author: COMBS, Justice.

text:
    FRY v. SPENCER.
    No. 3672.
    Court of Civil Appeals of Texas. Beaumont.
    June 7, 1940.
    Enoch G. Fletcher, of Grand Saline, and Pollard & Lawrence and William S. Reeves, all of Tyler, for appellant.
    Gordon R. Wynne and Wynne & Wynne, all of Wills Point, for appellee.
   COMBS, Justice.

This suit was brought by appellee, Spencer, as plaintiff, against appellant, Fry, as defendant, for breach of a written lease contract, by virtue of which the plaintiff leased to the defendant a picture show known as the Palace Theatre in the town of Grand Saline, Texas, for a term of ten years, beginning January 1, 1936, and ending December 31, 1945. The lease contract contained the following option: “It is hereby further agreed by all parties, that the second party is to have the option and privilege of cancelling this contract at the expiration of two years from January 1st, 1936, or any time thereafter upon the written notice served upon first party six months in advance and prior to the date of cancellation.” After the expiration of the two. years, the defendant gave notice and exercised his option of cancellation as provided in the above quoted stipulation. He refused to pay the monthly rentals for the last twenty weeks prior to the termination of the lease amounting to $500, contending that the payment made to the plaintiff at the time the contract was executed, should be applied to the payment of said rentals. The.provision of the contract relied on by the defendant reads as follows: “Party of the second part (defendant Fry) has this day paid to the party of the first part (plaintiff Spencer) $1000.00 (one thousand dollars) cash which amount is hereby fully acknowledged by first party, said one thousand dollars to be applied on the rental for said equipment to include the first and last twenty weeks of this contract, as a further consideration second party agrees to pay first party a further rental of said equipment and premises the sum of twenty five dollars per week, payable weekly in advance to be deposited to the credit of W. H. Spencer, in the-State Natl. Bank of Grand Saline, Texas, said twenty five dollar weekly payments tó begin May 20th, 1936 and to continue to be paid, as above set out the first of each week in advance each and every week until this contract is terminated.” The plaintiff contended in the trial court, and contends here, that the payment of the $1,000 in accordance with the above quoted stipulation was advance rentals, and the stipulation that $500 thereof was for rentals for the “last twenty weeks of this contract” was intended to apply to the last twenty weeks of the ten year period, and that the defendant is not entitled to have it credited to the last twenty weeks of the shorter period resulting from his exercise of the option to terminate the contract sooner. There were several other issues in the case, but all of them have gone out by jury finding or otherwise, except the question of law arising on the interpretation of the contract as to whether defendant is entitled to claim the benefit of the advance payment of $500 by having it credited to rentals. The trial court held that the defendant was not entitled to credit, and accordingly entered judgment in favor of plaintiff, and against the defendant, for $500 rentals, and also for an additional item of $300, of which no complaint is made here.

In contending that the defendant is not entitled to credit for the $500 advance payment, plaintiff relies chiefly on the case of Smith v. J. Weingarten, Inc., Tex.Civ.App., 120 S.W.2d 878, writ dismissed, wherein this court held that an advance payment of rentals could not be recovered back .by the lessee upon termination of the lease by total destruction of the premises by fire. The holding of this court in the Weingarten case was based upon a construction of the contract therein involved. There the contingency of loss by fire was an event beyond the control of either party and obviously might result in the loss of rentals to the lessor for sometime. This court construed the contract for the'payment of advance rent to imply an intent of the parties, that the risk from premature termination of the lease by fire should rest upon the lessee. In this connection, see note On that case in 17 Texas Law Review, page 500. This court thought and so held that the contract as a whole evidenced .such intent when construed in the light of the common law rule applicable to such cases. But in the case before us we do not think that such intent should be read into the contract. Here we have a different contract — one which secured to the lessee an absolute option to' terminate the lease after two years. There was nothing in the option agreement nor in the contract as a whole, stipulating, nor from which it can be reasonably inferred, that the $500 advance payment was to be forfeited to the’ lessor in the event the lessee should exercise the option. Yet, appellee’s construction of the contract would impose that penalty upon the appellant. We think a more reasonable construction of the contract is that it evidenced an intention that the “last twenty weeks of this contract”, to which the $500 was to apply ás rentals, meant the last twenty weeks of the ten year term, or any shorter term which might result from the lessee exercising his option. In other'words, the ten year term mentioned was subject to being shortened at the election of the lessee. This stipulation for shortening the term of the lease was part of “this contract”, and the parties must have so understood. Yet they did not specify forfeiture of the $500 as liquidated damages in the event lessee exercised the option. Instead a provision requiring the lessee to give six months notice of his intention to terminate the lease was incorporated. By that stipulation the lessor protected himself against loss of rental from termination of the lease. It would be unreasonable to read into the contract an intent to provide liquidated damages also.

The principle of common law applied by this court in the Weingarten case is rather severe, and should not be applied except where the contract clearly calls for its application. It is not our thought that it should be extended any farther than the application we gave it in that case.

The judgment of the trial court will be reformed by reducing the judgment of the trial court from the principal sum of $800 to $300, thereby allowing the appellant credit for his $500 advance payment. As so reformed, the-judgment of the trial court is affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    HUELSEBUSCH et al. v. ROENSCH et ux.
    No. 8946, and Motion No. 9415.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1940.
    On Rehearing June 12, 1940.
    Rehearing Denied June 26, 1940.

      Theo W. Lueders and John A. Kerr, Jr., both of LaGrange, for plaintiffs in error.
    Victor Gleckler, of Austin, for defendants in error.
   BAUGH, Justice.

The parties will be designated as appellants and appellees. The appellees were plaintiffs below; and the appellants were defendants.

The suit involved the estate of Henry Huelsebusch, deceased. Subsequent to Henry’s death, his surviving widow married C. A. Roensch, who brought this suit in her behalf, against the brothers and sisters of Henry, to recover from them $1,750, alleged to have been spent by Mrs. Roensch in paying the debts against the estate of Henry Huelsebusch of which the defendants were joint heirs; and to reform a deed previously made by her to the defendants to a part of the lands owned by Henry as his separate property at the time of his death. Trial was to the court without a jury. The court found that the debts against the estate of Henry Huelsebusch amounted to $572.80; that one-half of this amount had been paid by appellees for the benefit of, and was chargeable to, the appellants, who inherited a one-half interest in Henry’s estate; and rendered judgment in favor of appel-lees against the five appellants severally in the sum of $57.28 against each; and established and fixed a lien against the interest inherited by each of them to secure its payment. From this judgment the defendants sued out this writ of error.

Appellants’ first contention is that there was no evidence to support the trial court’s finding that Henry Huelsebusch died intestate, and that appellees were his heirs. However, an examination of the pleadings shows the appellees alleged such facts under oath; and in their answers the appellants affirmatively alleged the same facts. Consequently, no issue of fact in this regard was raised, and no proof thereof was necessary. 17 Tex.Jur., § 102, p. 332.

Without setting out and discussing the other contentions seriatim, it is manifest that the trial court’s judgment was erroneous in two respects: 1, in that it held the brothers and sisters liable for one-half of the community debts of Henry Huelse-busch; and 2, in fixing a lien on the lands they inherited from him.

The suit, among other things, was brought on the theory that the surviving widow of Henry, having paid off the community debts, and the brothers and sisters being joint heirs to his real estate, was entitled to contribution pro rata against them. It is not controverted, but admitted, that the 81 acres of land owned by Henry as his separate estate at the time of his death, was the homestead of himself and wife; and that she continued thereafter to occupy it as such. Consequently, none of the debts paid, and for which, she sought contribution, constituted any lien on such homestead. The holders thereof were merely general creditors of Henry’s estate. That being true, one-half of said lands passed to his widow free of any lien; and the other half to his brothers and sisters, likewise free of any lien, there being no children. Art. 2571, R.C.S.1925; Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 66 A.L.R. 916; Milner v. McDaniel, 120 Tex. 160, 36 S.W.2d 992; Coleburn v. Underwood, Tex.Civ.App. 53 S.W.2d 331.

Henry’s brothers and sisters were in no sense personally liable for his debts, in the absence of some agreement making them so; nor were they jointly liable!with his widow for their payment. McFarland v. Shaw, Tex.Com.App., 45 S.W.2d 193. Since these debts constituted no lien against the lands they inherited, and they were not personally liable, the court manifestly erred in rendering a personal judgment against them and in fixing a lien on their interests in said property where none existed in law. Of course, appellants could, by agreement with appellee, have obligated themselves personally for such debts. Appellees alleged that they did so agree, and so induced her to pay them, but the proof wholly fails to show any such agreement; and the court, as appears from the judgment recitals, did not predicate a recovery on that ground.

Appellants also contend that in no event, under appellees’ pleading, was the establishment of any lien on the property inherited by them authorized, in that they did not specifically pray for such relief. Under the holding in Smith v. Patton, Tex.Com.App., 241 S.W. 109, this contention seems to be good.

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

Reversed and remanded.

On Plaintiffs in Error’s Motion for’ Rehearing.

Plaintiffs in error in their motion for rehearing ask that the portion of the trial court’s judgment denying the prayer of defendants in error for reformation of the deed involved in this suit he affirmed, for the reason that it was not appealed from, nor complained of, by either party; and that it is clearly severable from the suit for contribution. In this it appears that plaintiffs in error are correct. They make no complaint of this portion of the judgment; and the defendants in error have not cross assigned any error in this regard.

Our former judgment herein reversing and remanding the cause generally is therefore modified as follows: That portion of the trial court’s judgment denying to the defendants in error, plaintiffs below, a reformation of the deed involved is affirmed. In all other respects the judgment of the trial court is reversed and the cause remanded for another trial.

Granted in part and in part overruled.


author: FOLLEY, Justice.

text:
    CULLUM et al. v. CULLUM.
    No. 5172.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Sturgeon & Sturgeon, of Pampa, for appellants.
    A. A. Lumpkin, of Amarillo, for appellee.
   FOLLEY, Justice.

