author: SPEER, Justice. SPEER, Justice.

text:
    LONE STAR GAS CO. v. BRADFORD.
    No. 14159.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 10, 1941.
    Rehearing Denied Feb. 14, 1941.

      Walker, .Smith & Shannon, of Fort Worth, and Thompson, Knight, Harris, Wright & Weisberg and Adair Rembert, all of Dallas, for appellant.
    Julien C. Hyer and A. W. Christian, both of Fort Worth, for appellee.
   SPEER, Justice.

This is an appeal by Lone Star Gas Company, hereinafter called appellant, from an adverse judgment in a suit instituted by appellee, Ben Bradford, who claimed to have sustained injuries resulting from carbon monoxide because of the negligence of appellant.

It is only necessary to refer to those parts of appellee’s pleadings which are involved in the points relied upon by appel-’ lant for reversal of the judgment entered.

On and prior to November 20, 1935, ap-pellee was a user of natural gas and a patron of appellant, a utility company supplying natural gas to the inhabitants of the City of Fort Worth. Appellant was furnishing to its customers a type of gas designated by the parties as “Joshua” gas; that name was applied because it received a certain treatment at Joshua, where there was mixed into it 19 to 20 per cent nitrogen and .other inert substances, before passing into the distribution lines for delivery to its customers. On the date last above mentioned, appellee procured the services of an employee of appellant to adjust his stoves for the proper use of that type of gas.

Allegations were made that in July or August of 1936,-appellant changed the supply from Joshua gas to what is termed “Shamrock” gas; the latter is described as being undiluted and a heavier quality than that previously furnished; that a different pressure was used by appellant in the use of Shamrock gas and that equipment adjusted for use of Joshua gas' was not suitable for use of the other kind; that the difference resulted in the accumulation of an excessive. amount of carbon monoxide when using Shamrock gas with equipment adjusted for use of the Joshua quality. It is alleged that appellant failed to apprise appellee of the changes made by it and that, having continued the use of his stoves in the manner they had been adjusted, he inhaled the poisonous substance until his blood was so inocculated with it that he sustained serious injuries resulting in the damages prayed for. That the failure of appellant to readjust appel-lee’s stoves for a proper use of the new gas at the pressure furnished and to advise appellee of the changes made in the type of gas furnished are charged to be negligence and a proximate cause of the injuries sustained.

Appellant’s answer consisted of a general demurrer and general denial.

At the conclusion of taking testimony, appellant presented its motion for an instructed verdict; this was denied by the trial court and its refusal is the sole error complained of in this appeal.

Having declined to sustain appellant’s motion for a directed verdict, the court submitted the case to a jury on special issues. The material part of the verdict is: (1) a representative of appellant adjusted appellee’s stoves on November 20, 1935; (2) in July or August, 1936, appellant increased the natural gas content of the gas furnished to appellee; (3 and 8) between September 1, 1936, and March 24, 1938, carbon monoxide in harmful quantities was produced from gas burned in appellee’s heating and cooking stoves; (20) appellant was negligent in not warning appellee that it had increased the natural gas content of the gas it was furnishing; and (21) such negligence was a proximate cause of the injuries sustained by appellee. Upon this verdict judgment was entered in favor of appellee for the amount found by the jury under another inquiry, not referred to above.

Appellant does not contend that its representative did not adjust appellee’s stoves in November, 1935, nor that it did not change from the Joshua to the Shamrock gas in July or August, 1936, nor that it did not readjust appellee’s stoves when the change in the gas was made or any time thereafter; nor does it claim that any information was conveyed to appellee that a change- would be or had been made from one kind of gas to the other. In such circumstances it is sufficient for us to say that the testimony offered by appellee was sufficient to establish these facts.

Appellant contends that there was no evidence tending to show, (a) that the adjustment of the stoves for use of Joshua gas was not suitable for the use of Shamrock gas; (b) that there was no competent testimony offered to show that when the equipment was adjusted for the use of Joshua gas, the change to Shamrock gas would produce more carbon monoxide; (c) that there was no testimony from which it could be found that the adjustment of appellee’s stoves was the same when they produced carbon monoxide as they were when its employee adjusted them; and (d) that there was no testimony of probative value offered tending to establish that the negljgence found by the jury was a proximate cause of the injuries alleged to have been sustained by appellee. Based upon these points, appellant asserts that its motion for a directed verdict should have been sustained.

