ready to reassign to all interested parties the leaseholds held by it under them,, except under the pooling agreement it was reserving well No. 10, with 10 acres surrounding. Afterwards, on the 3d of December, 1925, though the contract was dated the 14th of November, 1925, the Texas Company reconveyed to appellant the leaseholds on the 150-acre tract and on the 50-acre tract held by it under him. Afterwards-appellant made many unsuccessful efforts to interest oil companies and oil operators in a further development of the 50 acres. About August 1, 1920, appellees made a lease on the 500 acres to Navarro Oil Company. About August 13, 1926, they requested appellant to re-convey to theiji, his claim on this 50 acres, which he refused to do, on the following grounds, as pleaded by him:

“That defendant’s lease was still good, and that he proposed to hold same, that further drilling on any part of the premises covered by said fifty (50) acre lease under existing circumstances was not justified, but that if the Navarro Oil Company found a new sand or succeeded in completing a good producing, profitable well on its location near the South, boundary line of said Block No. 5, defendant would feel that same would constitute circumstances justifying his drillling of an offset well on the South part of Block No. 5, and that he would be willing to do so. Plaintiff Robinson insisted that .defendant give up defendant’s lease and execute a release thereof, stating that if defendant persisted in his refusal to do so, plaintiffs would file suit against defendant to cancel said fifty (50) acre lease. Defendant protested against such proposed action and insisted upon his right to hold Block No. 5 and the balance of the premises covered by his fifty (50) acre lease until some new development occurred that sufficed to overcome the lessons taught by the disastrous experience of The Texas Company and of the various other companies that had drilled in that district.”

Appellant pleaded no act under the lease, except the operation by the Texas Company under the pooling agreement. He admitted that it was not his intention to develop further the 50 acres, unless development by other parties of adjacent land should show with reasonable certainty that oil in paying quantities would be discovered on his 50 acres. It is not controverted, but confessed by appel-lees, that the operations of the Texas Company under the pooling agreement were sufficient to protect appellant’s rights under this lease during the life of the pooling agreement.

Appellant advances the following propositions against the judgment:.

(1) The discovery of oil by the Texas Company by drilling well No. 9 on the land in controversy was in satisfaction of the drilling obligations imposed upon him by the terms of this lease.
(2) The obligations of the defendant under his lease did not revert to him until the 3d day of December, 1925, the date the reassignment was, in fact, executed.
(3) Oil having been found by the Texas Company by drilling well No. 9 on this 50 acres, appellant was entitled to the benefit thereof in measuring his obligation to appel-lees, which was to do only “such further drilling as under the circumstances might be justified,” and on the facts pleaded he was excused from making any further development until operations on adjacent lands should show with reasonable certainty that oil in paying quantities would be discovered on his 50 acres. He pleaded that his offer on such conditions to have the land developed was a compliance with his drilling obligations.
(4) The facts pleaded raise an issue of fact for a jury as to whether under the circumstances further operations were justified, and the facts pleaded did not, in law, as the trial court held, amount to a forfeiture of his rights under the lease.
(5)“The provision of said lease requiring the defendant, after oil might be obtained in paying quantities, to do such further drilling as the circumstances might justify was too indefinite to be the basis for a forfeiture by the court, especially when road in connection with the other provision of said lease to the effect that a violation of all or any of the terms in said lease should give the lessors the option to cancel, and the most that the lessors were entitled to do was to make a demand upon the defendant that'he drill a well after the re-acquisition of his lease from The Texas Company, and give him a reasonable time within which to do that, and plaintiffs failing both to make such demand for the drilling of such well and to give defendant a reasonable time to do it have precluded themselves from claiming a forfeiture or termination of the lease.”

Opinion.

From the facts pleaded by appellant and his propositions thereon, it is manifest that he relies solely upon the operations of the Texas Company under the pooling agreement to save a forfeiture of the leasehold in question. We think the only effect of the pooling agreement was to toll the time when the drilling and other obligations assumed by appellant under this .lease would become effective against him. During the time the Texas Company was operating on the 500-acre tract as a unit proposition, it was operating under the conditions of the pooling agreement, and during that time, by the express conditions of that agreement, appellant’s obligations were suspended. However, there was nothing-in that agreement substituting the operations by the Texas Company for the personal obligations assumed by appellant, but only suspending his obligations. Prom the execution and delivery to appellant of his lease, nothing was ever done thereunder by him or any one else for him to satisfy its obligations. While’the pooling agreement was in force, appellant’s rights under this lease were protected, for, as we have said, by its express terms it tolled during its life appellant’s obligations to appellees, but, when the pooling' agreement was terminated, the obligations against appellant were ipso facto revived, and, since he admitted that he had done nothing to discharge the burdens of the lease, the law declared a forfeiture against him. .On the construction we give the facts and the law applicable thereto, appellant’s propositions are necessarily denied. The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: BARCUS, J.

license: Public Domain

text:
    ZEPHYR v. MILLER.
    (No. 770.)
    Court of Civil Appeals of Texas. Waco.
    Feb. 21, 1929.
    Higgins & Glass, of Marlin, for appellant.
    Rogers & Wright, of Marlin, for appellee.
   BARCUS, J.

This suit involves the care, custody, and control of a 6 year old negro girl. The cause was tried to the court, and resulted in a judgment leaving the child with her grandparent, Henry Miller, appellee herein.

The record discloses that in 1921 appellant married Beulah Miller, a daughter of ap-pellee, and about 4 months after said marriage the child in controversy was born. A short time after she was born her mother, Beulah, obtained a divorce from appellant. After Beulah married appellant, she continued to live with her parents, and was living with them at the time the child was born, and continued to live with them until 1926, when the child was past four years old, at which time she married Leon Sealey, with whom she lived for 14 months, until she died in the spring of 1928. During the time she was married to Leon Sealey they lived next door to her parents, and the child in controversy lived with Beulah, her mother, but spent a great deal of the time with her grandparents, Henry Miller and wife. A few months after her mother died, her grandmother Miller also died,, leaving her with hex-grandfather, Henry Miller, who is 66 years old, and his two daughters, one about 18 and the other 22 years of age, said two daughtei-s having been living with the family at all times. After the death of the grandmother, appellant, as the father of said child, brought this suit to get possession of her. In 1924 appellant married, and, as the fruit of said marriage, had at the time of the trial a daughter 3 years old. He claims the right to the child in controversy by virtue of being her father, and wants to take the 6 year old girl into the home with his second wife and their 3 year old girl.

The record shows that after appellant married Beulah Miller he did not live with her, and that after the child was born he did not pay her any attention, and prior to the time the child’s mother died in 1928, when the child was a little past 6 years old, he had never contributed anything to her support, and had never been with her or associated with her. During these 6 years, under the testimony, the grandfather had fed and clothed and provided all the necessaries for the child. Without any objection, the child was permitted to testify, and, according to her testimony, she does not know anything about her father, and does not want to go with him, but wants to remain with her grandfather and her two aunts.

Under the facts of this case, we do not think there was any error in the action of the trial court in awarding the custody of said child to her grandfather. While the law recognizes that the parent, under ordinary conditions, is the proper guardian of his child, still, where, as in this case, the child in infancy was abandoned by the parent, and new and permanent relationships have been established between the party who has had its custody and the child, such that the separation would be manifestly unjust to the child, the courts will not disturb this relationship. We do not think that appellant has shown that it would be for the best interest of the child to be taken away from her grandfather and placed in his home with a stepmother and her 3 year old girl. Under the evidence, there is no question but that the child is being well eared for by her grandfather and two aunts. Under conditions very similar to this, our courts have held that the pai-ent was not entitled to the care or custody of the child. Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351; Miller v. Banks (Tex. Civ. App.) 280 S. W. 301; State ex rel. Rumsey v. Jackson (Tex. Civ. App.) 212 S. W. 719; Kendall v. Williams (Tex. Civ. App.) 233 S. W. 296. The real test in this class of eases is, What is for the best interest of the child? Under the facts set out in this case, we cannot say that the court has not made the proper order, looking alone to the child’s best interest.