This is an appeal from a judgment in a suit filed by the appellee against the appellants and H.'T. Bender seeking a judgment for debt upon a note and foreclosure of an alleged lien upon a truck of the alleged value of $600. Judgment for $767.43 was rendered in favor of the appellee against the appellants only, but without foreclosure.

The appellants have filed no'briefs-in this court. The appellee has filed a brief in which he asks that we affirm the judgment.

Finding no fundamental error in the record the judgment is affirmed. National Indemnity Underwriters of America v. Shelton, Tex.Civ.App., 115 S.W.2d 1140; McCulley v. Foster et al., Tex.Civ.App., 123 S.W.2d 705, and authorities cited.


text:
    CULLUM et al. v. CULLUM.
    No. 5173.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Sturgeon & Sturgeon, of Pampa, for appellants.

      A. A. Lumpkin, of Amarillo, for- appel-lee.
   FOLLEY, Justice.

This is an appeal from a judgment in the sum of $589.54 in favor of the appellee and against the appellants.

The appellants have perfected an appeal but have failed to file briefs. The appellee has filed his brief asking for an affirmance of the judgment.

Finding no fundamental error in the record the judgment is affirmed. National Indemnity Underwriters of America v. Shelton, Tex.Civ.App., 115 S.W.2d 1140; McCulley v. Foster et al., Tex.Civ.App., 123 S.W.2d 705, and authorities cited.


text:
    CULLUM et al. v. CULLUM.
    No. 5174.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Sturgeon & Sturgeon, of Pampa, for appellants.
    A. A. Lumpkin, of Amarillo, for appel-lee.
   FOLLEY, Justice.

This is an appeal from a judgment for $1,453.81 in favor of the appellee and against the appellants.

The appellants have failed to file briefs. The appellee has filed a brief in which he asks for an affirmance of the judgment.

Finding no fundamental error in the record the judgment is affirmed. National Indemnity Underwriters of America v. Shelton, Tex.Civ.App., 115 S.W.2d 1140; McCulley v. Foster et al., Tex.Civ.App., 123 S.W.2d 705, and authorities cited.


author: YOUNG, Justice.

text:
    FIRST NAT. BANK IN DALLAS v. SMITH.
    No. 12879.
    Court of Civil Appeals of Texas. Dallas.
    May 11, 1940.
    Rehearing Denied June 15, 1940.

      Coke & Coke and Thomas G. Murnane, all of Dallas, for appellant.
    Kent D. Allen, J. W. Hassell, and J. W. Hassell, Jr., ah of Dallas, for appellee.
   YOUNG, Justice.

This suit was for commission alleged to, be due and owing, following the completion of a real estate transaction. Appellant bank has appealed from a judgment rendered against it, of $2,125, upon jury answers, (1) That Oliver Smith was the procuring cause of the sale and exchange between defendant First National Bank in Dallas and R. Lacy, evidenced by a contract of date February' 1, 1938; (2) that prior to said date (February 1, 1938), Smith did not abandon his efforts to induce R. Lacy to purchase the land in question from said bank, and (3), that R. (or Roger) Lacy would have been induced to purchase said land (the Gray Ranch) on terms of the sales contract without the intervention and services of W. H. Kindred.

Plaintiff’s trial pleading alleged, in brief, the express agreement of appellant to pay him a commission equal to five per cent on the sales price of the bank’s realty, and two and one-half per cent on the agreed price of any property taken in exchange, conditioned that a purchaser be procured, ready, willing and able to pay a consideration satisfactory to the bank; also asserting an implied agreement by the bank to pay him the usual and customary commission in like transactions, which he averred to be, “five per cent of the purchase price for said property, and a commission equal to two and one-half per cent on the agreed price of any property taken in exchange * * *»' q-he bank’s pleading on the trial consisted of general and special exceptions and general denial. Defendant’s objections to the court’s charge were to the definition of “procuring cause”, not briefed; and that issue (1) above, was not supported by, and was contrary to, plaintiff’s pleadings, also contrary to the undisputed evidence. Defendant’s motion for a new trial later complained of the judgment ($2,125) being supported by no evidence of actual property values; on the other hand, that the rendition was based upon fictitious or trade values used by the buyer and seller in completing their deal.

Though not taken in their order of presentation, appellant’s grounds of error are, substantially, these: (1) The record is challenged as insufficient to raise any jury question whatsoever, because the same indisputably shows that plaintiff and W. H. Kindred were rival brokers; that Smith failed within a reasonable time to produce a purchaser on terms satisfactory to the bank and also ready, willing, and able to buy Lacy’s land; that Lacy (the purchaser), becoming dissatisfied with Smith’s efforts, terminated any species of employment claimed by Smith, and engaged Kindred, who became the sole and independent cause of the later sale and exchange; that the bank was entirely justified in paying the second broker full commission, with no consequent obligation or liability to Oliver Smith; (2) that plaintiff, though pleading an express oral contract of employment with the bank, to make a sale of its 1,100 acres, the evidence attempted to establish only an implied contract, or knowledge by the bank of plaintiff’s negotiations with Lacy, and acceptance of his services; (3) that plaintiff’s suit being for commission growing out of an exchange of land, he was required to allege and prove the actual values of the property involved in such exchange; and was not entitled to compute and recover a commission based upon fictitious values used in the deeds. Hence, plaintiff’s judgment, absent proof of actual values, was without support in the evidence. (4) The court erred in excluding testimony that appellant bank, in good faith, paid W. H. Kindred a commission of $2,000 for closing the transaction between the seller and purchaser; (5) there was a defect in parties, in that, Kent D. Allen was a necessary party plaintiff, the uncon-troverted evidence showing Allen to be the principal for whom plaintiff was working in the particular deal, or was a partner in a joint enterprise with Oliver Smith, regarding the prospective purchaser Lacy.

The fact questions embodied in the several jury answers were raised by the evidence, as a brief résumé thereof will disclose. Plaintiff testified that he had long been familiar with the bank’s property, having attempted to sell it for previous owners; that in May, 1937, he called on Nathan Adams, appellant’s president, and secured verbal'authority to list it at around $47,000; that Kent Allen introduced him to Roger Lacy, of Longview, who desired to sell his South Dallas realty; at the same time, to purchase country acreage adjacent to Dallas; and that after taking Lacy over the bank’s land, the following offer was secured : “August 19, 1937. Mr. Oliver Smith, Dallas, Texas. Dear Sir: I hereby offer you $25,000.00 in cash and my property at Colonial and Metropolitan Streets, Dallas, Texas, clear of debt for the 1100 acres of land situated about six miles from Dallas and known as the Judge Gray place on the Scyene Road and running through to the Kaufman Road, said 1100 acres to be delivered clear of debt and taxes and rents to be prorated on each piece of property. Very truly yours, (Signed) R. Lacy.”

Mr. Adams immediately had the Lacy property investigated as to values, but rejected the above offer, stating to Smith: “If you will get him up to around $40,000 and those stores, I think I will trade, I will recommend it.” Smith further testified, in effect, that he continued his contact with Lacy, seeing the latter several times in efforts to get another offer satisfactory to the bank; talking with Mr. Adams about the bank’s land as late as January 23, 1938, during an overflow, and was told that such was not a good time to sell. A contract of sale was obtained by W. H. Kindred February 1, 1938, whereby Lacy became the purchaser of the Gray Ranch for $50,000, one-half cash and the balance in notes. Of this cash payment, $15,000 was evidenced by Lacy’s South Dallas stores. The bank’s deed| recitjed $50,000 consideration, of which $25,000 was “cash in hand paid”. Nathan Adams testified that he talked with Smith at least half a dozen times about the land, not recalling any particular endeavor of plaintiff toward securing a purchaser, except in the Lacy letter of August 19, which was rejected; the terms presented by W. H. Kindred months afterward were better by $10,000, and were satisfactory; and that, when he sold to Lacy with Kindred as broker, he had entirely overlooked the fact that such purchaser had already been Smith’s prospect; he simply remembered that the two offers were entirely different. The bank’s verbal agreement with Smith, through its president, Adams, was that, if such agent procured a sale, the usual commission would be paid — five per cent on the sale of the properties, and two and one-half per cent on exchanges. Oliver Smith said the agreement for compensation was the regular commission of five per cent on the straight sale and two and one-half per cent on the trade. Roger Lacy, the buyer, testified that his attorney, Kent Allen, and Oliver Smith were the first and last persons who ever showed the bank’s land to him; that when his written offer of August 19 was turned down, Smith advised him of the fact, and that the bank had inspected the South Dallas stores, and wanted $40,000 difference; that he (Lacy) then declined to raise his offer, asking Smith to advise him in case said bank made another proposition; talking with Smith about once a month until the sale was finally made through Kindred. Lacy’s further testimony was that he sought out Kindred along in December, 1937, as one who could put over with the bank the same trade previously offered through plaintiff Smith; that he informed Kindred the land had already been shown by Smith; Lacy then being told by Kindred that he could possibly get the original offer of $25,000 and property accepted by the bank, whereas, Smith, for stated reasons, could not; and that 'a proposition was then made that resulted in the sale. Further, that so far as he (Lacy) knew, Smith had no knowledge of Kindred’s successful negotiations until afterward, and thought it proper to ignore Smith because of Kindred’s favorable acquaintance with certain officers of the bank.

The above thumb-nail sketch of the evidence sufficiently demonstrates same to be susceptible of different constructions as to who procured the sale of the respective properties,—whether plaintiff, alone, could have consummated the deal, or had abandoned his efforts to procure Lacy as a satisfactory purchaser. The trial court then did not err in overruling defendant’s request for peremptory instruction, and its later motion non obstante veredicto. Under the jury verdict, the principle to be applied is stated in Stone v. Cox, Tex.Civ.App., 244 S.W. 620, 622, the facts being quite similar. The court there held: “In the present case the final negotiations and sale were not conducted by the owner but by another broker, but the right to the commission of the first broker, who procured the purchaser and .whom the evidence discloses was the primary, and procuring cause of the sale, is not affected and cannot be defeated by the fact that the final negotiations were conducted and the transaction finally consummated through another broker, and this is true, even though the terms of the first negotiations may have been varied.” See, also, Masters v. Hunt, Tex.Civ.App., 197 S.W. 219.