We cannot agree to the contention made by appellant on the points mentioned. There is some testimony in the record which indicates that an appliance may be so adjusted that it will safely burn either of the two qualities of gas furnished, but it does not appear that any effort was made by áppellant’s employee to make such an adjustment, nor that appellee attempted to have it done. It is reasonable to assume that appellee wanted a suitable adjustment made for use of the gas then being furnished by appellant; nor can we say that appellant knew at the time it made the adjustments that it would change to another kind of gas. Mr. Jones, gas supervisor for the City of Fort Worth, testified to having examined the appliances in appellee’s home in March, 1938, and found two of the stoves emitting harmful quantities of carbon monoxide, and advised that the stoves be not used until adjusted. He qualified as an expert and testified to the quality of each of the two gases used. He said there is a perceptible difference in the adjustment of an appliance for use of the Joshua and the Shamrock gas; that an adjustment suitable for one is not suitable for the other; the use of the two gases is not interchangeable with the same adjustment of appliances; when adjusted for'the use of either, if a change is made in the gas, the appliances should be readjusted. This witness further testified that at the time he inspected the appliances they were emitting harmful quantities of carbon monoxide. Both appel-lee and his wife testified that the stoves had been in the home at all times since the adjustment by appellant’s employee until the day inspection was made by Mr. Jones, and that neither of them had made any changes in the adjustment, nor had any other person, within their knowledge, done so. That the appellant did not notify appel-lee that it was making the change of gas from one quality to the other, nor at any subsequent time. Appellee was stricken with a heart attack in November, 1937, and upon advice of a physiican had a cardia-gram made pf the heart region; appellee was put to bed, where he remained several weeks, under treatment. The doctor said he responded to the treatment slowly; that the cardiagram indicated clearly that he had a blocking of an artery in the heart muscle. Appellee was unable to get out and attend to his business or, as the doctor puts it, get on his feet after his attack, and in March, 1938, when it was discovered that his stoves were emitting carbon monoxide, a laboratory test was made of the blood of both appellee and his wife. It was found that in the wife’s blood there was 10 per cent saturation of carbon monoxide in the red cells, and a 15 per cent saturation in those of appellee. The physicians testified that this condition was harmful and was conducive to the condition found by them in appellee’s heart region.

As above indicated, there is testimony in the record which conflicts with* many of the material matters disclosed by the evidence referred to by us. But in view of the fact that the jury has had a chance to weigh the testimony and has determined it favorable to appellee, we are not at liberty to revise their verdict, when, as in this case, there is any evidence of probative value to support it. It follows that if, as here, issues of fact are presented, the trial court should not direct a verdict.

In Burroughs et al. v. Smith, Tex.Civ.App., 294 S.W. 948, writ refused, it was held that on a motion for a directed verdict, the evidence of the opposite party is taken as true and given most favorable construction and benefit of all reasonable inferences; other evidence being disregarded. Consideration of the weight of the evidence is within the province of the jury and not the trial court. See also City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652.

It is the general rule that if there is such evidence as would cause reasonable men to draw different conclusions, the case should be submitted to the jury. 41 Tex. Jur., pp. 938, 939, sects. 167, 168, 169 and 170.

In other words, if there is evidence of probative value, which would support a verdict contrary to one. requested to be directed, no such directed verdict should be had. If, when submitted to the jury and answered, it is said that, “if discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict.” 17 Tex.Jur., p. 910, sect. 410. The authorities there cited have been followed many times and it seems to be the settled rule in this State. Upon the evidence in this case, some of which we have related above, the jury resolved the facts against appellant’s contention. The evidence being sufficient to support an adverse verdict, it would have been improper for the trial court to direct one in appellant’s favor.