The judgment of the trial court is affirmed.


author: HIGHTOWER, O. J.

text:
    FOUNTAIN et al. v. HOOKS et ux.
    (No. 1816.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1929.
    Rehearing Denied March 20, 1929.
    Holland & Cousins, of Beaumont, for appellants.
    O. S. Parker, of Beaumont, for appellees.
   HIGHTOWER, O. J.

In this case the trial court rendered judgment in favor of the plaintiff, J. B. Hooks, against J. O. Fountain, E. L. Adams, and L. M. Adams, who were some of the defendants, for $26,986.62, iwith interest on that, amount from date of judgment at the rate of 8 per cent, per annum. The judgment also established and foreclosed certain liens on certain real estate and certain personal property as against all defendants to the suit as prayed by the plaintiff Hooks. The judgment further disposed of certain issues involved between the defendant Fountain and his codefendants, E. L. and L. M. AdamS. From the judgment in favor of Hooks, all defendants have appealed by filing a cost bond.

The transcript was filed in this court in due time, but there is no statement of facts with the record, nor have any of the appellants filed a brief.

On the day before the cause was set for submission in this court, appellee filed a written request that the judgment be affirmed, pointing out that there was no fundamental error disclosed by the record. On the day the cause was called for submission counsel for appellants filed in this court a written request that the cause (not the appeal) be dismissed, stating that there was no statement of facts in the record and that appellants had filed no brief. This request was resisted, by counsel for appellee.

As we understand the rule, this court may, in its discretion, dismiss a*n appeal where the appellant fails to file briefs as required by the rules, or may affirm the judgment appealed from, in the absence of fundamental error. But we know of no rule which requires or permits this court to dismiss the cause itself, especially over the protest of the appellee, who urges affirmance where the appellant has filed no brief.

We therefore must overrule appellants’ request to dismiss this cause; and no fundamental error being suggested, and none discovered by us, it is ordered that the judgment of the trial court be in all things affirmed.


author: HIGGINS, J.

text:
    MITCHELL v. SCOTT.
    (No. 2179.)
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1928.
    On Motion to Postpone Action on Motion for Rehearing Oct. 25, 1928.
    Rehearing Denied March 14, 1929.

      C. W. Groom, of El Paso, tor appellant.
    Harrison & Scott, of El Paso, for appellee.
   HIGGINS, J.

Appellee Scott sued William Jessen and recovered judgment for $673.83. A writ of garnishment was sued out against appellant, Mitchell, and served February 16, 1328. Appellant answered in the negative the matters inquired of in the writ, which answer was controverted. Upon trial without a jury, judgment was rendered in Scott’s favor for the sum above mentioned.

While we do not agree with the conclusion of law upon which the trial court based its judgment, nevertheless the judgment rendered is correct upon the undisputed facts.

At the time the writ was served, Jessen, doing business as the El Paso Engineering Company, was installing a refrigerating plant for Mitchell, which was completed subsequent to the service of the writ, and there remained a balance of $1,238.50 due for installing such plant, which amount was paid by Mitchell to Glen Lewis by check on February 24, 1928.

Mitchell seeks to justify such payment by virtue of an assignment from Jessen to Lewis as evidenced by a letter dated February 3, 192S, received by Mitchell February 11, 1928, signed by El Paso Engineering Company by W. Jessen, Mgr., addressed to Mitchell, which reads:

“This is to notify you that we have assigned our rights to payment on the Refrigeration Plant, which we are now installing for you, to Mr. Glen Lewis.
“You will therefore, .kindly make out check in Mr. Glen Lewis’s name and deliver to us upon completion of the installation.”

This letter is the only evidence offered of the alleged assignment. Mitchell testified it was brought to him by Jessen. There is nothing to show it was ever in Lewis’ possession. Mitchell further testified that, when the installation was completed, he called Lewis up and told him to come and get the check, other than this he had no conversation with Lewis; that Lewis came and got the check. Further, “I did not notify Mr. Lewis right then (referring to the time of the delivery of the letter to him by Jessen) that it had been delivered to me, but when the job was completed I told him to come and get the check.”

Lewis testified:

“There has been a letter introduced in evidence signed by El Paso Engineering Company ; an order on Mr. Mitchell to pay. me some money, however, that money was not for me. At that time I had no arrangement with Mr. Jessen. I had no interest in that money; I acted as secretary for Mr. Stevenson in the transaction. The amount of the cheek I received from Mitchell was $1228.00. * ⅞ * I cashed the check and the money I put in the safe. If I know what happened to it afterwards — well, I considered it a business transaction; the money was .placed in there and afterwards deposited in the bank, but I am not sure about that — Mr. Fred Stevenson’s account. I did not get a dime of the money. s ⅜ * Mr. Stevenson was out of town when that happened and turned everything over to me to handle. In other words when he is out of town I handle his business and any money for his business; I look after all transactions pending and to do.”

Jessen did not testify, nor did Stevenson.

In order for Mitchell to escape liability to Scott for the garnished fund, it was incumbent upon him to show the payment to Lewis was made by virtue of a valid assignment of the fund from Jessen to Lewis prior to service of the writ. The evidence fails so to do in two essential elements of á valid assignment. “An executory agreement to assign or transfer is not an assignment; to constitute a valid assignment there must be a perfect transaction between the parties, intended to vest in the assignee a present right in the thing assigned.” 5 C. J. 840.

Mere tentative proceedings in expectation of an assignment do not constitute an assignment ; “there must be a present transfer of the assignor’s right, a transfer so far complete as to deprive the assignor of his control over the subject of assignment.” 5 C. J. 898,

As was said by the Supreme Court of the United States in Christmas v. Russell’s Ex’rs, 14 Wall. 69, 20 L. Ed. 762:

“The assignor must not retain any control over the fund — any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund-holder can safely pay, and is compellable to do so, though forbidden by the assignor.”

See, also, Davis & Hoggin v. State Nat. Bank of El Paso (Tex. Civ. App.) 156 S. W. 321; Patterson v. Citizens’ Nat. Bank (Tex. Civ. App.) 236 S. W. 130; Banholzer v. Grand Lodge, 119 Mo. App. 177, 95 S. W. 953.

As has been stated, the quoted letter is the only evidence offered of the alleged assignment. This letter, while it directed Mitchell to make the check in Lewis’ name, further instructed Mitchell to “deliver to us.” By this latter direction Jessen retained complete control of the fund. For this reason a valid assignment, either at law or in equi-, ty, was not shown by the letter.

As shown by the testimony of Lewis, he had no beneficial interest in the alleged assignment, and his action in the premises was for the benefit of Fred Stevenson. He assumed the obligation and duty of a trustee. He could not be bound by the contract of assignment without his assent. Alliance Milling Co. v. Eaton, Guinan & Co., 86 Tex. 401, 25 S. W. 614, 24 L. R. A. 369; Wallis, Landis & Co. v. Taylor, 67 Tex. 431, 3 S. W. 321.

It does not appear from the evidence the letter was ever in Lewis’ possession. It is not shown that he knew anything about the alleged assignment until Mitchell telephoned and told him to come for the check. The only evidence of his assent is his acceptance of the check subsequent to the service of the writ, and cashing same. This late acceptance would not defeat the prior garnishment of the fund. Alliance Milling Co. v. Eaton, Guinan & Co., supra; Kempner v. Rosenthall, 81 Tex. 12, 16 S. W. 639; Wallis, Landis & Co. v. Taylor, supra.

The evidence failing in two essential features to show a valid assignment prior to service of the writ, the judgment should be affirmed. It is so ordered. ,

On Motion to Postpone Action on Motion for Rehearing.

Appellant has filed motion for rehearing and a motion setting up that the principal defendant, Jessen, has prosecuted a writ of error from the judgment upon which the present judgment against Mitchell ⅛ based; wherefore Mitchell 'asks that action' upon his motion for rehearing herein be postponed until the writ of error in the principal case be disposed of.

In an opinion this day handed down the api>eal by writ of error has been stricken from the docket for defects in the return upon the citation in error. We do not know whether Jessen will ever perfect his writ of error. Thirty days is ample time for him to do so. It would not be proper to indefinitely postpone action upon the present motion for rehearing to await Jessen’s pleasure in further prosecution of the writ of error.