Relative to appellant’s second proposition, plaintiff clearly plead an express agreement, and we think his proof corresponded thereto, though an implied contract to pay a commission was also plead.

Proposition 3 has been given careful study. The Bank here asserts plaintiff’s suit to be for commission growing out of an exchange of lands, that no pleading or proof of actual values are in the record, hence, the computation of $2,125 (the judg7 ment rendered on the jury answers) is entirely without support. The well settled rule is sought to be applied by appellant that, where a broker effects an exchange of property for his principal, in the absence of any 'contract providing for specific compensation, the measure of recovery must be computed on the actual value of the property received by the principal in exchange, and not upon its market, trade, or fictitious value. Story v. Conn, Tex.Civ.App., 27 S.W.2d 909. The rule just stated is a dominant factor in a suit based upon an implied contract to pay a commission, the salient feature of which is an exchange of land rather than a sale; also, the acts of the principal may obviate proof of actual values, where, as here, the property received from the' purchaser has been given a money valuation, and is recited to be a part of the cash consideration for the sale. Clearly, from the terms of the deed to Lacy, the transaction in question was a “straight sale” of the bank’s acreage, to which Smith would have been entitled to full percentage under the jury findings, absent the further understanding that only two and one-half per cent commission should be computed on that part of the cash consideration evidenced by the Lacy property. The $35,000 received by the bank was money by every known criterion, rendering any other valuation immaterial. So, also, the bank, by the deed recital of cash in hand paid, $15,-000 thereof being the Lacy realty, agreed to and affixed a valuation thereon, obviating the necessity of other proof, as in case of exchange. Therefore, following a sale by the bank of its land for cash or its equivalent, there were present in the purchase contract, recitals binding on it, from which plaintiff’s commission of fivq per cent and two and one-half per cent were properly computed.

Even if the transaction, to the extent of the Lacy realty, should be treated as an exchange of lands, we believe the sales agreement just mentioned, followed by the bank’s deed, established valuations of the respective tracts, the resulting liability being a mere calculation of percentages. Hull v. Eidt-Summerfield Co., Tex.Civ.App., 204 S.W. 480.

The trial court did not err in excluding testimony of W. H. Kindred that he had been paid $2,000 by the bank, as broker in the deal. Appellant admits, of course, that such can be no defense to the meritorious demands of another broker, but argues the inadmissibility of the testimony because the cross-examination of Kindred by appellee insinuated that his services were resorted to by the bank as a subterfuge to defeat Smith’s claim. Under defendant’s general denial, the proffered evidence raised no issue material to plaintiff’s cause of action, and objection thereto was properly sustained. Stephenson v. Jackson, Tex.Civ.App., 128 S.W. 1196; Studt v. Leiweke, Mo.App., 100 S.W.2d 30. Also, there was no defect of parties plaintiff. Kent Allen was not plaintiff’s partner in real estate matters; on the other hand, he had long been an attorney, and was counsel in the instant case. He had no understanding with the bank in the listing of its acreage, his interest being limited, at best, to a part of Smith’s recovery, under separate agreement between these two alone. Haley v. Pearson, Tex.Civ.App., 14 S.W.2d 313, strongly relied on by appellant, concerned a suit between agents upon a promise to share commissions, and the landowner was not involved, as here. See Laird v. Barnett, Tex.Civ.App., 255 S.W. 770, for facts more closely in point, where there was held to be no defect in parties; and in Hodde v. Malone Real Estate Co., Tex.Civ.App., 196 S.W. 347, 350, under a situation quite analogous, the same contention was made. The court there said: “The thirteenth assignment complains of the action of the court in authorizing a verdict for appellee, while by the evidence it appears that J. K. Profit was entitled to a portion of any sum recovered. It is shown by evidence which we have not stated heretofore that J. K. Profit, while not a member of appellee firm, was commonly associated with them in sales and was entitled to an even division of the commission sued for, if collected. This, in our opinion, made Profit neither a necessary nor a proper party. He was not entitled to recover against appellants on the contract appellee alleged, nor could he have recovered from appellee upon the contract with appellants. His remedy was against appellee upon an independent contract with it.”

Although appellant, in manifest good faith, has already paid a commission, yet, the jury found another broker to be the procuring cause of the sale above discussed, and the seller’s liability to the successful broker is not thereby discharged. The bank knew that both Smith and Kindred had dealt with the same prospect concerning the same lands, and it could have safely avoided a double payment by methods easily available. “Where an owner lists his land with several agents, he takes the risk of having to decide at his peril to whom he shall pay the commission. Ramsey v. Gibson (Tex.Civ.App.) 185 S.W. 1025; Stephenson v. Jackson (Tex.Civ.App.) 128 S.W. 1196; Masters v. Hunt (Tex.Civ.App.) 197 S.W. 219; Goodman v. Henck (Tex.Civ.App.) 295 S.W. 349.” Crosby County Cattle Co. v. Davis, Tex.Civ.App., 28 S.W.2d 1098, 1100.

It follows that appellant’s assignments and propositions must be overruled and the judgment of the district court affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    SOUTHERN TRANSP. CO. et al. v. ADAMS et al.
    No. 3680.
    Court of Civil Appeals of Texas. Beaumont.
    June 13, 1940.
    Rehearing Denied June 26, 1940.

      Strasburger, Price, Holland, Kelton & Miller, Taylor, Irwin & Irwin, and Touchstone, Wight, Gormley & Touchstone, all of Dallas, for appellants.
    Chaney, DeShazo &Hyde, of Dallas, for appellees.
   WALKER, Chief Justice.

On August 30, 1937, about 10:30 p. m., while attempting to cross Stonewall Street, in the city of Dallas, Noah Carl Adams was struck and knocked down in the street by an automobile driven by appellant, John Wesley Henry. A few moments thereafter, Adams was run over and killed by a truck owned and operated by appellant, Southern Transportation Company. This suit was brought by appellee, Mrs. Artie Adams, surviving widow of Noah Carl Adams, for herself and as next friend of her four minor children, born to her and her deceased husband, against the two appellants, praying for damages against them, jointly and severally, in the sum of $60,000 for the death of her husband.

Answering special issues, the jury found, on the negligence plead by appellees against Southern Transportation Company, that the driver of its truck was guilty of negligence, proximately causing Adams’ death, in driving the truck at a rate of speed in excess of 18 miles per hour, and in failing to keep a proper lookout for pedestrians; on the negligence plead against John Wesley Henry, that he was guilty of negligence, proximately causing the death of Adams, in driving his automobile at a rate of speed in excess of 20 miles per hour, and in failing to keep a proper lookout, and in failing to use ordinary care “with respect to the rate of speed at which he was driving.” Adams was acquitted of all acts of contributory negligence plead against him by appellants, and submitted to the jury. The jury found that the failure of Henry to keep a proper lookout was not the sole proximate cause of Adams’ death, and it found in favor of Southern Transportation Company on the issue of discovered peril. It was also found that Adams’ death was not the result of an unavoidable accident. As the issue related to the acts of the truck driver, the jury found that the “impact” of the automobile was “a new and independent c'ause” and, as that issue related to Henry, that the “impact” of the truck was a new and independent cause. The jury assessed ap-pellees’ damages at the sum of $14,000, for which judgment was entered in their favor on the jury’s verdict against the two appellants, jointly and severally, from which they prosecuted their appeal to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

At the time he was struck by appellant Henry, Adams, walking from west to east, was crossing Stonewall street at its intersection with a paved driveway commonly used by pedestrians. Henry’s automobile knocked Adams to the pavement, in the path of the street traffic. Before Adams got up and out of the way of the traffic, he was struck by the truck of Southern Transportation Company, driven in an opposite direction from Henry’s automobile, and run over and killed. It had been raining that evening. The street was paved with asphalt. There were two streetcar lines in the street. The truck of Southern Transportation Company was being driven on its side of the street, in a southerly direction. The driver of the truck, when within a few feet of Adams as he lay on the pavement, knocked there by the Henry automobile, attempted to swerve to the left. The Henry automobile was being driven in a northerly direction.

We overrule the contention of Southern Transportation Company that it was “a matter of pure speculation, surmise and guess as to whether or not the said Adams would not have died from the results of his impact with the automobile and with the asphalt street which had already taken place before he was struck by the truck in question.” On this issue, appel-lees’ witness King testified:

“Q. Did the automobile strike him? A, The left front fender did.
“Q. What happened to the man after he was struck? A. He stumbled backwards a few feet and fell as though his heel or foot struck something and tripped him down on the pavement.
“Q. When you saw him fall what did you do ? A. I ran out there to assist him to see whether he was hurt.
“Q. When you got out there was the man up yet ? A. He was in a sitting position after I got there.
“Q. Did you look at his face? A. Yes, I saw his face.
“Q. Was there any blood? A. No, sir, no blood.
“Q. Did you assist him in any way? A. No, sir.
“Q. Why? A. Because I heard some tires singing on the street and I looked up and I noticed it was a truck coming.
“Q. What else did you notice beside the truck coming? A. I just noticed, I noticed John Henry’s car was parked over there and he was trying to stop the truck.
- “Q. What did you do with reference to stopping the truck? A. ' I walked about 10 feet and whistled and hollered and flagged at this man with my hat. * * *
“Q. When you saw the truck coming what did you do? A. I went around this man and flagged the truck. He had raised in a sitting position as I went around.
“Q. You went on all the way around him ? A. I walked on up to his side, not on the side the truck was coming, but the far side, he raised up in a sitting position.
“Q. I thought you said before you got to him you saw the truck coming ? A. That is after he raised up in a sitting position.
“Q. Did you see the truck coming before you got to the man ? A. No, sir.
“Q. You got to the man before you saw the truck? A. That’s right.
“Q. Then was he pale, his face pale or how? A. No, sir, it didn’t, look pale to me.
“Q. You know it was not? A. Yes..
“Q. You could see good enough to see that his face was not pale? A. Yes.
“Q. You could have told what color his eyes were if you wanted to? A. I might have.
“Q. It was light enough for that ? A. It was plenty light to see the color of his eyes, yes, sir.
“Q. He didn’t have his face wrinkled up. with a frown? A. He didn’t show any sign of pain.”