Under the facts of this case, when appellant changed from the use of the lighter diluted to the heavier gas, it was in duty bound to apprise its patrons of the intended change, and use every reasonable precaution to see that persons whom it must have known had their appliances adjusted for use of the Joshua gas, had an opportunity to readjust their appliances in a suitable manner for use of Shamrock gas.

In Lane v. Community Natural Gas Co., 133 Tex. 128, 123 S.W.2d 639, our Supreme Court had under consideration a similar situation to the instant one. At page 642 of 123 S.W.2d the court observed: “Within the last few years gas, like electricity, has been commonly used for many purposes. That it is a powerful and dangerous force, has certain well-known characteristics, and requires care on the part of those who furnish it, is unquestioned.” The court quotes from language previously used in the case of San Antonio Gas & Electric Co. v. Ocon, 105 Tex. 139, 146 S.W. 162, at page 164, 39 L.R.A.,N.S., 1046, where it was said: “ ‘Electricity is a silent, deadly, and instantaneous force; and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use.’ Rowe v. Electric Co., 213 Ill. 318, 72 N.E. 711; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173, 37 S.W. 851 [18 Ky.Law. Rep. 693], 34 L.R.A. 812; Cooley on Torts, 1492.” Other jurisdictions adhere to the same principle as that above announced, more especially as expressed in Ray v. Pacific Gas & Elec. Co., 3 Cal.App.2d 329, 39 P.2d 812.

In one of the reasons assigned by appellant why its motion for a directed verdict should have been sustained, it is urged that there was no evidence tending to show a causal connection between its failure to notify appellee of the change in the quality of gas furnished and the injuries alleged and claimed to have been sustained; that is to say, the appellee did not establish by a preponderance of the evidence that the failure to so notify him of the change was a proximate cause of his injuries. In the nature of things, in such cases as this, it would be very difficult, if not impossible, to prove by direct evidence that it was a proximate cause; but such matters are usually shown by the surrounding circumstances disclosed by all of the testimony. It is undeniably true that appellant’s employee adjusted the appliances for consumption of the Joshua gas; that thereafter appellant made the change to the Shamrock gas, without apprising appellee of its intention to do so; that within a few months appellee had the heart attack; that he did not respond readily to treatment and that shortly thereafter the appliances were emitting carbon monoxide in harmful quantities; that an analysis disclosed the contamination of his blood stream to such an extent as the physicians believed was producing, or at least contributing to, his affliction. These matters presented circumstances to which the jury could look in arriving at an answer to the inquiry of proximate cause. Remotely applicable to the principle announced are the cases of Gulf, C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659; Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847; Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110; Missouri-Kansas-Texas Ry. Co. v. McLain, 133 Tex. 484, 126 S.W.2d 474.

Believing that no reversible error is presented by the assignment of error and the points presented thereunder, they are overruled and the judgment of the trial court is affirmed.

McDONALD, C. J., not sitting.

On Motion for Rehearing.

SPEER, Justice.

Appellant has filed a motion for rehearing, in which it insists that we were in error in holding that the trial court properly refused to give a peremptory instruction in its favor; this is the only point involved in the appeal.

It is earnestly insisted that we have only referred to certain testimony which we considered sufficient, if believed by the jury, to support the verdict returned. It is further argued that we have ignored parts of the witness Jones’ testimony, which contradicted those parts referred to by us, and have not mentioned nor considered testimony given by its witness, Mr. Bacon, which is in direct conflict with that part of Jones’ testimony mentioned. Bearing in mind that the only question before us was whether or not the court erred in refusing the peremptory instruction, it was only necessary for us to determine whether or not there was a dispute of fact in the evidence, for a jury determination. We only referred to certain of the evidence to disclose that there was sufficient evidence before the jury to support its findings. It matters not, in such cases as this, how much evidence there is to the contrary, it was &e function of the jury to weigh the evidence and to give credence to that part believed to have the greater weight. When this has been done, the Appellate Court may not set aside such a verdict, when there is any. evidence of probative force to support it, and substitute its own'opinion for that of the jury. Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824. Many other cases to the same effect could be cited.