On the other hand, if he does perfect the writ and the judgment in the principal case be reversed, then the present judgment against the garnishee should be likewise reversed, for the latter judgment is dependent upon the former. Rowlett v. Lane, 43 Tex. 274; Madero v. Calzado (Tex. Civ. App.) 281 S. W. 328: New Amsterdam Casualty Co. v. Keith, (Tex. Com. App.) 273 S. W. 836; Nesom v. City Nat. Bank (Tex. Civ. App.) 174 S. W. 715.

It is therefore ordered that action upon the motion for rehearing herein be postponed for 30 days. If the writ of error be perfected within that time, action upon the motion for rehearing will' be further postponed until final disposition in this court of the writ of error in the principal suit.

On Rehearing.

In an opinion recently handed down by this court, the judgment obtained by Scott against the principal defendant, William Jes-sen, was reformed by eliminating an item of $150, and, as thus reformed, the judgment was affirmed.

It is therefore ordered in the present appeal that the judgment obtained by Scott against Mitchell, garnishee, be likewise reformed by eliminating $150 of the recovery by Scott.

With this reformation and modification of our original judgment in the present appeal, the motion for rehearing is overruled.


author: CONNER, O. J.

text:
    RENSHAW et al. v. SULLIVAN.
    (No. 12065.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1929.
    Rehearing Denied Feb. 16, 1929.
    Burch & Woodruff, of Decatur, and Templet on & Templet on, of Fort Worth, for appellants.
    MeMurray & Gettys and Fatterson & Cates, all of Decatur, for appellee.
   CONNER, O. J.

This action was instituted on May17, 1927, in the district court of Wise county by G. W. Sullivan, as plaintiff, against Luther M. Terry, L. W. Renshaw, Wayne Renshaw, Joe Wren, and R. J. Anderson, as defendants. The object of the action was to recover of said Luther M. Terry the sum of $2,660, which the plaintiff claimed said Terry owed him for the years 1925 and 1926 as rent for 240 acres of agricultural lands situated in Wise county, and which he claimed he had leased to said defendant Terry about the last of December, 1922, at an agreed annual rental of $1,830, payable in cash each year from the proceeds of the crops raised on the premises as such crops were gathered. The petition charged that said tenant had gathered and sold and disposed of the crops raised on said premises during 1925 and 1926 without paying the rent owing to the plaintiff, which he charged amounted to $1,330 per year, aggregating $2,660 for the two years. The plaintiff sought to recover from the other defendants upon an allegation “that said defendants each and all. wrongfully appropriated and converted to their own use and benefit all of said crops on which this plaintiff had and held such landlord’s lien, having so taken possession of and converted said crops for each of said years as same were gathered and thereby deprived this plaintiff of his right to have same used and applied in the payment of his said rents to his damage in the sum of $2,660.00 for which he sued with interest and cost.”

The plaintiff’s suit is based on the following contract entered into between defendant Terry and plaintiff, which, so far as involved in this appeal, reads as follows:

“State of Texas, County of Wise:
“Know all men by these presents, that G. W. Sullivan, as party of the'.first part, and L. M. Terry, as party of the second part, both of Wise County, Texas, have this day made and entered into the following agreement, to-wit:
‘Tarty of the first part, for and in consideration of the sum of $100.00 to him in hand paid by L. M. Terry, the receipt of which is hereby acknowledged, hereby agrees, binds and obligates himself, his heirs, executors and administrators, to give party of the second part the option to buy and to convey to him by general warranty deed or to any person, persons or corporation he may designate, and to furnish and deliver to him a complete abstract showing a good and merchantable title, at any time that said party of the second part may demand on or before the, first day of January A. D. 1927, for the sum of $19,000.00 to- be paid to party of the first part according to the following terms, all in cash, the following described lands situated in the County of Wise, State of Texas, more particularly described as follows: (Here follows a description of the two tracts of land situated in Wise County, aggregating 240 acres.)
“Sdid party of the first part further agrees, binds and obligates himself that he will let the party of the second part remain upon the above described property and use and occupy it and to cultivate said lands during the term and life of this option, conditioned that the party of the second part will pay to party of the second part the sum of $1,330.00 each year, payable in the fall or the first day of January of each year after the harvesting of crop upon the lands. ⅜ * ⅞
“Witness our hands in duplicate, this the 29th day of Dec., 1922.
“G. W. Sullivan, First Party.
“L. M. Terry, Second Party.”

The above was duly acknowledged by G. W. Sullivan and L. M. Terry on said 29th day of December, 1922.

The defendant Terry pleaded a general demurrer and a general denial. The defendants Renshaw, in addition to the general demurrer and general denial, specially pleaded that the sum claimed by the plaintiff as rent for the years 1923 and 1924 had been paid, and the rent for the year 1925 had been settled by a judgment in favor of plaintiff against defendant Terry. These defendants further pleaded that during the time Terry occupied the promises in controversy the plaintiff had permitted Terry to use and cultivate the farm and dispose of all crops raised thereon as his own, and hence had waived the right to the landlord’s lien claimed.

The case was submitted to a jury, and their findings and the supplemental findings of the court not questioned are to the effect that while the rentals as referred to in the court’s charge for the year 1925 had not been paid, the manner and method of the plaintiff Sullivan in reference thereto was such as to reasonably indicate to the defendants and cause them to reasonably believe that Terry was authorized to sell the crop of that year, and plaintiff had waived his landlord’s lien. As to the crop for the year 1926, however, the undisputed evidence shows that on the 13th day of September of that year the plaintiff caused a levy to be made on one bale of the cotton raised on the premises in'controversy, claiming a landlord’s lien for the unpaid rent of that year; and the findings, are to the further effect that after the levy of that writ D. W. Renshaw- and Wayne Renshaw purchased in the open market the cotton raised on the Terry premises, of the total value of $1,501.59. Based on such findings, and the court’s evident conclusion that- the defendants Renshaw were affected with notice of the landlord’s lien and that it had not as to them been waived, judgment was entered against D. W. and Wayne Renshaw and Terry in favor of plaintiff, Sullivan, for the sum of $1,419.75; that being the amount of the rent with interest due the plaintiff, Sullivan. The judgment was further in favor of defendants Joe Wren and R. J. Anderson, the finding being that they had not appropriated any of the crop of 1926. From the judgment so rendered, the defendants D. W. and Wayne Ren-shaw have prosecuted this appeal.

The principal contentions of appellants, presented in various forms, are to the effect that the contract between the plaintiff Sullivan and Terry did not create the relation of landlord and tenant, and that hence the court should have given the peremptory instruction requested by appellants, and further that the court erred in assuming in his charge that the sums specified in the contract for payment of Terry’s permission to remain on the premises was rent.

The cardinal rule for the construction of written instruments of the character of the one under consideration is well stated in the opinion of Mr. Justice Speer, of Section B of our Commission of Appeals, in the late case of Couch v. Southern Methodist University, 10 S.W.(2d) 973. In construing a deed there under consideration, the judge said: “The first rule in construing a written instrument always is to seek to arrive at the intention of the parties to the end that their purpose may be effectuated. There are many artificial aids in the inquiry, but at last the intention of the parties as gathered from the instrument as a whole must prevail.”

The contract under consideration here indicates, as we think, that the parties thereto had in view two separate provisions. The first, and perhaps the major, object was to confer upon the defendant Terry the right within the period specified to purchase the-premises at the price stated. The consideration for this optional right was $100-, the receipt of which Sullivan acknowledged. The right was unconditional. It adhered throughout the term specified. As an incident to the right given to Terry to purchase, he was-granted the further option of remaining- upon and using the premises; but in event he elected to do so, the contract specifically required that he should pay the sum of $1,330- for each year he should so possess and use the premises. As we view the contract, these several provisions in no wise conflict. They present a harmonious whole, and no other basis for the right of Sullivan to the $1,330 can be suggested, other than that this sum was the compensation to lie paid as rental. Terry evidently, at every period prior to an exercise of his option to purchase, bore the relation of a tenant to the plaintiff, Sullivan. Pee 16 R. C. L. tit. Landlord and Tenant, § 299, p. 208, to the effect that such contractual relations are ■consistent and permissible. In Frazier v. Kicks, 172 Ark. 1139, 292 S. W. 368, 51 A. L. R. 1287, the Supreme Court of Arkansas, construing a somewhat similar contract, held it to be a contract with provisions for it to be converted into one of purchase of the property, and further held, as stated in the syllabus, that: “Parties to contract for lease of land may contract that it shall become a contract of sale and purchase, requiring lessor to make absolute deed to lessee, at end of tenancy, if all provisions are performed.”