Appellant Henry testified that he saw an object in front of his car which appeared to him to be a person; he applied his brakes and tried to avoid hitting the man; after striking the man he brought his car tó a. stop and went back; it was a dark night; Adams was either running or stumbling and was not walking; the left rear fender of his car was dented.

“Q. When you got out and looked around, what did you see? A. I saw the form of a human laying on the'pavement there.
“Q. What then happened? A. I looked ahead of me, as I started to get out of the car, and saw another automobile coming down the street.
“Q. Then what happened ? A. I looked back and saw the man trying to get up. I attempted to open the door but the car was approaching and I didn’t have time to get out of my car. I tried to stop the man that was coming,, in other words, I attempted to get out and have my left foot on the ground and my window was down, the glass was down on this left door and I had this arm out trying to wave this car down, but seemingly I was not able to do it. Of course, after the car passed I completed my attempt to get out and flag it on down.
“Q. ‘ Is that when the man was struck?
A. Yes.
“Q. By the truck? A. Yes, sir.
“Q. It happened just as fast as it could?
A. Yes, sir. * * *
“Q. How far did you knock him ? A. I didn’t knock him in his face that I know of.
“Q. How far away was he from the point where he was when you and he came together? A. When I looked back the second time before the truck got there he was between the west rails.
“Q. How far was he from the point where you and he came together? A. I imagine his feet were about two feet farther towards the west.
“Q. How far away was his head? A. His head was out north of his feet, the length of his body, I imagine- four or five feet.”

The driver of the truck testified:

“Q. On this night what was the condition of the weather out there? A. It was drizzling, just shortly before we left the warehouse.
“Q. What was the condition of the pavement on Stonewall when you got there?
A. The water was standing along the curbs and the pavement was wet in spots and some spots were dry.
“Q. Do you recall the accident that occurred close to the intersection there? A. Yes, I do.
“Q. Will you please 'turn to the Jury and explain to them the occasion, your action and what you did from the time you entered Stonewall from Gurley Street up to Haskell, that is the block on Stonewall between Gurley and Haskell? A. As I was turning into Stonewall Street, I went that distance, a little better than a block when another car coming from the other direction turned in on Stonewall Street, and as I got past this car on Stonewall Street I was going slowly and there was an object loomed up on the paving directly in front of the radiator cap, and I swerved sharply to the left and applied the brakes, at the same time and this later turned out to be a person, and by the time I swerved to the left in order to miss the object lying on the pavement and pulled over to the left side of the street I stopped.
“Q. Before you saw this object that you turned to the left on account of, did you pass any other vehicle? A. I had met a car.
“Q. Did the car have lights on? A. Yes.
“Q. Did you have your lights on? A. I did.
“Q. That car meeting you, did its lights shine in your face? A. Yes.
“Q. Before you passed this car that you met, did you see anything in the street at all? A. No, sir.
“Q. When was it that you saw this object in the street, Ralph? A. I saw the object in the street when I got around six or eight feet from it.
“Q. Was that right after you had passed the car you were meeting? A. Yes.
“Q. Were you looking ahead trying to see past as best you could? A. Yes.
“Q. What is the effect on your sight when you are meeting another car at night coming from the opposite direction? A. When the lights are bright, as in this instance, you can’t see to distinguish any objects plainly except immediately in front of you when you have low rays of your lights shining.
“Q. Right after passing this automobile that was coming from the opposite direction you saw this object on the street, did you say? A. Yes, sir.
“Q. Can you tell what it was, or could you at that time? A. No, sir, at the time I couldn’t tell what it was.
“Q. About how far was it from you at the time? A. I judge it would have been six or eight feet in front of me, it might have been more or less.
“Q. You say it might have been more or less? A. A few feet difference but not much difference.
“Q. When you did see that what did you do ? A. When I did see that I immediately applied the brakes and started turning to the left.
“Q. Why did you turn to the left and apply the brakes? A. Because this object was immediately to the right of my radiator cap and in front of the right wheel.
“Q. Was you on your side of the road? A. 'Yes.
“Q. Did you know of anything else to do except to cut to the left and put on your brakes? A. That’s all I could have done in order to -have gone so far as to get clearance and keep from coming in contact with him.
“Q. Did you put on your brakes as hard as you could ?. A. I applied the tractor brakes as hard as I could.
“Q. Did you turn as far to the left as you had time to? A. Yes, sir.
“Q. So far as you knew, did you know that you struck the object until afterwards? A. I didn’t know whether I had struck the object at all.
“Q. After you passed the object did you stop your truck? A. Yes, after I had passed the object I stopped.
“Q. Where? A. On the lefthand side of the' street.”

Dr. Sam Webb testified that, when a pedestrian is struck or brushed by an automobile and falls back, or flat on his back on the pavement, he could receive a serious injury, a concussion; he could not tell the extent of the injury without examining the injured person; the accident might or might not seriously injure the person; where the injured person could not raise himself any further up than a sitting position, he would think something was wrong with him.

On the evidence, it was the prerogative of the jury to determine the extent of the injuries inflicted upon Adams by the Henry automobile, and as a separate issue, by the truck.

Adams was not guilty of contributory negligence, as a matter of law, in attempting to walk across the street at the place of the accident, on the theory that he was crossing the street at a place not authorized by law. The following statement from appellees’ brief raised the issue in Adams’ favor that he was exercising ordinary care in attempting to cross the street at that particular place: “The witness, Cade, called by the plaintiff, testified that he had lived in the filling station for a period of thirteen months just preceding the accident in question, and that there was a paved walk running from Stonewall Street to South Carroll Street; that pedestrians commonly used the driveway back of his station to cross the street at its intersection and the paved walk from Stonewall to South Carroll. Mrs. J. D. Cade, a witness called by the plaintiffs, testified to the paved driveway in the rear of their filling station from South Haskell to Stonewall and the paved walk from Stonewall to South Carroll and that pedestrians used them. The witness, Herbert King, testified that more people used that passway and paved driveway in crossing Stonewall than use the intersection where South Haskell Street and Stonewall fork, because where the streets both fork is dangerous.”

The court did not err in refusing to instruct a verdict for Southern Transportation Company on the theory that the evidence did not raise against it the issue that the negligence of its driver was a proximate cause of Adams’ death. We think, under the evidence quoted above, that the jury could have found that the accident would not have happened but for the negligence of the driver in his rate of speed, and his negligence in failing to keep a prop-, er lookout.

Though the jury convicted each of the appellants of acts of negligence, each constituting a proximate cause of the death of Adams, affirmative answers were rer turned to the following issues:

“Special Issue No. 47. Do you find from a preponderance of the evidence that the impact of the Terraplane Sedan and Noah Carl Adams was a new and independent cause of the death of Noah Carl Adams as far as Ralph E. Miller was concerned ?
“Special Issue No. 47A. Do you find from a preponderance of the evidence that the impact of the truck of the Southern Transportation Company and Noah Carl Adams was a new and independent cause of the death, of Noah Carl Adams, as far as John-Wesley Henry was concerned?”

On motion óf appellees, judgment was entered in their favor, notwithstanding the jury’s answers to special issues 47 and 47A. Both of these issues were raised by the evidence. The jury could have found that the negligence of the truck driver, in his rate of speed and in failing to keep a proper lookout, was broken by Henry’s negligence, and that Henry’s negligence was an intervening agency breaking the causal connection between the negligence of the truck driver and Adams’ death. The evidence also raised the issue that.the negligence of the truck driver broke the causal connection between Henry’s negligence and the death of Adams. So, there is a clear conflict between the findings of the jury on the issues of proximate cause, as against both appellants, and the findings on the issues of new and independent cause.

The evidence, las given above, raised the issue of “unavoidable accident”, which was 'submitted to the jury by the following question: “Do you find from a preponderance of the evidence that the death of Noah Carl Adams' was not the result of an unavoidable accident?”, on the following definition: “By the term ‘Unavoidable accident’ is meant the occurrence of an event without negligence on the part of any of the parties involved.” We sustain the exception of Southern Transportation Company that the court should have instructed the jury that the death of Adams was -the result of unavoidable accident, as between it and Adams, if it was occasioned without negligence on Adams’ part and on the part of Southern Transportation Company. Southern Transportation Company was entitled to have the jury answer that the accident was unavoidable, if it found from the evidence, that Adams was not guilty of any negligence, and that the truck driver was not guilty of any negligence. Negligence on the part of Henry would not prevent the accident from being “unavoidable” as between Adams and Southern Transportation Company, provided, as between Adams and Southern Transportation Company—just as between them—Adams’ death was the result of an unavoidable accident. Dallas Ry. & Ter. Co. v. Price, 131 Tex. 319, 114 S.W.2d 859.

The jury was instructed to answer the issue of unavoidable accident: “Let your answer be: ‘It was not the result of an unavoidable accident,’- or ‘It was the result of an unavoidable accident.’ ” On another trial, we suggest that this charge be made to conform with the suggestions of the Commission of Appeals in Gulf, C. & S. F. Ry. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795.

Appellees had the right to introduce pictures of the accident and of the body of the deceased as it lay on the street, in so far as these pictures' were pertinent to any issue before the jury. But, as-- the record appears on this appeal, appellees could .have had the benefit of these pictures on this particular point without introducing that part of the picture emphasizing the horrors of the accident—the blood on the pavement, and other incidents in connection therewith, calculated to arouse the sympathies of the jury in favor of appellees, and their prejudices against appellants. 22 C.J. 914; Lynch v. Baldwin, Mo.Sup., 117 S.W.2d 273.