Appellant contends that Jones’ testimony referred to by us in the opinion, would not support the jury’s verdict, because, they say, he gave contradictory evidence on cross-examination; that by so testifying, neither of his statements is entitled to credit; citing us to In re Gustav Schaefer Co., 6 Cir., 103 F.2d 237. We do not believe that case announces the correct rule in Texas. We think that under such circumstances a jury question is raised, and the jury may. reconcile the conflict, if it can, and determine which, if either, statement is true. New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, writ refused; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619, writ dismissed, correct judgment; Heckert v. American Casualty Co., Tex.Civ.App., 129 S.W.2d 424.

We believe we have properly disposed of the question involved, and have added these additional remarks and authorities because of the insistence of counsel for appellant, in their motion for rehearing.

The motion is overruled.

McDONALD, C. J., not sitting.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    STATE ex rel. BINZ et al. v. CITY OF SAN ANTONIO et al.
    No. 10949.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 12, 1941.

      Moursund, Ball, Moursund & Bergstrom, Van H. Howard, Jr., S. E. Roberts, and John R. Shook, all of San Antonio, for appellants.
    J. I. Kercheville, Henry B. Dielmann, and J. Walter Feigenbaum, all of San Antonio, for appellees.
   NORVELL, Justice.

» This is an action in the nature of quo warranto brought under Articles 6253 et seq. of Vernon’s Ann.Civ.Stats., by the State of Texas, acting through the District Attorney of Bexar County, upon the relation of Melvin Binz and others, against the City of San Antonio and its governing officials, asserting the invalidity of a purported annexation of territory adjacent to the City of San Antonio.

Trial was to the court without a jury and judgment rendered for the respondents. The territory in dispute was declared to be within the bounds and limits of the City of San Antonio.

The State and the relators have appealed.

There is no dispute as to the facts. The. City of San Antonio is a home rule city operating under Article XI, Section 5, of the Texas Constitution, Vernon’s Ann. St., and Chapter 13, Title 28, 1925 Revised Civil Statutes and amendments thereto (Articles 1165 — 1182f, Vernon’s Ann.Civ.Stats.), having adopted a charter in accordance with the constitutional and statutory provisions above mentioned. The charter of the City of San Antonio contains provisions for the annexation of adjacent territory (Paragraph 2, Section 2, Charter of San Antonio) as authorized by Sec. 2, Art. 1175, Vernon’s Ann.Civ.Stats.

In accordance with the provisions of the City Charter, the Board of City Commissioners of San Antonio, on April 29, 1940, passed a resolution ordering the introduction and reading of an ordinance providing for the annexation of the territory in dispute here. Publication of the proposed ordinance was ordered, so as to give thirty days’ published notice before final passage of the ordinance, as required by the City Charter. On May 31, 1940, the ordinance of annexation was finally passed by the governing body of the City of San Antonio.

In the meantime, on May 3, 1940, a petition signed by 53 residents of the territory sought to be annexed by the City of San Antonio was presented to the County Judge of Bexar County, requesting that ah election be called for the'purpose of submitting to the qualified voters the question of the incorporation of the Town of Olmos Terrace under the provisions of Chapter 11, Title 28, 1925, Revised Civil Statutes, Articles 1133-1153, Vernon’s Ann.Civ.Stats. The territory sought to be incorporated was identical with that described in the resolution and ordinance of annexation of the City of San Antonio. The County Judge, on May 6, 1940, ordered the requested election, which resulted in a vote favorable to incorporation. On May 20, 1940, the County Judge entered an order declaring the town of Olmos Terrace duly incorporated under the provisions of Chapter 11, Title 28, 1925, Revised Civil Statutes. It was agreed by the parties that the population of the so-called town of Olmos Terrace was 2200, and that the proceedings relating to the Incorporation were in accordance with applicable statutory provisions.

As above pointed out, annexation proceedings were commenced by the City of San Antonio on April 29, 1940, but were not completed until May 31, 1940. Incorporation proceedings of the Town of Olmos Terrace were not commenced until after April 29, 1940, but were completed on May 20, 1940. In passing upon the validity of the conflicting jurisdictional claims here presented, are we to be governed by the date of commencement or the date of completion of the annexation or incorporation proceedings involved?