In the opinion it is said: “In Ish v. Morgan, 48 Ark. 413, 415, 3 S. W. 440, 441, we said: ‘The agreement between the parties about the possession must determine the relation between them, and, though it consists of two separate and distinct stipulations, they are to be read together as one contract, ⅞ * ⅜ and that contract is competent evidence to establish or rebut the relationship of landlord and tenant. * * * If the contract shows that the defendant was in under an agreement to purchase, the idea of a tenancy was rebutted. ⅜ * * But if, on the other hand, the meaning of it is that he is to pay rent, or a compensation for the use of the land, then he was a tenant.’ ”

In Words and Phrases, Second Series, vol. 3, p. 11, it is said: “The relation of ‘landlord and tenant’ is that which subsists by virtue of a contract for the possession of lands at will, for a definite period, or for life. Foss v. Stanton, 57 A. 942, 76 Vt. 365. The relation of landlord and tenant arises under contract, express or implied, for possession of lands or tenements in consideration of certain rent to be paid therefor.”

A further contention of appellants is to the effect that the cotton purchased from defendant Terry during the crop year of 1926 was in the open market and for the account of the Ehome Milling Company, a corporation which at the time was engaged in ginning and buying cotton, and that the Eenshaws had no interest in the cotton and did not dispose of it. In support of this contention, the case of Johnson v. Armstrong, 83 Tex. 325, 18 S. W. 594, 29 Am. St. Rep. 648, is cited. There was testimony to the effect that L. W. and Wayne Eenshaw were the parties actually in charge of the business of buying cotton for the ginning company, acting under the supervision of the general manager. There was also testimony in behalf of appellants to the effect that the greater part of the cotton purchased by them came to the market in names other than that of Mr. Terry. They knew, hpwever, of plaintiff’s levy upon the one bale on September 13, 1926, and of plaintiff’s assertion of the landlord’s lien and knew that the cotton purchased by them came from the farm cultivated by Terry, and acknowledged' that they suspected that the cotton which came in the names of other parties was the Terry cotton. They also acknowledged that part of the proceeds of'the cotton purchased by them was applied in discharge of individual indebtedness. So that, we think the evidence amply supports the trial court’s finding, to the effect that the cotton was purchased and converted by appellants Eenshaw. At all events, we think we must hold that appellants are personally responsible for the cotton purchased and converted by them, and upon which the plaintiff had a landlord’s lien.

The case of Johnson v. Armstrong & Messer, 83 Tex. 325, 18 S. W. 594, 29 Am. St. Rep. 648, cited in behalf of appellant, is one in which the agent for a corporation made a contract in its behalf to prepare plans and specifications for a college building. Tire ap-pellees, Armstrong and Messer, vyho prepared the plans and specifications, knew that they were for a school, college, or university building. Under such circumstances, the court said that: “If Johnson had a principal capable of being bound, and whom he had authority to bind by the contract, and if the contract was about the business of the principal and such facts were known to the plaintiffs, then, as Johnson did not expressly bind himself, it must be held to be the contract and debt of his principal, for which he is not responsible.”

The case before us, however, is one sounding in tort. If the findings are to be credited, appellants knew the cotton to have been cultivated upon the Terry farm, and knew, or certainly had every reason to believe, that the plaintiff, Sullivan, had a lien thereon for the payment of his rent, and with knowledge thereof purchased and converted the cotton, and as such wrongdoers they were personally liable, regardless of their relation to the ginning company. In 38 Cyc. p. 2056, the rule is thus stated: “That defendant was acting as agent or servant of another when he wrongfully detained or disposed of plaintiff’s goods is no defense, and it is immaterial whether he did so in ignorance of the owner’s rights or in obedience to the command of his master or principal.”

Appellants in their original brief, and in a supplemental brief later filed, insistently urge that the court -erred in giving the following charge to the jury: “Gentlemen of the Jury: In connection with such issues in the charge as inquire or mention as to any alleged waiver of a lien by plaintiff on any crop' or crops in question, you are instructed that a waiver is defined in law to be an intentional relinquishment of a known right; and yon will bear this definition in mind in answering all such issues as involve that matter.”

It is insisted that: “The charge as submitted only partially defined the -word in that it failed to tell the jury that a ‘waiver’ might be effected by acts and conduct of the plaintiff, as -well as the intentional relinquishment of a known right.”

We think we must overrule the contention thus presented. It is true there was evidence introduced to the effect that during the years precediig 1926 and a part of that year perhaps, the plaintiff freely permitted Terry to so market and deal with his cotton as to reasonably cause a purchaser to believe that no lien was asserted upon the cotton purchased. But there was no plea of estoppel on the part of appellants, and the court in submitting the issues of liability for the rents for the years 1925 and 1926, preceding the 13th day of September, 1926, instructed the jury with all the fullness that appellant insists upon, as will be,seen by the following quotation submitted in connection with issue No. 2: “Were the manner and method of the plaintiff 6. W. Sullivan, and the defendant E. M. Terry, in reference to the hauling to the gin and market, and the marketing of the crops raised on the premises of plaintiff by said Terry and the conduct of plaintiff in reference thereto, and the facts and circumstances in evidence, such as to reasonably indicate to the defendants Joe Wren and L. W. and Wayne Renshaw and induce them reasonably to believe that plaintiff had authorized said Ruther Terry to sell said crop for the year 1925, and that he intended to waive his landlord’s lien on said crop?”

A like charge was given relating to the purchase of any part of the crop of 1926 prior to plaintiff’s levy of a distress warrant in that year. These issues were answered in favor of appellants. The same clause was also inserted in submitting the issue relating to the pmrchase of the cotton after the levy of the distress warrant, which the jury answered in the negative. It is thus seen that the issue of waiver or estoppel, whichever it may be termed, raised by the evidence, was submitted in terms as favorable to appellants as they had any right to insist upon; this being particularly true in view of the finding undoubtedly supported by the evidence that appellants knew that the plaintiff had not waived any lien upon that part of the crop of 1926 converted after the 13th day of September, 1926.

We find nothing else requiring notice, and conclude that the judgment as against appellants L. W. and Wayne Renshaw and J. W. Terry should be affirmed; but in so far as it was in favor of the defendants Joe Wren and R. J. Anderson, it is left undisturbed.


author: CONNER, C. J.

text:
    WICHITA SCHOOL SUPPLY CO. v. MUTSCHLER BROS. CO.
    (No. 12073.)
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 20, 1929.
    Rehearing Denied March 2, 1929.
    Smoot & Smoot, of Wichita Falls, for appellants.
    Bonner, Bonner & Fryer, of Wichita Falls, for appellee.
   CONNER, C. J.

The appellee, Mutsch-ler Bros. Company, a foreign corporation, doing business in the county o-f Elkhart, Indiana, instituted this suit against the Wichita School’Supply Company, and others not necessary to. name, on a trade acceptance given by the Wichita School Supply Company, on July 20, 1926, for the sum of $572. The instrument shows on its face that it was given for goods purchased from the plaintiff.

The defendant in the lower court,' appellant here, duly pleaded as a defense a failure of consideration. It was alleged, in substance, that the obligation was given and the debt incurred for certain furniture for the Archer county, Tex., courthouse, which was warranted to be of fumed oak finish, and to agree to finish, 00101-, and quality with a sample furnished ; that it was purchased to match the remainder of such furnishings of the eourt-house, as was well known to plaintiff ; that it was purchased as a “show job” for defendant to be used as a sample to show to prospective customers, also known to plaintiff; that plaintiff had failed to supply furniture of the kind, quality, and finish ordered, and that the furniture, ordered by defendant did not agree with the sample as warranted; that it was of a finish and color of such inferior workmanship that it was useless to the defendant, and the same was tendered back to plaintiff, etc.