We do not think question No. 4 gave undue emphasis and prominence to the issue “of keeping a lookout for pedestrians”: “Do you find from a preponderance of the evidence that at the time and on the occasion in question Ralph E. Miller failed to keep a proper lookout for pedestrians?”

Officer Nelson was qualified to testify as to the rate of speed of the truck from his examination of the skid marks.

Because of the conflict in the jury’s answers resulting .from its findings on the issue of “a new and independent cause,” and because of the error in the court’s definition of “unavoidable accident,” the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    JOYCE v. DALLAS COUNTY.
    No. 3673.
    Court of Civil Appeals of Texas. Beaumont.
    June 10, 1940.
    Rehearing Denied June 26, 1940.
    Geo. F. Smith, Jr., Robert C. Johnson, and O. F. Wencker, all of Dallas, for appellant.
    E. G. Moseley, Harold McCracken, and David Weinstein, all of Dallas, for ap-pellee.
   WALKER, Chief Justice.

On September 30, 1939, on the verdict of a jury answering special issues, judgment was entered by the County Court of Dallas County at Law No. 2, against appellant, Miss Marita Joyce, in favor of appellee, County of Dallas, condemning a strip of land 60 feet wide across certain land owned by appellant in Dallas county, containing 2.63 acres, as an extension of the right of way of Church Road No. 62. The right of way across appellant’s land is described by metes and bounds in the judgment, as entered in the min(utes of the court, Vol. 28, page 276. The appeal was prosecuted to the Dallas Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

Appellant’s first proposition is that appellee did not allege in its condemnation petition, upon, which the commissioners were appointed, nor in its trial pleadings in county court, that appellee and appellant were unable to agree upon the value of the land, prior to the institution of the condemnation proceedings; that the evidence did not raise that issue; and that the court erred in refusing to submit to the jury certain questions specially requested, submitting that issue. These contentions are' all overruled. In its petition for condemnation, appellee alleged: “Plaintiff would further show that acting by and through its duly authorized agents it has made a bona fide attempt to settle with the defendants or their agent and has attempted to purchase from them the above tract of land for public road purposes and that Plaintiff and the Defendants have been unable to agree upon the amount of compensation to be paid Defendants for said land.”

On authority of Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508, and the authorities therein-cited, this allegation was good as against appellant’s proposition. On tbe undisputed proof—the testimony of appellant herself—appellee made two efforts to reach an agreement with her as to the value of the very land condemned by the judgment, and appellant, refusing to accept both of appellee’s offers, did not submit a counter offer. There is nothing in the record impeaching the good faith of appellee’s agent in the offer made by him to appellant to purchase the right of way across her land. Since, on the undisputed proof, appellee made a good-faith offer to settle the controversy between it and appellant, the court did not err in refusing to submit that issue to the jury, on the question specially requested by appellant.

By her second point, appellant complains of the introduction before the jury of her tax assessment sheet for the year 1935, covering the land in issue. Her proposition is that this rendition sheet was irrelevant and immaterial since it formed no criterion by which the value of the land could be assessed; and since she did not testify as to the value of the property, the rendition sheet was not admissible as impeaching evidence; and “the time of the making of the assessment is too remote, the assessment having been made in 1939.” As shown by the following statement taken from appellee’s brief, there was a striking conflict betweén the testimony offered by appellant and the testimony offered by ap-pellee as to the value of the land in controversy :

“S: R. Pitcock, witness for the condem-nor, testified that the market value of the land in question was $175.00 to $200,00 per acre; R. L. Staten, a witness for the con-demnor, testified that the market value of the land was $125.00 per acre; R. L. Palmer, witness for the condemnor, testified that the market value of the land was $125.00 to $150.00 per acre; Tom Jackson, witness for the condemnor, testified that the market value of the land taken was $150.00.
“O. E. Skipwith, a witness for the con-demnee, testified that the market value of the land in question was $400.00 per acre; Clyde B. Hall, a witness for the con-demnee, testified that the market value of the land taken was $250.00 per acre; H. E. James, a witness for the condemnee, testified that the market value of the land taken was $250.00 per acre; Chas. L. Joype, father of the condemnee, a witness for the condemnee, testified that the market value of the land taken was $300.00 per acre. The tax rendition referred to in appellant’s Second Proposition is plaintiff’s Exhibit No. 8, at page 219 of the Statement of Facts, which shows 22 acres in the N. McCreary Survey and 77 acres in the W. P. Wyche Survey, a total of 99 acres rendered at a total value of $1,-360.00 for County taxation purposes. This Exhibit No. 8 appears to be signed by Marita Joyce.”

On authority of Fort Worth & D. S. P. Ry. Co. v. Gilmore et al., Tex.Civ.App., 13 S.W.2d 416; Dickens County v. Dobbins et al., Tex.Civ.App., 95 S.W.2d 153, the rendition sheet was admissible. In State v. Doom, Tex.Civ.App., 278 S.W. 255, a tax rendition sheet more than four years old was held admissible.

We give appellant’s fourth proposition:

“It was error in permitting the plaintiff’s witness Tom Jackson to testify over the objection of the defendant as to selling 85½ acres of land in 1936 near the farm of defendant and testifying as to the value of such farm upon a basis of taking in a cottage in trade and stating what value was placed on the cottage.”

This proposition is overruled. In City of Houston v. Pillot, Tex.Civ.App., 73 S.W.2d 585, the condemnation proceedings were had in November, 1932; the court held that testimony was admissible of one sale made in 1928, and of another in 1929.

On the same authority, we overrule appellant’s fifth proposition that the court erred in receiving evidence as to a sale in 1936 by Tom Jackson of a second tract of land of 190 acres “about a mile and a half from the land in question.”

The second and third issues submitted to the jury, answered as indicated, were as follows:

“Question No. 2: From a preponderance of the evidence what do you find was the market value of defendant’s tract of land exclusive of the strip of land condemned, immediately before the strip was taken for highway purposes? Answer in dollars and cents. Answer: $10,800.00.
“Question No. 3: Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendant in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence was the market value of the remainder of defendant’s tract of land immediate-' ly after the taking of the strip condemned for highway purposes? Answer in dollars and cents. Answer: $11,520.00.”

. Appellant’s sixth proposition is that these answers by the jury, on the evidence as a whole, indicated on its part “bias, prejudice, and unfairness.” This contention is denied. The right of way was condemned across 25 acres of appellant’s land. The statement given above supports these findings.

As shown by the statement made above, there was a sharp conflict in the testimony as to the market value of the land in issue, and the verdict of the jury, fixing the value of the land condemned at $460.-25 has support in the evidence.

The judgment of the lower court should be aifirmed, and it is accordingly so ordered.

Affirmed.


text:
    MATTHEWS v. WILSON.
    No. 3690.
    Court of Civil Appeals of Texas. Beaumont.
    June 5, 1940.
    Rehearing Denied June 12, 1940.
    Will R. Saunders, of Dallas, for appellant.
    Kennemer & Armstrong, of Dallas, for appellee.
   COMBS, Justice.

This is an appeal from a judgment of the 101st Judicial District Court, Dallas County, in which the appellant, who was defendant in the court below, complains of the action of the trial court in overruling his plea of privilege. The suit was on two promissory notes aggregating $850, and for foreclosure of a chattel mortgage lien on fifty head of cattle of the alleged value of $2,000. The notes were payable in Dallas County. The defendant filed a plea of non est factum, among other defenses. The trial of the plea of privilege was to a jury. The plaintiff took the stand and testified to the due execution of the notes and mortgage by the defendant and they were introduced in evidence. Defendant did not testify or offer any evidence in rebuttal to plaintiff’s case. At the conclusion of the evidence the trial court entered judgment overruling the plea of privilege without submitting any issues to the jury.

The appellant’s contention here is simply to the effect that the pleading and evidence raised an issue of fact for the jury as to whether or not he signed the notes and mortgage. It is contended that plaintiff gave certain testimony which he contradicted on cross-examination; that the handwriting of the signatures on the two notes differs in certain respects, and that since the only testimony tending to establish due execution of the qotes and mortgage by the defendant came from the plaintiff, an interested witness, the issue was not conclusively established, but should have been submitted to the jury.

We overrule the assignments. We think the minor discrepancies were not of a nature to discredit the plaintiff’s testimony. The notes and mortgage were introduced in evidence. The signatures are not before us for examination and presumably the trial court concluded that the alleged differences were not such as to cast doubt on the genuineness of the signatures. The general rule to the effect that the uncorroborated testimony of an interested witness does not conclusively establish a fact is subject to certain exceptions. One of these exceptions is that where the testimony of such witness is such that it might readily be discredited if it were not true, and the adverse party offers no disparaging proof, it may be accepted as conclusively establishing the fact. Luling Oil & Gas Company v. Edwards, Tex.Civ.App., 32 S.W.2d 921; Taylor-Link Oil Company v. Anderson, Tex.Civ.App., 92 S.W.2d 499. The defendant could have taken the stand and denied the execution of the notes and mortgage if he had cared to do so. Since he did not elect to do that, we think the trial court properly held that there was no issue to- go to the jury.

The judgment of the trial court is affirmed.

Affirmed.


author: JACKSON, Chief Justice.

text:
    STRICKLIN v. RICE et al.
    No. 5161.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    G. E. Lockhart and W. R. Porter, both of Lubbock, for appellant.
    Crenshaw, Dupree & Milam, of Lubbock, for appellees.
   JACKSON, Chief Justice.

The record shows that in February, 1935, Manion Rice purchased from S. E. Cone a grain elevator located at Anton in Hock-ley County, Texas, which he operated under the trade name of Manion Rice Elevator Company. He engaged in the business of buying, selling and storing grain, wheat, sudan seed, etc. He was bonded and conducted his storage business as a public warehouseman and used his elevator as a warehouse, the capacity of which was about 6,000 bushels of grain. Wheat, grain and seed bought or stored were not kept separate from the grain and seed of other depositors but by custom or agreement, either express or implied, such articles were mingled with other grain or seed of the same kind and grade. The various depositors and Rice owned the entire mass in the storehouse in common and Rice and each depositor was entitled to such portion of the whole as the amount deposited by him bore to the entire mass. When sales were made the seed or grain sold or shipped was taken from the mingled mass of the same kind and grade found in the warehouse.