This question is answered by the case of State of Texas ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41, in which the Supreme Court held that principles governing the jurisdiction of judicial tribunals over the subject matter of litigation were applicable to cases of the kind and character presented here. The Baker case is authority for the proposition that the municipal authority, be it one having a legal existence or in the process of organization, which first commences legal proceedings asserting authority over a given territory, thereby acquires a jurisdiction over the same which cannot thereafter be defeated by a subsequent attempted exercise of jurisdiction by a similar municipal organization.

As the territory here involved was not within the limits of another municipal corporation on April 29, 1940, the annexation proceedings of the City of San Antonio were valid and must be upheld. It follows that the subsequent attempt to incorporate the town of Olmos Terrace was ineffective and void.

The judgment of the trial court was correct and it is accordingly affirmed. Other authorities supporting this holding are: Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Baker v. State, Tex.Civ.App., 26 S.W.2d 324; Colquhoun v. City of Tucson, 55 Ariz. 451, 103 P.2d 269; People ex rel. Hathorne v. Morrow, 181 Ill. 315, 54 N. E. 839; State ex inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, 53 S.W.2d 271; State ex rel. Johnson v. Clark, 21 N.D. 517, 131 N.W. 715; Popenfus v. City of Milwaukee, 208 Wis. 431, 243 N.W. 315; Corpus Juris, Vol. 43, p. 83, sec. 23.

Affirmed.


author: WALTHALL, Justice. WALTHALL, Justice.

text:
    ARNOLD v. KINSEY et al.
    No. 3973.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 2, 1941.
    Rehearing Denied Jan. 23, 1941.
    Mead & Metcalfe, of Marfa, for appellant.
    W. Van Sickle and A. E. Owens, both of Alpine, for appellees.
   WALTHALL, Justice.

Al Kinsey, as plaintiff, brought this suit against R. W. Arnold and Leonard Henderson, trustee, defendants, to enjoin recovery on two prominssory notes, bearing interest, for $1,500 each, the notes executed by Roy Sims and Al Kinsey, and payable to R. W. Arnold, secured by a deed of trust executed by Al Kinsey to Leonard Henderson as trustee on certain town lots in the town of Alpine, Texas, and fully described in the petition, to secure the payment of said two notes.

At the request of Arnold, Henderson, the trustee in the deed of trust, advertised the trust property for sale, whereupon Kinsey filed suit and alleged, in effect, that the notes were given without any consideration and were void, and prayed that the deed of trust be cancelled and the cloud cast on the trust property be removed, and that a temporary injunction be granted restraining the sale of the trust property. The injunction was granted and the sale abandoned.

Arnold thereupon filed an answer and cross-action alleging the execution of the two notes and the deed of trust.

Roy Sims filed answer on Arnold’s cross-action and alleged and showed that he had received a discharge of all claims against him through bankruptcy proceedings.

Kinsey further answered Arnold’s cross-action ancl alleged, in substance, that the two notes in question were accommodation notes; that" Sims had become indebted to Arnold, that Arnold requested him, Kinsey, to sign the notes, as an accommodation to him; that no consideration passed between them for his signature; that Arnold verbally promised him that he would not be expected to pay the notes; that he, Arnold, wanted to borrow money on the notes and wanted an additional name for that purpose ; that he executed the deed of trust with the same understanding as above.

Arnold replied to thé above pleading of Kinsey and denied that he ever made such agreement; further alleged that subsequent to the giving of the notes and deed of trust, and before the maturity of the notes, at Kinsey’s request he extended the due date of one of the notes, and pleaded such extension as sufficient consideration for Kinsey’s signing the notes, and as relieving any infirmity, if any, in signing the notes.

The case was tried with a jury and submitted upon two special issues, one of which was whether Arnold requested Kinsey to sign the two notes sued upon, and the second issue was whether Kinsey signed the notes under an agreement with Arnold that he (Kinsey) was not to pay the notes. Both issues were answered by the jury favorably to Kinsey.