The plaintiff answered by a general demurrer and a general denial and specially to the effect that the trade acceptance upon which the suit was founded had been executed more than five months after the receipt by defendant of the goods, and more than five months after the defendant had made delivery thereof to the customer, Archer county, and had received the full consideration from said county therefor; that defendant had ample opportunity, before executing the trade acceptance, to inspect said goods and ascertain whether or not they were of the kind, color, and finish plaintiff had agreed to furnish ; that, despite this fact, defendant made no complaint to plaintiff or its agent until the filing of its answer in this case; that the execution of said trade acceptance by defendant constituted a ratification of the contract of sale of said goods, and defendants “thereby have estopped themselves from pleading or proving failure of the consideration.” The plaintiffs further pleaded by wqy of a trial amendment the facts set forth in their plea of estoppel, and urged that thereby the defendant had waived the defects set up by it.

After the introduction of the testimony, the court gave to the jury which had been impaneled to try the case a peremptory instruction to find for the plaintiff, and, on a verdict in compliance with said instruction, entered judgment for the plaintiff as prayed for, to all of which the defendant excepted and duly prosecutes this appeal.

The plaintiff introduced the trade acceptance declared upon, which was in form and legal effect as alleged.

The statement of facts has been carefully exiynined, and the evidence in behalf of appellant was unquestionably to the effect that appellant was engaged in the business of furnishing courthouses, banks, schools, churches, city auditoriums, and other establishments of similar character with furniture over the states of Texas and Oklahoma, and that during the course of its business it contracted with Archer county to furnish its courthouse; that in fulfilling the contract appellant ordered from a number of manufacturers, including the appellee, the order froni appellee being for certain tables for which appellee had charged the sum covered by the acceptance; that the furniture was ordered with the intention on appellant’s part of making it a show job; that the furniture ordered of ap-pellee was to accord with a sample furnished; that, upon the receipt of the furniture, appellant’s “set up man” uncrated it and placed it in the Archer county courthouse, where it has remained to the time of the trial; that the furniture in fact did not match the other furnishings in the courthouse, did not have a fumed oak finish, or agree in color with the sample or other furniture, and later became rough on the surface, cracked, and showed faults of an improper finish.

Mr. G. W. Smith, one of the defendants, testified, among other things, that:

“In connection with our work, we have occasion to have sample jobs in different portions of our territory to show our customers; we do, because we have many parties that come in from different parts of the state, and from different states to see us to get our figures, and also to see our work, and judge our ability to carry out plans and specifications for equipping court houses, more especially, that than anything else. They are most careful that all of the wood work be matched, and the finishings match, and we always use our best ability to make that so. Our office is here in Wichita Falls, and this being the trade center you might say, for our trade, and this job being near Wichita Falls, we were in hopes, and in fact, did make that a point, in order to get that business, we made a special effort to absolutely fulfill the plans and specifications and have everything to match. We intended to use that as a sample job. * * * It is not practical in order to fill the order to buy all furniture from the same people. We get it all to match by furnishing wood blocks the color of the wood work of the building that the furniture was to go in. In order to get the proper appearance throughout it is necessary that the different articles of furniture shipped from different factories should be of substantially the same color and finish; and it is necessary according to our bid we, .you see, guarantee it to be that. I ordered the tables from Mutsch-ler Bros, at Napanee, Indiana, the plaintiffs in this ease. We gave them instructions with reference to how they should construct and finish the furniture the tables — we certainly did, gave them the same instructions that we had, the same that we gave to the Stafford people who were to furnish the Judge’s bench.”

It appears that on December 9, 1925, appellant wrote the appellee company requesting shipments of tables ordered at their earliest convenience, and stated that “we are more than anxious to have them installed in the Archer County court house so we can show them to other county commissioners who are building court houses in the Wichita Falls trade territory.”

On the 8th day of February, 1926, the commissioners’ court of Archer county issued its warrant in favor of appellant for the sum of $6,030.42 “for furniture.” This warrant was duly paid to appellant and covered the full contract price for the furnishing of the Archer county courthouse, and the evidence is silent as to what, if any, complaint has ever been made by the county or any of its officers of the defects in the tables and other furniture, as pointed out by appellant.

On February 24, 1926, appellant wrote the appellee company, complaining of the finish and color of the tables received, and stated:

“We want this to be a show job and would like to hear from you at your earliest convenience telling us just what to do with the tables. As a suggestion we believe the cheapest way to refinish them would be to send them back to the factory as it is hardly possible to remove varnish down here and refinish so it will look good.
“Trusting we shall hear from you at once, as we have several court house jobs coming up during the next months, and would like to have this job so we could show it to our buyers when they come to Wichita Falls to see our lines.”

On November 19, 1926, appellant wrote to appellee, in reply to a letter suggesting a discount, that:

“We are not wanting to compromise. You have your choice of furnishing the table in the color that the other factories made in following our instructions or pay us the difference. When we put out a bunch of equipment, we want it to look at least respectful, and we can’t say that the color of the tables are satisfactory. If you are willing to deduct the freight charges on the shipment of the tables to us, and return to the factory, we are ready to make settlement, or we are ready to make settlement when the tables are shipped freight prepaid, in the correct color and finish. Upon receipt of the tables we ordered we will return the tables we now have.”

On March 14, 1927, appellant wrote to ap-pellee the following letter, omitting formal parts:

“Your representative was here last week and went out to inspect the furniture installed in the Archer County court house and stated to us on his return that he found our contention that it did not conform to sample or match up with the remainder of the furniture was correct.
“We could not talk cash settlement by knocking off part of the purchase price, as we did not think that was treating Archer County right, and this was put in as a sample job and our competitors are using it against us. We have already lost business through the fact that it did not match up, and we feel that it would injure both you and ourselves to have it said that we fell short of requirements and were forced to make a refund on that account. These people are our .friends and customers, and we feel personally obligated to see that they have properly matched furniture to go into their new court house, and we certainly do not want competitors pointing out that we are so careless with the orders intrusted to us that we do not even match up the furniture. We are therefore writing to ask that you replace this furniture with properly matched and finished furniture in , accordance with your sales contract. Just as soon as this is done, we will pay for it in full; and to insure you that this will be done, we will furnish you an acceptance surety bond. If you can not do this, you are advised that the furniture is subject to your orders and we are placing another order with other parties for furniture to replace it. We ask an immediate reply.”

As we view this case, the issue of estop-pel, tendered by appellee, as distinguished from the plea of waiver, is not presented by the evidence. We think the controlling question presented for our consideration is whether the evidence shows that appellant, as a matter of law, waived its right to set up the plaintiff’s breach of contract, as well as a breach of implied warranty in failing to supply the furniture as ordered. As we view the evidence, we think the court erred in giving the peremptory instruction and in refusing a special issue requested by appellant submitting the question of waiver to the jury. There seems to be no dispute of the fact that the furniture was ordered from a sample with instructions that it should match the other furniture in the courthouse; that appellee-was fully informed that one qf the purposes in view on the part of appellant was that it should be a show job to further the interests of its business, which was supplying furniture of the kind to' others in the trade territory. It also seems to be undisputed that the furniture-as actually delivered by appellee did not match in color or finish as ordered; all of which appellee was from time to time notified and requested to remedy. The facts most strongly relied upon as establishing a waiver on the part of appellant are that the furniture was delivered to the county with no protest on the part of the county, and that the county had subsequently paid to appellant the full contract price of the furniture. One of the witnesses for appellant, however, testified that upon receipt of the tables they were merely set up in the courthouse as the most convenient place. We find no evidence that the county authorities after an examination expressed themselves as entirely satisfied, but, even though the county may have been satisfied, and willing to pay for the furniture actually set up, one of the purposes of appellants, and an important one, perhaps, was that its-contract with the county should be, as stated, a “show 'job,” calculated to promote an increase in the business. The fact of the county’s payment, so strongly relied upon, is not we think, conclusive. The evidence shows that appellant, in entering into the contract with the county, in express terms warranted that the finishings should match and be of the quality and finish as ordered, and there is no express testimony to the effect that the county may not still be relying upon appellant’s warranty. The charge for the tables furnished by appellee was but a small part of the.entire bill, and it possibly might be inferred by a jury that the county paid the entire sum, trusting that appellant would be successful in its efforts to remedy the apparent defects. We are of the further opinion that the fact that appellant forwarded to appellee its trade acceptance does not, under all the circumstances, constitute conclusive evidence that appellant had waived the defects complained of. The letter, written to the appellee company at and about the time the trade acceptance was forwarded, reiterated appellant’s objections, and indicated, as a jury might reasonably infer, a willingness to trust appellee to yet make good its implied warranty to supply furniture as ordered.