H. H. Stricklin delivered to Mr. Rice at his elevator in Anton 43,740 pounds of sudan grass seed on the terms and con•ditions contained in the following instrument dated February 15, 1936.

Lubbock, Texas
Terms Contract Storage Sudan
Grain Account with H H Stricklin February 15,1936 Morton, Box 838.
Kind oí grain Ticket No. weight Sudan”
(Then follows the ticket number and weight of each load delivered, the aggregate amount of which is 43,740 pounds, after which the instrument continues:)
■“Bonded Warehouse
L Advance 750 $328.05
2. Customer agrees to take Government Terminal Elevator Shrinkage.
3. Customer reserves the right to get Sudan Seed out of storage at time he is ready to sell provided Elevator can not pay as high as he is offered by other grain dealers.
4. Elevator reserves the right to buy above Sudan provided he can pay as much as other Grain Dealers.
6. Elevator reserves the right to charge 50 per hundred for loading out charges provided he does not buy above Sudan.
6. Storage rate,2H0 cwt. per month.
Manion Rice Elevator Co.
Hoyt Rice
Customer: H. H. Stricklin
Sudan 6265 5430
6276 4690
10120
Storage starting June 16th 17th 1936.”

On June 16th and 17th Mr. Stricklin delivered the additional 10,120 pounds of seed on the same contract which together amounted to 53,860 pounds. Rice shipped the 43,740 pounds to Lubbock about February 24, 1936, and stored it with S. E. Cone who operated a grain elevator in Lubbock and was engaged in buying, selling and storing grain under the trade name of S. E. Cone Grain and Seed Company. In December Rice shipped the additional 10,120 pounds to Mr. Cone in Lubbock and stored it in his elevator. Rice claimed to own this sudan seed and so informed Mr. Cone who advanced the sum of $500 thereon. This 53,860 pounds of seed and the $500 advanced thereon were included in .a total of 194,000 pounds stored by Mr. Rice with Mr. Cone in 1936 and the $500 was included in the sum of $5,866.46, the sum advanced on the whole amount of seed stored with Cone by Rice. It was understood that should the market price of the seed decline sufficiently to consume the interest or equity of Rice, the depositor, in the seed he should margin the seed or the warehouseman was authorized to close out the seed on the market to protect himself against loss.

The Anton State Bank early in 1936 sued Manion Rice on indebtedness due it by him and had a writ of garnishment issued and served on Mr. Cone who informed the bank the amount of seed Rice had stored with him, the money advanced thereon, the storage charges against the seed, his right to close out if the price declined sufficiently to consume the interest of Rice in the seed. Cone gave the bank the choice of paying the money due him for such advance and storage or to put up money to margin the seed against loss on a declining market. The bank put up a margin to protect 100,000 pounds of the seed and Mr. Cone carried the contract until in March, 1937, when the market price declined to a point where 'the equity of Rice was consumed, no further margin was put- up and appellee Cone closed out the seed stored by Rice with him, and in such transactions lost the sum of $17.

Mr. Stricklin knew when he delivered the seed that Manion Rice had but a small elevator, was engaged in buying, selling and storing grain, and that he shipped grain out from time to time. He understood that if the market declined sufficiently he would be required to put up a margin to protect his seed and if he failed to do so Rice would be authorized to close it out.

H. H. Stricklin, the appellant, instituted this suit in the District Court of Lubbock County on January 20, 1939, against Man-ion Rice and S. E. Cone, the appellee, to recover the market price of his seed which he alleges they converted and appropriated to their own use and benefit. He pleads the storage of the seed with Rice, the contract or receipt issued to him therefor, and contends that the transaction was a bailment, that Rice and appellee acted jointly in the conversion, that he demanded the seed, which they refused to deliver, and asserts his right to recover the sum of $1,274.86, the market value of the seed at the time of conversion.

Manion Rice answered by general demurrer and general denial.

Appellee Cone answered by general demurrer, general denial, pleaded the two years’ statute of limitation, that the sudan seed was sold by Stricklin to Manion Rice who represented that he was the owner of the s.eed, asserts that the contract or receipt constituted a sale and not a bailment, that Rice was authorized to sell thereunder and that he acquired the seed for value without notice of the appellant’s claim.

We deem it unnecessary to make a more detailed statement of the allegations in the appellant’s petition or the appellee’s answer since many of the facts alleged were abandoned and are immaterial to a review of this case.

On special issues submitted by the court the jury found, in effect, that the sudan shipped by Rice to Cone was of the reasonable market value of 3‡ per pound and that the market value of such seed was the same on March 3, 1937. In response to a peremptory instruction the jury found against appellant H. H. Stricklin and in favor of appellee S. E. Cone. On these findings the court rendered a judgment in favor of H. H. Stricklin against Manion Rice for the sum of $1,270.77 and that appellant take nothing against appellee S. E. Cone, who was decreed to go hence with his costs. The appellant prosecutes this appeal from the action of the court in directing a verdict against him in favor of S. E. Cone and rendering judgment thereon.

The appellant urges as error the action of the trial court in directing a verdict for the appellee S. E. Cone because the evidence shows that the contract between appellant and Manion Rice was a bailment and not a sale.

The record reveals, and this apparently is conceded, that it was contemplated that the sudan seed of appellant would not be stored by itself in a separate bin but would be mingled with other seed of the same kind and grade.

We are cited to no decision by the Texas courts and in. our investigation we have found none in which the precise question of whether a contract such as was made by appellant and Rice constitutes a bailment or a sale. However, the law in Texas seems to be that when there exists no obligation to return the specific article and the bailee is authorized to return another article equally valuable the transaction is a sale and not a bailment. Keystone Pipe & Supply Co. of Texas v. Herbert Oil Corporation, Tex.Civ.App., 62 S.W.2d 606. The contract, among other things, expressly provides that the appellant may “get sudan out of storage” when he is ready to sell, provided Manion Rice will not pay him as high a price as other grain dealers, which manifestly means if Rice refuses to pay the market price and Rice reserves the right to purchase the seed if he will pay as much as the other grain dealers, meaning obviously if he will pay the market price.

This is clearly a contract giving Manion Rice the option either to deliver the quantity and quality of seed deposited in the elevator by appellant or pay him the market price therefor.

The law distinguishes between a contract giving the depositor an option to demand the grain or to sell to the warehouseman and anyone he chooses and a contract giving the warehouseman an option.

In 6 Am.Jur. 181, para. 52, the author says: “Where grain. is delivered to a warehouseman, who mixes it with that of others, under an express contract, or a contract implied from the usual course of business, that when the depositor chooses to call for it the warehouseman will have the option to pay the highest market price or return an equal amount of grain of like quality, the general rule is that the transaction will not be deemed a bailment, but rather, a sale with an option on the part of the purchaser to pay either in money or in property as stipulated.”

In Burke v. Boulder Milling & Elevator Co., 77 Colo. 230, 235 P. 574, 575, the Supreme Court of Colorado says:

“If the option to pay for grain at the-market price or return the grain is with the warehouseman, the transaction ,is a sale. 3 R.C.L. p. 75, § 6; Savage v. Salem Mills Co., 48 Or. 1, 85 P. 69, 10 Ann.Cas. 1065; Cloke v. Shafroth, 137 Ill. 393, 27 N.E. 702, 31 Am.St.Rep. 375; Barnes v. McCrea, 75 Iowa 267, 39 N.W. 392, 9 Am.St.Rep. 473; Bonnett v. Farmers’ & Growers’ S. Ass’n, 105 Kan. 121, 181 P. 634, Finch v. McClellan, 77 Ind.App. 533, 130 N.E. 13, 131 N.E. 236.
“In each of these, 'and in practically every authority brought to our attention, the contract was for ‘market price’ or ‘current price’ or ‘highest market price.’’ Whatever the language, the price is always definite or capable of being made definite. It is such a price, payable at the option of the dealer, which fixes upon the-transaction the character of a sale.”

See, also, Summers v. Peoples Elevator Co., Mo.App., 136 S.W.2d 81; Potter v. Mt. Vernon Roller Mill Co., 101 Mo.App. 581, 73 S.W. 1005; Henderson Grain Co. et al. v. Russ et al., 122 Tex. 620, 64 S.W.2d 347.

In our opinion, the written agreement gave Manion Rice the option to return sudan seed of the same class or to pay the highest market price therefor and •constituted a sale and not a bailment and therefore Rice was authorized to handle the seed as his own and appellee S. E. •Cone was not responsible to appellant for the seed nor the market price thereof.

The appellant assigns as error the action of the court in excluding the testimony of Manion Rice and appellant as to their intention in entering into the written contract when the seed was deposited in the elevator. This instrument is not ambiguous, defines the rights and liabilities of each of the parties thereto, no fraud, accident or mistake is alleged, and pároli .testimony as to the intention of the parties -was not admissible under this record.

The judgment is affirmed.


author: BLAIR, Justice.

text:
    BLANCO COUNTY BOARD OF SCHOOL TRUSTEES et al. v. MT. VIEW COMMON SCHOOL DIST. NO. 18 et al.
    No. 8985.
    Court of Civil Appeals of Texas. Austin.
    June 12, 1940.
    N. T. Stubbs, of Johnson City, for appellants.
    Emmett Shelton, of Austin, for appellees.
   BLAIR, Justice.