The court overruled Arnold’s general and special exceptions to Kinsey’s answer and cross-action, and entered judgment on the verdict that Arnold take nothing by. his cross-action against Kinsey, and that Kinsey have judgment perpetually enjoining the collection of the notes and the foreclosure of the deed of trust, and removing the cloud from title.

Arnold filed and presented a motion for a new trial, and an amended motion for a new trial, and in the latter set up misconduct of the jury as to matters alleged as occurring in the jury room. The court heard the evidence as to the misconduct, and overruled the motions. The court directed that a full statement of the evidence on the matter of misconduct of the jury be sent, up with the record.

Arnold duly perfected this appeal and filed assignments of error, and presents thereunder three propositions.

Appellee Kinsey has filed no brief in this case.

Appellant’s three propositions refer to the matter which is alleged to have, occurred in the jury room, and complained of by. appellant in his motion for a new trial, are closely connected, raise the question of misconduct of the jury, and, if misconduct, does it show reversible error. The court overruled appellant’s motion for a new trial on the ground of the misconduct complained of.

Appellant discusses the three propositions together, and we shall do the same.

The material evidence is substantially as follows:

Kinsey testified: Arnold presented the notes to Kinsey and explained that he would like to get another name on the notes that it would make it look better; thought he might want to borrow a little money on them, and it would help him that much if Kinsey would sign them. Witness did not owe Arnold anything. At that time the notes had been signed by Roy Sims. Kinsey signed both notes on that occasion. Arnold said to Kinsey in conversation that “he didn’t expect to call on me (Kinsey) for any payment of them, or any part of them — that it was only an accommodation to him.”

Later Arnold asked Kinsey if “he would put up some kind of security on those notes,” said “he had been unable to borrow any money on them but with a little additional security he would be.” Said Arnold asked witness again, saying that “a deed of trust on the property (witness had referred to in his first conversation as his homestead) would be all right in law.” Question: “Did he at that time say anything further about not expecting you to have to pay the notes?” Answer: “Only as an accommodation to help him out of a tight, that he was short on cash.” Witness said, “with that understanding with Arnold he executed the deed of trust” on the property involved.

Kinsey at length detailed a c.onversation with Arnold with reference to a car of wine which Arnold said Kinsey' was to have; that while in no danger, the wine would reimburse him for anything he had to pay, should he ever have to pay the notes. We think it not necessary to state the conversation and we omit stating it. Witness never got the wine, said it was “carted out” and sold elsewhere.

Kinsey testified on cross-examination: Arnold brought the notes to him and said he wanted him to sign them to make' it look better, and as an accommodation to Arnold, and said “I wouldn’t ever have to pay it.” Did not know that Roy Sims had been borrowing money from Arnold, or that he was going to give Arnold notes for borrowed money. Did know the deed of trust was being extended; did not know the note was being extended; read in part the instrument he signed (deed of trust) ; did not read it because it was an accommodation paper. (Witness testified on cross-examination at length along the same line as on direct examination, which we omit, except where apparently there is an addition thereto.)

Witness was not a partner to Sims — was just a clerk, was not getting any of the profits. (Much has been said about the wine, which we omit.)

Witness said he got no profit out of anything.

R. W. Arnold testified at length about the Sims’ notes and the conversation with Sims as to who was to sign them; ’that Sims said he could get A1 Kinsey to sign the notes and he (Arnold) said all right. Witness said he “did not know when Kinsey signed the notes, * * * it (one of the notes) was signed when I got the notes. I don’t know who gave them to me.” Question: “State whether or not when the notes came back to you (from Sims) Mr. Kinsey’s name was on the notes.” Answer: “Yes, sir.” Witness denied that when Kinsey signed that note he told him “he was not going to have to pay it; did not say anything about that, or that I wanted him to sign it without him being responsible to make it look better; I just asked him to sign this and fix it up in a business like way.”

Arnold testified at length in contradiction to the statements of Kinsey as to his contemplating borrowing money on the notes, or to Arnold giving Kinsey security on a car of wine to indemnify him for signing the note. Witness said he had no interest in the wine or right to place it to Kinsey.