In this state the rule is well settled that, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusions to be drawn from it. See Lee v. Ry. Co., 89 Tex. 588, 86 S. W. 63; Williams v. Daniels (Tex. Civ. App.) 4 S.W.(2d) 190. It is also well established that the question of waiver is mainly a question of intention which lies at the foundation of the doctrine. It is stated in 40 Cyc. p. 261, that;

“Waiver must be manifest in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is es-topped thereby. Since the intent is an operation of the mind it should be proven and found as a fact, and is rarely to be inferred as a matter of law. An intention to make the waiver claimed should clearly be made to appear by the evidence; and the best evidence of intention is to be found in the language used by the parties. The true inquiry is what was said or written, and whether what was said indicated the alleged intention.”

On page 269 the author again says;

“The burden is upon the party claiming the waiver to prove it by such evidence as does not leave the matter doubtful or uncertain but he is only required to prove it by the preponderance of evidence, as in other civil actions.”

In the case of Aultman & Taylor Co. v. Hefner, 67 Tex. 54, 2 S. W. 861, a purchase money note was executed for certain machinery sold on a warranty. In a suit on the note, the purchaser sought to defend on the grounds that the machinery was not as warranted, and there was a failure of consideration, and the seller replied that the receiving and retaining of the property and the execution of the notes therefor waived the warranty. In passing on the question, the Supreme Court said:

“Under the facts to which we have referred there can be no pretense that Hefner [buyer! waived the warranty by remaining in possession of the property, and executing notes for it when he knew it was defective.”

In the case of Campion v. Marston, 99 Me. 410, 59 A. 548, the Supreme Court of Maine held that the fact that a person inspected and received an article would not as a matter of law be conclusive evidence that they waived any objection to it, but would merely be evidence of that fact to be taken for what it was worth. In the course of its opinion that court said:

“These circumstances may be evidence, and even strong evidence, that they accepted the ice bargained for, and in full satisfaction of the contract of sale, including all that good faith demanded of the plaintiff; but the circumstances do not in’ themselves constitute, as a matter of law, an acceptance in satisfaction or waiver of the plaintiff’s promise that the ice was merchantable. * * * Whether they did in fact take the ice as full satisfaction of the contract of sale, and thus release the plaintiff from that obligation, was a question of fact for the jury.”

See, also, Morse v. Moore, 83 Me. 473, 22 A. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783.

In this case we think the fact that the furniture was received, that the county paid appellant the contract price therefor, that thus far the county dotes not appear to have complained, and that appellant gave its trade acceptance, are all facts tending to show the waiver claimed, but we do not think they are conclusive. Our statutes in express terms give the obligor in a written instrument the right to plead failure of consideration, and this has been held not to vary the terms of a positive written obligation to pay. Martin v. Cummer Mfg. Co. (Tex. Com. App.) 272 S. W. 771; Red Oak Electric Gin Co. v. Waxahachie National Bank (Tex. Civ. App.) 279 S. W. 884. Such right is not lost or waived by retention of the article. Dunlap Hdw. Co. v. Elmberg (Tex. Civ. App.) 252 S. W. 1098, affirmed in (Tex. Com. App.) 267 S. W. 258.

We conclude finally that, as stated, the court erred in giving a peremptory instruction and in refusing to submit the issues to the jury. The judgment will accordingly be reversed, and the cause remanded


author: HIGHTOWER, C. J.

text:
    TEMPLE LUMBER CO. v. ARNOLD et al.
    (No. 1757.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 12, 1929.
    Rehearing Denied March 15, 1929.
    R. E. Minton, of Lufkin, for appellant.
    ■ Jas. G. Barker, of Hemphill, and Jno. Hancock, of Fort Worth, for appellees.
   HIGHTOWER, C. J.

In this cause appel-lees recovered against appellant the title to the timber upon the land described in their petition and $325 as damages for a small quantity of the timber wrongfully cut and removed. We have no statement of facts, but the trial court filed the following conclusions of fact and law in support of its judgment :

“Findings of Fact.
“1. Plaintiffs conveyed to W. F. Goodrich by deed dated July 30, 1920, the timber in controversy. It also stipulated in said deed that the grantee should have six (6) years from the date thereof within which to cut and remove said timber. It was further stipulated in said deed:
“ ‘The grantors herein hereby further give to the grantee his heirs and assigns, the right and option of extending such time for removal from year to year after the expiration of six years hereinabove given and granted for cutting and-removing said timber by payment of fifty cents (50⅜) per acre for each year such extension is so desired, sucb right and option to be for a period of not exceeding four years from and after the date of the expiration of the six years time hereinabove given and granted for cutting and removing said timber from said land. Payments for swoh extension as above provided, to be made on or before the 1st day of July, of each and every year such extension is so- desired, and payments may be made by • the 'grantee, his heirs or assigns, by depositing the amount due for such extension for each year in the First National Bank of Hemphill, Texas, or the State Guaranty Bank of Hemphill, Texas, to the credit of Grantors, their heirs or assigns.’
“2. Goodrich conveyed said timber to defendant, Temple Lumber Company, long prior to the expiration of said six year period.
“3. Prior to the expiration of said six year period Temple Lumber Company did not cut and remove any portion of said timber.
“4. Prior to the expiration of said six year period Temple Lumber Company did not elect to exercise its option to extend the time for the cutting and removing of said timber, and did not give plaintiffs any notice of such election and did not on or prior to the expiration of said six year period pay to plaintiffs, or deposit to their account in the Bank mentioned, the 50 cents per acre for an extension of time.
“5. About thirty (30) days, or more, after the expiration of said six year period Temple Lumber Company informed Plaintiffs that it had failed to exercise its option and to make said payments,-and asked plaintiffs if they would then accept said payment for said extension, which plaintiffs refused. Since then, and after the filing of this suit, Temple Lumber Company tendered to plaintiffs said 50⅜ per acre for an extension of said time for said cutting and removing said timber, and said tender was by plaintiffs refused.
“6. During the month of December, 1926, Temple Lumber Company went upon the said land and cut and removed sixty five thousand (65000.) feet of timber and appropriated same to its own use and benefit.
“7. The stumpage value of s¿id timber was $5.00 per one thousand feet.
“Conclusions of Law.
“I conclude, as a matter of law, as follows:
“1. The deed from plaintiffs to Goodrich conveying the timber in controversy, which afterwards passed to Temple Lumber Company, conveyed only such timber as was cut and removed within the said six year period, and that the stipulation for an extension of time for said cutting was an option in favor of Temple, and should be strictly construed against Temple Lumber Company; that when Temple Lumber Company failed to exercise said option by an election and payment as provided, it forfeited all of its right and title in and to said timber and same reverted to plaintiffs. '
“2. That the cutting of the said 65000 feet of timber in December, 1926, by Temple Lumber Company was a trespass, and by reason thereof it became liable to plaintiffs for tho value thereof in the sum of $5.00 per 1000 feet.
“3. Plaintiffs showed a common source of title as against defendant and is entitled to recover the timber sued for.
“Therefore, I conclude that all of the facts and the law are in favor of plaintiffs and that they should recover said timber and damages in the sum of Three Hundred Twenty five ($325.00) Dollars, together with the costs of this suit.”
“Supplemental Findings of Fact.
“1. That on July 28,1926, defendant’s agent made inquiry of plaintiff, Clyde Fuller, to ascertain if they would then accept the rentals provided for in the deed and was advised that they would not accept them.
“2. That plaintiffs never made any demand of the defendant for the rentals, although it has at all times been ready, willing and able to pay them.
“4. That defendant claimed the timber by deeds outside of and not connected with common source.
“5_ ⅜ * *
“6. That the plaintiffs received $9666.00 in cash for the timber described in the deed to W. F. Goodrich.
“7. That .Plaintiffs’ deed conveying the timber to W. F. Goodrich contained, in addition to the clause quoted in the finding number 1, already made, a grant of ingress and egress to remove said timber, and the following clause:
“ ‘To have and to hold the above described timber, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said W. F. Goodrich, his heirs and assigns, for and during the period of time hereinabove given and granted for cutting and removing same from said lands.’
“8. That prior to the expiration of said six year period Temple Lumber Company did not cut and remove any portion of said timber other than a few trees that were blown down by storms.
“The above findings are from the undisputed evidence, but I regard them as being immaterial.”