Appellees, as trustees of Mt. View Common School District No. 18, Live Oak Common School District No. 2, and McKinney Common School District No. 3, and as individual taxpayers, instituted this proceeding not against the County Board of Trustees of Blanco County as a body corporate or politic, but only against the individual members of such board, seeking to perpetually enjoin them from “enforcing the results of an election” held to determine whether said appel-lee common school districts should be annexed or grouped with the Blanco Rural High School District No. 1, which was not made a party to the suit as a body corporate or politic, nor were its trustees made parties to the suit. The trustees of the Board of County School Trustees filed a plea in abatement upon the ground that the County School Board as a body corporate or politic was a necessary party defendant, which was overruled, and on the trial judgment was rendered perpetually enjoining the Board of County School Trustees from enforcing the results of the election which authorized the annexing and grouping of said aforementioned four districts. The Board of County School Trustees asked leave to file and did file a motion to set aside the judgment against it, because it was not a party to the suit, and for a new trial setting up various grounds as to why the judgment was erroneous. This motion was overruled; hence this appeal by the County Board.

The law is settled that in suits involving the validity of rural high school districts and their annexing or grouping with common school districts, the corporate county school board and the corporate board of each district affected should be sued as such; and that where it appears on the face of the record on appeal that such a necessary or affected corporate board was not made a party, the error is fundamental, requiring a reversal of the judgment. Butman v. Jones, Tex.Civ.App., 24 S.W.2d 796, 797; Bell v. Ditmore, Tex.Civ.App., 38 S.W.2d 397. In accord anee with this conclusion, the judgment of the trial court is reversed and the cause is remanded.

In remanding the cause, however, and if parties are made and another trial is had, we hold that the only issue in the case is whether the election was called for the purpose of annexing or grouping the common school districts with the existing Blanco Rural High School District No. 1, as distinguished from the consolidation of the districts involved. As presented by the record here, it was conclusively shown that the election was called for the purpose of annexing and grouping the districts, and although some irregularities existed, they were not sufficient to invalidate the election or the order of the County Board annexing and grouping them. That is, the record conclusively shows that the election was legally and regularly held and the results declared, and the several school districts were annexed or grouped into the Blanco Rural High School District No. 1, as provided for by Art. 2922a and Art. 2922c of the R.S. Vernon’s Ann.Civ.St. arts. 2922a, 2922c. Trinity Ind. School Dist. v. District Trustees, Tex.Civ.App., 135 S.W.2d 1021, writ refused. The election was not for the consolidation of the districts, and therefore the contention of appellees that the election should have been called and held as provided for by Arts. 2922aa and 2806, R.S., Vernon’s Ann.Civ.St. arts. 2922aa, 2806, is not sustained by the record presented.

The judgment of the trial court is reversed and the cause remanded.

Reversed, and remanded.


text:
    SMITH et al. v. HIGGINBOTHAM et al.
    No. 12894.
    Court of Civil Appeals of Texas. Dallas.
    May 25, 1940.
    Rehearing Denied June 22, 1940.

      J. Frank Wilson and George C. Cochran, both of Dallas, for appellants.
    Read, Lowrance & Bates, of Dallas, for appellees.
   YOUNG, Justice.

A previous trial of this cause was appealed and reference may be had to Smith v. Higginbotham, Tex.Civ.App., 112 S.W.2d 770, for facts concerning the parties and subject-matter, without necessity of restatement. A second trial was had in the January, 1939, term of the 116th District Court; the movant, or quasi-plaintiff, Irene Smith and husband, relying on their statutory motion for new trial, or self-styled “bill of review”, filed April 30, 1936, to which the Higginbothams, Trustees, here designated defendants, filed second amended original answer on December 3, 1938. A motion to strike all of defendants’ said affirmative pleading being overruled, a trial on the merits was heard to the court, who, after introduction of evidence, requested written briefs. The cause was then taken under advisement until March 28, 1939, when judgment was rendered granting new trial, but, on the whole case, in favor of the Trustees; that is to say, recovery was accorded appellees, foreclosing the vendor’s lien originally retained on the property in the deed from • the Security Home Company to the Smallwoods, renewed and kept alive in the note and deed of trust dated March 29, 1932, as fully described in the aforesaid amended original answer. The balance due on said note was established at $732.52 principal, $81.11 interest, and attorney’s fees, with 10 per cent interest thereon from November 7, 1935 (time of first judgment). There was a further provision for order of sale.

The assignments of error of Irene Smith (movant in the new trial proceedings) are to this effect: (1)' That, although good cau'se was both alleged and proven by her, and new trial granted,, it was error to, at the same time and upon the same facts, render final judgment; she being entitled to an independent and subsequent trial upon the facts and the law; (2) the original suit and judgment (described in the former appeal) being upon a $1,000 renewal note, dated April 29, 1928, it was error for the trial court to permit appellees to declare and recover upon a new and different cause of action in the statutory motion for a new trial, viz.: a note in the sum of $829.88, dated March 29, 1932; (3) the trial court did not have jurisdiction to render judgment on the merits upon hearing of a motion for new trial, and it was error to foreclose movant’s interest in the land upon a different note, from that alleged in the inception of the Higginbotham suit; (4) the last rendition in favor of appel-lees, “doing business as the J. M. Higgin-botham Trust”, was error because the capacity in which' the note-holders were allowed to recover was indefinite and uncertain and not supported by the pleading.

Only a transcript is before us, embracing, in material part, the original petition, the first judgment, Irene Smith’s bill of review, Second amended original answer of Trustees, motion to strike same, and the judgment here appealed from. The agreed statement of facts adduced on the first trial is not included. It is determinable from the record, however, that the $829.88 note of 1932 was in renewal and extension of the unpaid balance due upon the $1,000 note of April 29, 1928; and that the amount of recovery in the two judgments was identical, i. e., $732.52 principal, $81.11 interest, attorney’s fees, and interest at 10 per cent from November 7, 1935. It is further evident' that District Judge Rawlins allowed Irene Smith’s new trial because the basis of the first judgment was the note for $1,000 that was barred by. limitation. Issues at the same time were joined on an alleged renewal of date March 29, 1932. A full hearing was then had on all defenses to the last-named obligation, which being deemed insufficient, judgment was rendered accordingly. In the absence of a statement of facts, it will be presumed that such action found support in the evidence.

Appellant argues that the trial court should have gone no farther in the instant proceedings than to grant a new trial, as in case of a motion for new trial after personal citation and default judgment. All assignments to this effect must be overruled. There is a marked procedural difference in the disposition of a new trial motion where personal service has been had upon the defendant in default, and a similar motion after service by publication. The scope of inquiry in a motion for new trial of the former type is limited to the existence vel non of a prima facie defense, and does not include a trial on the issues alleged therein as constituting such defense; Cragin v. Henderson County Oil Development Co., Tex.Com.App., 280 S.W. 554. On the other hand, motions under Art. 2236 contemplate a hearing of testimony on the issues raised by the particular pleading. Keator v. Case, Tex.Civ.App., 31 S.W. 1099, an early but leading authority, states the rule: “We are also of opinion that the allegations in an application of this kind are not to be accepted as true, and the new trial granted or refused alone upon their sufficiency or insufficiency, but they may be controverted and evidence heard as to their truth. If this be true, we think the practice of submitting all the issues in one trial, now thoroughly established in this state in ordinary suits to vacate judgments, would be the most convenient, and should be adopted.” In this respect, the procedure has been held similar to that involving equitable bills of review. See Ashton v. Farrell & Co. (Ft. Worth) Tex.Civ.App., 121 S.W.2d 611, 616, appeal dismissed, -where, in a case quite similar, the court ;said: “If the motion for new trial under Art. 2236 of the statutes is sufficient on its face to show right thereto, then the merits of the suit may be determined in .connection with the hearing of the motion, to avoid trial of the two issues by piece meal.” Appellant makes no claim of additional evidence which she could have produced at a later trial. No request for continuance appears to have been made; o'r showing that movant has not already- been accorded full opportunity in which to establish her allegations of good cause for the rendition of a different judgment. In this situation, with the testimony fully developed to a definite conclusion, it would have been idle to split up the proceedings and retry the same issues, when no other result than that already attained could have been reached. Moreover, following Keator v. Case, ante, the court properly disposed of the motion at one hearing, even to the new and different pleading of the Trustees. As held in Brown v. Dutton, 38 Tex.Civ.App. 294, 85 S.W. 454, 455, “ * * * it is clear from the above authorities that a proceeding under article 1375, Rev.St.1895, supra [now Art. 2236], to set aside a judgment rendered on service of citation by publication in the district or county court, should be tried on the pleadings of the parties in such proceeding, separate from the original case, * * * ” (italics ours) ; and, in 31 Tex.Jur., New Trial-Civil Cases, sec. 174, pp. 185, 186, the rule is stated: “The hearing is upon the petition for a new trial and the answer thereto — not upon the pleadings in the main case. The defendant in the main case becomes, in a measure, the plaintiff in a new proceeding; and the burden rests upon him to show that the judgment is wrong. It has been said that the practice of submitting all of the issues in one trial, which prevails in suits in equity to vacate judgments, should be adopted.”

The cases cited by appellant are not inconsistent with the above principles. Among them are, Wiseman v. Cottingham 107 Tex. 68, 174 S.W. 281, and Trujillo v. Piarote, 122 Tex. 173, 53 S.W.2d 466. Both involved new trials under Art. 2236, where the publication judgment was set aside and a new and different rendition ordered on the one setting of the particular cause.

There was no indefiniteness or uncertainty in the judgment recital, “that the said J. M. Higginbotham, Jr. and J. L. Higginbotham, Trustees, doing business as the J. M. Higginbotham Trust, do have and recover” etc. Appellees were so designated in the trust instrument filed (as alleged) in the records of Dallas County; it also being averred that the J. M. Higginbotham Trust was a partnership, in which the same-named parties were acting as managing partners. Title to the note was in them in either capacity. The Trustees, as such and as partners, also the trust or partnership represented by them, were plainly bound by the judgment and appellant was fully protected against further liability. In fact, no judgment was taken against Mrs. Dora Smallwood, as community survivor, and the heirs of C. H. Smallwood, other than one of foreclosure.

It follows that all assignments and propositions of appellant should be overruled, and the judgment of the trial court affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    TEEL et ux. v. TEEL.
    No. 3677.
    Court of Civil Appeals of Texas. Beaumont.
    June 4, 1940.
    Rehearing Denied June 12, 1940.
    A. A. Dawson, of Canton, for appellants.
    Wynne & Wynne, of Wills Point, for appellee.
   O’QUINN, Justice.