Arnold testified that one of the notes was extended; Judge Milam wrote it on the back and witness signed it. Kinsey knew of the extension and the reason for doing so.

We have read the evidence of both Kinsey and Arnold. Their evidence is in direct contradiction to each other in every material respect and we see no useful reason for further quoting therefrom.

The court heard the evidence, made no findings of fact, but expressed his opinion that both the law and facts, as well as the verdict, are with A1 Kinsey, and so entered judgment.

Now on the question of the misconduct of the jury. Sam Nelson was one of the jurors who tried the case. He testified that on issue No. 2 submitted'by the court the result of the first ballot was eleven in favor of answering “Yes” to one “No,” Nelson being the one opposed. There was a discussion in the jury room as to the evidence on the issue; later No. 2 was unanimously answered “Yes.” The question was asked the witness: “Whether or not this statement, or the substance of it, was made by any one of the jurors in the discussion as to their verdict after that first ballot was taken: ‘that Mr. Arnold was a shrewd business man, much smarter than A1 Kinsey.’ Do you remember if that statement was made?” The witness said “That he was a shrewd business man and smarter. I don’t think that sentiment was brought out. It was probably mentioned that he had been more successful in a business way.” Question: “Was it stated that he was a shrewder business man than Mr. Kinsey?” Answer: “Well, I don’t know.”

Several similar questions were asked the witness, but the record does not show that the witness made any definite statement to the questions.

Again, the question was asked the witness: “Was anything there said about Mr. Kinsey being a poor man and having put up his home?” Answer: “Yes, sir.” Question: “That was said by these jurors?” Answer: “Yes, sir.” Question: “Was anything said in the jury room about recalling Mr. Arnold and getting his testimony?” Answer: “Yes, sir, I did.”

Much is said in that connection which we omit. Witness was contending that Arnold had denied that he had asked Kinsey to sign the notes, and the other jurors were contending that Arnold made no denial. The contention also involved the question whether Arnold had promised Kinsey that he would not make him pay the notes.

The juror said that he did not directly request the foreman to have the evidence reproduced, but that “he asked about it.” The juror said, “they said,” the jurors giving reasons for not recalling the evidence, it was Saturday night, etc.

We have considered the several matters assigned as misconduct of the jury, and have concluded that each of them is too indefinite and too uncertain to constitute misconduct. To say that something was probably said about a matter is too indefinite. We have found no reversible error.

The case is affirmed.

SUTTON, J., not participating.

On Rehearing.

WALTHALL, Justice.

In the opinion, in considering the question of misconduct of the jury, we thought, and so stated, that the evidence was too indefinite to show misconduct.

The jury stood eleven to one on an issue then being considered and the testimony given by one of the parties. The one juror wanting to have the evidence reproduced or reread made no request to the court to have the desired evidence reread to the jury, but simply made a request to the jury in the jury room that the evidence of the witness be reread to the jury.

The evidence of the juryman on question and answer on what occurred is as follows, the juror having said he wanted the evidence reproduced:

“Q. You made that request to the foreman? A. Yes, sir. Not directly to him, I guess, but I asked about—
“Q. What was said? A. They said it would be necessary for it to be transcribed and it likely would be pretty late that night before it could be done and get that information before the jury. They said it would take until'about 12 o’clock. As I remember it, this was on Saturday and they said it would take until about 12 o’clock that night to get it transcribed.
“Q. Was anything said about the court wouldn’t hold that long? A. I was told that I would probably receive a reprimand from the court for not having paid more strict attention to the evidence as it was presented if I requested that the evidence be sent in.”

The juror testified that he did not know that the jurors had a right, on a request to the court, to have the’ stenographer’s notes reread to him, and that had he known, he thinks he would have insisted on having it done.

After the above discussion the juror agreed with the others on the verdict.

appellant complains that the jury alluded to, or stated as a fact, Kinsey was a poor man and had put up his home, and that Arnold was a more successful business man than Kinsey; that there was no evidence to support the statement, and that the reference to the matter stated constituted misconduct and reversible error.