The conclusion that appellants were holding under appellees made appellees the common source of title, relieving them of the burden of deraigning title from and under the original grantees. Proof of common source establishes a prima facie case. Rice v. Ry., 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Rep. 72; Ogden & Johnson, v. Bosse, 86 Tex. 346, 24 S. W. 798. This proof raises the presumption that common source owns the title of all previous owners. McBride v. Loomis (Tex. Com. App.) 212 S. W. 480. However, this presumption is not absolute and conclusive, but is subject to rebuttal. Authorities above cited; Campbell v. McLoughlin (Tex. Civ. App.) 270 S. W 257. The issue is one of burden of proof (Howard v. Masterson, 77 Tex. 41, 13 S. W. 635), and when established shifts the burden to the defendant to show a superior title under the common source, or to show that he holds under a superior title not •connected with the common source, or to show that the true title is outstanding, or to show prior possession under deeds not connected with the common source. The presumption that common source owned all titles relates to title, as distinguished from a mere claim. “Title” is thus defined by 38 C. J. 336: “In reference to property, that which constitutes a just cause of exclusive possession or which is the foundation of ownership of property.”

This “just cause of exclusive possession” is the issue established by proof of common source. Proof that third parties were ■claiming the land under deeds and transferred this claim to defendant, and that defendant was asserting an independent claim thereunder, without showing prior possession under such a claim, is not proof of title, and does not rebht plaintiff’s prima facie case under common source. If we are correct in what we have said — and we do not think the ■authorities can be otherwise construed — then appellant, by claiming under deeds outside of and not connected with the common source, did not make an issue against the common source title. We think proof of this claim without connecting it with the original grantee, or without showing prior possession thereunder, was merely proof of extraneous ■circumstances, with no legal effect. This conclusion is sustained by Foster v. Johnson, 89 Tex. 640, 36 S. W. 67. In that case defendant acquired deeds from third parties subsequent to the common source. It was said: “Johnson’s [defendant’s] evidence failed to connect him with the sovereignty of the soil, and for that reason failed to show that he had a superior title to that of Foster [plaintiff].” See, also, Smith v. Davis, 18 Tex. Civ. App. 563, 47 S. W. 101; Gordon v. Hall, 29 Tex. Civ. App. 230, 69 S. W. 219. It follows that the fact conclusion “that defendant claimed the timber by deeds outside of and not connected with the common source” would not destroy appellees’ prima facie case, and that appellant’s legal proposition: .“It being shown that defendant claimed title under more than one source, and plaintiffs having shown common source with only one of them, they failed to make a prima facie title and judgment should have been for defendant” — based thereon, Is not sound.

While not agreeing with appellant, we have been very much interested in its proposition and the review by its able counsel of the Texas authorities on the issue' of common source. We have given most careful consideration to this argument and to the authorities cited, but believe that they are in harmony with and are not against the conclusions we have expressed above. We quote as follows from appellees’ Brief distinguishing appellant’s authorities on their facts:

“Appellant is, in the main, relying upon the holding made in Story v. Bridwell (Tex. Civ. App.) 45 S. W. 847, by the Fort Worth Court, wherein it was said:
“ ‘Where the evidence, by whomsoever introduced, shows that the defendant claims under two or more titles, any one of which does not spring from the same source as plaintiffs’ title, it then devolves upon the plaintiffs to connect themselves with the state, or otherwise to show a superior title to that of defendant, from whatever source derived. Hendricks v. Huffmeyer, 90 Tex. 577, 40 S. W. 1; Starr v. Kennedy, 5 Tex. Civ. App. 502, 27 S. W. 26; Howard v. Masterson, 77 Tex. 41, 13 S. W. 635.'
“But when said language is considered in connection with the real holding in the case, it is pure obiter. The real holding made was that the deeds introduced failed to show just -what portion of the title the defendant held and claimed under the common source. In other words, the deed was made jointly by the common source and a third party, and no showing was made as to the interest conveyed by the common source, and what interest was conveyed by the third party. This is clearly shown by the authorities cited in support of the holding made. None of them make the holding herein above quoted, but do make the holding as to the joint interest in the common grantor and the third party, as above stated.
“The court then added another l-eason why, in its opinion, the plaintiff had failed to make a case. It said:
“ ‘And it makes no difference whether the title defendant claims under is good or not, if that title is not derived from the same source with that of plaintiffs, because possession with evidence of claim under any title not derived from the same source as the plaintiffs’ is sufficient to require plaintiffs to prove a superior title.’
“It is indicated in the above holding that a deed from a third party coupled with possession would be sufficient at least to meet the presumption of title under the common source, and require plaintiff to show title from the sovereignty of the soil. * * *
“Apxiellant also cites and relies upon the cases of Howard v. Masterson, 77 Tex. 41, 13 S. W. 635, Hendricks v. Huffmeyer, 90 Tex. 577, 40 S. W. 1, Sweeten v. Taylor (Tex. Civ. App.) 184 S. W. 693, and other eases belonging to said line, in support of its proposition that the deed to it from a third party not connected with the common source is sufficient to overcome the presumption of title in the common source. These cases do not support the contention of appellant. Said decisions turn upon the rule that a joint deed by the common source and another to the plaintiff, standing alone, is insufficient to show the portion of the title held under the common source. This rule is made clear by our Supreme Court in Hendricks v. Huffmeyer, supra, wherein it is said:
“ ‘But it was also held, in Howard v. Masterson, 77 Tex. 41, 13 S. W. 635, that the plaintiff there did not show a sufficient claim of common source on the part of the defendant, by exhibiting a sheriff’s deed, which purported to convey the interest of the plaintiff’s grantor and of another defendant in the execution in the land in controversy. The principle decided was that a grantee in a deed which purports to convey the interest of two or more persons in the land, but which does -not specify the particular interest of either, does not, by accepting the conveyance, admit a previous title to any specific interest in either the one or the other. At least in a voluntary conveyance by two grantors, the acceptance by the grantee is an admission that both had an interest, but, unless the specific interest intended to be conveyed is named or described, it is not such an assertion of title to any interest in either one of the parties as will enable the plaintiff to recover any definite interest, hy showing, in connection with the deed, a superior right to the interest of that grantor whose title he claims to own. That principle applies to this case.’
“This rule is recognized in Gilmer v. Beauchamp, 40 Tex. Civ. App. 125, 87 S. W. 907, by the Galveston Court, wherein the facts were, the joint grantors owned the property equally, and it was, therefore, clearly shown what interest was acquired from the common source. The court said, ‘The question is one of burden of proof only.’ ”

As appellees have established common source, the issue becomes one of superiority of title thereunder. This requires a construction of appellees’ deed to Goodrich. Under the rule announced by Houston Oil Co. v. Boykin, 109 Tex. 276, 206 S. W. 815; Houston Oil Co. v. Hamilton, 109 Tex. 270, 206 S. W. 817; Chapman v. Dearman, 111 Tex. 132, 229 S. W. 1112; Houston Oil Co. v. Bunn (Tex. Com. App.) 256 S. W. 259, a sale of timber as personalty, that is, where it appears from the deed that the timber is sold for removal or where a time limit is fixed, passes title only to so much of the timber as is cut and removed within a reasonable time, or within the time fixed by the deed. We think the terms of appellees’ deed to Goodrich bring it clearly within this rule; and that Goodrich was given no greater interest in the timber than the r-ight to acquire title by cutting and removing it from the described premises. See, also, Texas Creosoting Co. v. Hartburg Lumber Co. (Tex. Civ. App.) 298 S. W. 645.