This is a suit in trespass to try title to 100 acres of land situated in Van Zandt County, Texas, brought by J. S. Teel against S. M. Teel and his wife, lone Teel, to recover the title and possession, of said land. Appellants answered by general demurrer, general denial and plea of not guilty. The case was tried to a jury, but at the close of the evidence both parties filed motion for an instructed verdict. Ap-pellee’s motion was granted, and, in accordance with such instruction, the jury returned a verdict for appellee, and judgment was entered in his favor for the title and possession of the land. From that judgment this appeal was taken.

It was agreed that one J. W. Hubbard was the common source of title. Plaintiff, appellee, offered in evidence a deed from Hubbard, the common source, to S. M. Teel, dated November 12, 1917, which deed retained a vendor’s lien on the land conveyed to secure the payment of a purchase money note in the sum of $2,800, dated November 12, 1917, executed by S. M. Teel, and payable to J. W. Hubbard on December 1, 1917. Appellee also offered in evidence a deed of trust of date October 19, 1928, covering the land, executed by S. M. Teel and his wife, lone Teel, to E. H. White, trustee, for the benefit of appellee, which recited that appellee was the owner and holder of four vendor’s lien notes, three for the sum of $200 each, and one for $334.40, due respectively on October 19, 1929, 1930, 1931, and 1932, given in renewal and extension of the balance due and unpaid on said $2,800 note, said renewal and extension being granted at the request of appellants. Appellee then offered in evidence a general warranty deed of date November 23, 1933, from appellants to him conveying the land involved, reciting as its consideration the four vendor’s lien notes given by appellants in renewal and extension of the original note given in part payment for the land, mentioned above, of which four notes appel-lee was the owner and holder.

Appellants contend, and it is their sole contention, that the deed of November 23, 1933, executed for the recited consideration of their- four notes given in extension and renewal of the original vendor’s lien note, was intended as a mortgage to secure the payment of the four notes mentioned, and that there was a contemporaneous agreement between the grantors (appellants), and the grantee (ap-pellee) that at any time within five years from the date of the deed, the grantors could repurchase the land by paying to' appellee the amount of the notes. Appellant contends that the deed was not intended to be a mortgage to secure the payment of the vendor’s lien notes, but that the deed was understood to be and was executed in consideration of the cancellation and discharge of the said notes; that he accepted the deed as payment of and in discharge of said notes, and no longer claimed anything by reason of .the notes, but claimed and held the land in full payment of same. Appellee was called as a witness by appellants, and among other things, he testified:

■ “Q. The matter was finally paid off down to these four notes that is mentioned in this instrument (the deed) ? A. Yes, sir.
“Q. And they have not been paid off? A. No, sir.
“Q. They are still due and payable? A. Yes, sir.
“Q. And you still hold the notes? A. Yes, sir.
* * *
“Q. At the time you took the deed you took it to secure you in the payment of the notes, didn’t you? A. Sure.
“Q. You held the deed for that purpose? A. Yes, sir.
“Q. And those notes — do you mind if I see them? A. Sure (handing the notes to counsel).
“Q. These are the four notes mentioned in the deed? A. Yes.
“Q. You still hold these, and have ever since they were made to you? A. Yes, sir.
“Q. They were originally made to Teel Brothers, but after the brother’s death, they became your property? A. Yes, sir.
“Q. You have" held those since they were made? A. Yes, sir.
“Q. And you still hold them? A. Yes, sir.
“Q. And they are still due and unpaid? A. Yes, sir.”
On cross-examination, among other things, he testified:
“Q. Who drew this deed? A. I understood that Tom Hubbard drew it.
“Q. Why did he draw the deed? A. To redeem those notes.
“Q. Did you accept this deed then when they brought it back to you and place it of record? A. Yes, sir.
“Q. In cancellation of the notes you had? A. Yes, sir.
* * *
“Q. This is the deed that they gave you to secure your notes on the land? A. To pay those notes.
“Q. If they ever paid the notes, the land was going back to them, and if they didn’t, you got the land; that was the five year agreement? A. Hów is that?
“Q. They gave you this deed reciting those notes, and if they didn’t pay you the notes, you got the land? A. No, sir.
“Q. What was the five year agreement, what was that for? A. After they mailed me this — mailed my papers back, Shady came up there, he was calling on me to furnish him some money. I said ‘Shady’—
“Q. Wait a minute. I didn’t ask you about that. ■ What was that five year agreement that you had in there; what was that? A. If he paid me the money back I had in that deed, I was going to deed it back.”

He further testified that after he got the deed that he told appellant S. M. Teel that he (appellee) did not want the land, and that he was going to rent the land to him (S. M. Teel) and that if he (S. M. Teel) would get up the money that he owed on the notes within five years and pay it to him, that he woulcl deed the land back to him; that he did rent the land to appellant and received the rent regularly for same.

When appellant, S. M. Teel, was testifying, he was asked by counsel for appellants relative to the deed in question, “What was the purpose of that deed?” Counsel for appellee objected to the question for the reason that the deed showed on its face what it was, recited its contractual consideration, and that it could not be varied by any oral agreement or evidence made prior to its execution. To this objection counsel for appellants replied that parol testimony was admissible to show the true consideration for and the nature of the instrument. The court sustained the objection. The witness (ap-pellee) further testified that after he got the deed that he told appellant (S. M. Teel) that he did not want the land, and that he was going to rent the land to him, and that if he would get up the money that he owed on the notes within five years that he (appellee) would deed the land bade to him; that he did rent the land to appellant, and received the rent regularly for .same.

Appellant S. M. Teel testified that he and his family had occupied the land involved for some twenty-one years as their homestead; that he and his wife executed the deed to appellee under which he claims title to the land. His counsel propounded to him this question:

“Q. What was the purpose of the deed?
“Mr. W. J. Wynne: If the court please, asking what the purpose of it is, the deed is in writing; it shows on its face what it is, and the consideration recited is contractual. He couldn’t vary it by any agreement made prior to its execution, or statements.
“Mr. Dawson for appellant: I can vary the terms of it by showing the purpose, to show the true nature of it.
“Mr. Wynne: Where it is contractual ?
“The Court: The purpose of the deed should be declared in its face.
“Mr. Dawson: It can be varied by parol testimony to show what its true purpose was.
“The Court: I will have to sustain the ob j ection.
“Mr. Dawson: We except.”

We think the record discloses that the purpose of the question was to sustain appellants’ contention that the deed was intended to be a mortgage given to secure the payment of the notes, with five years extension of time in which to make the payments. He testified at considerable length as to other matters. Relative to appellee’s testimony that he rented the land to appellant and received the rent regularly, he testified:

“A. We had an agreement in that written (an oral and or written agreement made about the time of the execution of the deed in question leading to its execution) that I wás to let him have it, and I was to pay him for it.
“Q. So the jury will understand, let him have what? A. Let him have the rent in place of the interest.
“Q. Just tell what the provisions of the instrument were ? A. It was provided in there that he was to take the rent in place of the interest, and he was to take the taxes out of that, and also I had any time in five years to take this up.
“Q. Take what up? A. Take up the deed. He was to deed it back to me — or the notes, whichever it was.
* * *
“Q. What was the oral agreement that you had at the time this written instrument you have testified about was made? A. About the same thing.
“Q. Just tell the jury what that oral agreement was? A. Well, I was to pay him the rent in place of the interest, and he was to pay the taxes, and I was to pay it off at the amount of the notes, it would be no more, any time in five years.
“Q. You say to pay him rent after what ? Beginning when ? A. 1932 — or ’33.
“Q. Did you execute any papers under that agreement? A. No sir — yes sir, I executed some papers under that agreement.
“Q. What did you execute, you and your wife, if anything, under that agreement? A. My wife didn’t sign any agreement; just me.
“Q. Did she sign the deed? A. Yes, sir, we signed the deed.
“Q. Was this deed made in pursuance to that agreement? A. Yes, sir.”

There was also evidence that appellee joined with appellant, S. M. Teel, to negotiate a loan from the Federal Land Bank to be secured by a lien on the land in controversy as the property of appellant. However, this was not concluded. Ap-pellee agreed to accept the money derived from this attempted loan in payment of the amount owed by appellant on the notes.

It is believed that the evidence above stated raised the fact issue of whether the deed executed to appellee by appellants was intended as a mortgage to secure the payment of the notes mentioned in the deed, and so the issue should have been submitted to the jury. The court directed the verdict. This was error.

But it is contended by appellee that oral testimony was not admissible to vary the terms of the deed, and particularly so since appellants did not specially plead that the deed was intended as a mortgage; there was no pleading upon which to base the evidence. We overrule this contention. The evidence was admissible under appellants’ plea of not guilty. It is well settled that parol evidence is admissible to prove that a deed, absolute upon its face, was made and intended as a mortgage to secure the payment of a debt, and no special pleading is necessary for its admission. Mann’s Ex’x v. Falcon, 25 Tex. 271, 275. We are cited to the recent case of King v. Hill, Tex.Civ.App., 136 S.W.2d 632, as being directly in point supporting appellee’s contention, and so controlling. The cited case does support appellee’s contention, but it is in conflict with the Supreme Court on this identical question, in Mann’s Ex’x v. Falcon, supra, where the supreme court said: “The doctrine that parol evidence is admissible to prove that a deed, absolute upon its face, was made and intended as a security for debt, and is therefore a mortgage, is too well settled to require the support of a reference to authorities. It is also settled by the repeated decisions of this court, that, under the plea of ‘not guilty,’ in the action of trespass to try title, the defendant may give in evidence any special matter of defense to the' action, whether legal or equitable. In order to admit evidence of such matter of defense, it is not necessary for the defendant to plead it specially.” The supreme court on March 20, 1940, granted a writ of error against the holding in King v. Hill.

For the error pointed out, the judgment must be reversed and the cause remanded for another trial, and it is so ordered.

Reversed and remanded.