This deed gave Goodrich “the right and option of extending such time for removal.” This right of extension was nothing more than an option to be exercised by him, whereby he might extend his rights in the timber as on the conditions of the original deed. Neither under the original deed nor under the extension period was Goodrich given title to the timber standing, but only the right to acquire title by cutting and removing it. Killough v. Lee, 2 Tex. Civ. App. 260, 21 S. W. 970; Davis v. Conn (Tex. Civ. App.) 161 S. W. 39; Humble Oil & Ref. Co. v. Davis (Tex. Com. App.) 296 S. W. 285.

Since appellant did not acquire title to the timber by cutting and removing it within the six years granted by the deed, the right to cut and remove was lost, unless duly extended under the option privilege. This right was purely optional with appellant. Ap-pellees had no power to compel appellant to accept this option. Under these conditions, to acquire this additional time, appellant was required to comply strictly with the conditions of his option. It is said of such an option by 2 Williston on Contracts, 1334: “Time is of the essence in equity in a contract of option.” Mr. Chief Justice Gaines, speaking for the Supreme Court in Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596, said: “When the transaction is in the nature of a unilateral contract, — where a party is given an option to acquire a right by doing a certain thing within a specified time, — it is held that time is essential, and that in order to secure the right he must comply within the specified period. This is settled law.” In Humble Oil & Refining Co. v. Davis, 296 S. W. 285, the Commission of Appeals thus defines the effect of an option to extend the time by payment of an independent consideration: “This clause was not a forfeiture provision. It was a limitation upon the term or period of the grant, and, upon the failure to drill or pay as aforesaid, the estate created by the lease ceased and reverted to the lessors.” Killough v. Lee, supra, is most interestingly in point. That case involved the option to purchase a lot in the city of Galveston. The holder of the option within the time granted him gave notice that he would buy the lot, but within this time did not pay the purchase price. The court said: “The option which appellant had was to buy within six days. Therefore, whatever was requisite in order to buy was, by the express terms of the writing, required to be done within that time, and was therefore essential to invest appellant with the right to a conveyance of the land. Consequently, unless it can be said that notice to the agent of his acceptance of the proposed trade constituted a purchase of the property by appellant, he must fail. In our opinion this conclusion is forbidden by the terms of the contract, which prescribe in what manner appellant may buy the land, viz., by the payment of $12,000 cash.” Again quoting from Williston on Contracts, par. 894: “Where an option is given in a contract to one party or the other, he must give notice of the exercise of the option.” It follows that appellant’s rights in the timber ceased on expiration of the six-year period, unless it strictly complied With the terms of the option to extend. That is to say, on or before July 1st of the extension period appellant was required to pay or offer to pay the extension price.

What we have said denies appellant’s propositions by which it would construe this deed, relieving it of divestiture of title, which propositions are as follows:

“(a) Mere failure to pay the rentals was no more than the breach of an independent covenant which did not go to the whole consideration of the contract, but was subordinate to its main purpose and did not constitute a breach of the entire contract or warrant its rescission by the injured party. Having received the main consideration, they were bound to perform their part and their remedy for breach of this part was a suit for breach and damages.
“(b) The ‘right and option’ of four years extension was a mere covenant annexed to an executed contract and there were no terms of forfeiture contained in it. Courts do not favor forfeitures and the terms of the contract will be strictly construed to avoid them.
“(c) A promise on the part of the grantee to do something in the future is usually con'strued as a covenant upon which the grantor may base a suit, but not a condition subsequent upon breach of which a right to defeat the conveyance may arise.
“(d) Payment of the rentals was not the essence of the contract.
“(e) Since the terms of the deed did not dispense with the necessity of demand by appel-lees, demand should have been made of Appellant at its place of business during office hours on the very last day of the term to save the forfeiture.”

The facts found by the court make appellant’s rights depend upon the date of the Goodrich deed. If this date was July 30, 1920, as expressly found, we think the facts and circumstances recited by the court constituted a bona fide effort on appellant’s part to comply with the option conditions, which were hot defeated by appellees’ refusal to accept the extension price. If the deed was dated July 30, 1920, then before the expiration of the six-year period, to wit, on the 28th day of July, appellant made a bona fide effort, to pay the extension price. As appellees refused in positive terms to accept this tender, appellant was not required to do the foolish thing of making an actual tender of the consideration. His offer to pay, under the circumstances, fully complied with the conditions of the option. Again, by the terms of the deed, appellant was given until the 1st day of July of the extension period in which to make tender. Appellees had the right to make such a contract, and it must be enforced against them. If the deed was, in fact, dated the 30th day of July, 1920, the six years would not expire until the 30th day of July, 1926, and by their contract appellees had granted appellant until July 1, 1927, in which to pay the price of the extension.

Apart from the offer to pay on July 28,1926, the circumstances of its dealing with the property subsequent to that date saved its rights under the option, provided the deed was dated July 30th.

Appellees, do not agree with the construction we have given of the facts and circumstances in relation to the option, but if we are correct in our conclusion, they say the date of the deed as found by the court wás erroneous ; that in fact the deed was dated June 30, 1920, and in support of this contention, after submission of this ease, appellees filed with us a certified copy of the Goodrich deed, supported by affidavits, showing its date to be June 30, 1920. Having no statement of facts and no assignment against the trial court’s conclusions of fact, they recognize that we have no power to correct this alleged error, but ask us to reverse the case, if necessary, in order to avoid a miscarriage of justice. As an additional ground of relief, they say that a clear conflict exists between the date of the deed and the other determinative issues as found by the trial court. We think that this conflict exists. It was expressly found that appellant did not elect to exercise its option to extend the time for cutting and removing said timber, and did not give appellees any notice of such election, and did not on or prior to the expiration of said ’six-year period pay to appellees or deposit to their account in the bank mentioned the 50 cents per acre for an extension of time. It was further found that 30 days or more after the expiration of said six-year period appellant informed appellees that it had failed to exercise its option and to make said payments, and asked appellees if they would then accept said payments for said extension, which appellees refused. It was further found that appellant made this request on the 28th day of July, 1926. Now if the deed was dated July 30th, this request was made before the expiration of the six-year period; but if it was made 30 days after the expiration of the six-year period, then the deed could not have been dated on July 30th, but its date must have been 30 days prior thereto. A conflict in the determinative issues as found by the trial court constitutes fundamental error necessitating a reversal, to the same effect as a conflict in the determinative issues as found by a jury’s verdict. This contraction of the conclusions of fact necessitates a reversal and relieves us of the burden of determining the effect of the certified copy of the Goodrich deed and the affidavits attached thereto.

Reversed and remanded.

On Motion for Rehearing.

Counsel for appellant, in his motion for rehearing, in this cause, earnestly insists ■ that this court was in error in practically all of the questions that we decided, and again insists that we should reverse and render the judgment in this case in appellant’s favor. We have given to the motion for rehearing very careful consideration in view of the earnestness of counsel’s insistence, and the importance of the questions involved, but have again concluded that our original disposition of this appeal was correct and must, therefore, overrule appellant’s motion for rehearing.

We find in the motion for rehearing this statement made by counsel for appellant: “The court should not have considered for any purpose the instrument filed by appellees on November 2, 1928, after the cause had been submitted on October 25, 1928.”

The instrument referred to is the original deed to Goodrich mentioned in our original opinion in this case. While we did not state expressly in the original opinion that we had not considered this instrument for any purpose in making our disposition of this matter, we think that what we said in that connection clearly implied that we had not considered this instrument for any purpose in reaching our disposition of this appeal. But since counsel for appellant seems to be. of the opinion that we did consider this Goodrich deed for some purpose, we desire to here now expressly state that we did not consider this instrument for any purpose whatever, and that it really has no place in this record.

Motion for rehearing overruled.