On the trial Kinsey testified Arnold asked him if he would “put up some kind of security on those notes”; that with a little additional security he would be enabled to borrow money on them. Kinsey said: “I told him that I didn’t have anything to put up except a home.”

On the hearing on the motion for a new trial on account of misconduct of the jury, juror Sam Nelson testified for appellant as to what occurred in the jury room:

“Q. Whether or not this statement, or the substance of it, was made by any of the jurors in the discussion as to their verdict, after the first ballot was made, to this effect: ‘That Mr. Arnold was a shrewd business man, much smarter than A1 Kinsey.’ Do you remember that statement was made. A. That he was a shrewd business man and smarter ? I don’t think that statement was brought out. It was probably mentioned in a way.
“Q. Was it stated that he was a shrewder business man than Mr. Kinsey ? A. Well, I don’t know.”

Some other question similar to the above but about the same in substance was asked the juror, to which the juror replied: “Well, I don’t remember that that discussion took place.”

Appellant submits that in the jury room some of the jurors, in order to induce the juror Sam Nelson to agree to a verdict, stated that “A1 Kinsey was a poor man and was putting up his home,” and that when that statement was made Nelson agreed to join the other eleven jurors in the verdict.

The evidence of Sam Nelson on the question of misconduct shows the following:

“Q. Was anything there said (jury room) about Mr. Kinsey being a poor man and having put up his home? A. Yes, sir.”

Kinsey had put up his homé and in doing so had said that his home was all he had. The evidence does not show that he had any other property.

The court found against appellant on the issue of misconduct of the jury.

We think no reversible error is shown, and the motion is overruled.

SUTTON, J., did not participate.


author: GRAVES, Justice.

text:
    NORMANDIE OIL CORPORATION v. OIL TRADING CO., Inc.
    No. 11011.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 17, 1940.
    Rehearing Denied Jan. 30, 1941.
    C. A. Leddy (of Fulbright, Crooker & Freeman), of Houston, Wm. N. Bonner, Virgil Childress, and Lawler, Wood & Childress, all of Houston, for appellant.
    Sewell, Taylor, Morris & Connally, Ben G. Sewell, and J. Toll Underwood, all of Houston, and John S. Keith and Joseph W. Murphy, both of New York City, for appel-lee.
   GRAVES, Justice.

This appeal is from a $19,437.51 judgment of the 55th District Court of Harris County entered upon a jury’s verdict in response to special issues, as well as upon independent findings of the court itself from what it termed “the undisputed evidence”, in favor of the appellee, a New York Corporation, and against the appellant, a Delaware corporation, with a permit to do business in Texas, as the money so determined by court and jury to be due the appellee as a broker’s commission from the appellant for the former’s having been the procuring cause of the sale of “the Krohn-oil-and-gas-lease” in the Conroe oil field in Montgomery County, Texas, by the Alpha Petroleum Company to the Tidewater Oil Company, under an alleged verbal contract (both made and performed in New York State) for such service, of January, 1934, between the appellee, and the predecessors in obligation to pay therefor of the appellant.

The cause of action, so declared upon by and so matured into the appellee by that judgment, was based upon a sale that admittedly occurred on or about April IS, 1935, Of such Krohn lease by the Alpha Petroleum Company to the Tidewater Oil Company for .$900,000, $550,000 in cash, and the remaining $350,000 payable out of ¼ of ⅞ of the oil to be thereafter produced therefrom; the recovery so awarded it rested upon averments and consequent findings to the effect that the appellee’s services to appellant’s predecessors in obligation, together with its negotiations for them in that behalf, had been the procuring cause of the stated sale; that the Alpha Petroleum Company had thereafter conveyed all of its properties to the appellant, which had in consideration therefor assumed all the Alpha Company’s liabilities, including the one to the appellee herein recovered for by it, and that thereafter the Alpha had been dissolved; and finally, that the individual defendants the appellee sued herein with the appellant had been officers and directors of the Alpha Company at the time of its. recited dissolution.

The appellant, along with its codefend-ants, in addition to demurrers and denials, general and special, answered below by these, among other, special pleas:

“(1) That plaintiff’s claim for commission is void, because plaintiff was not a licensed real estate broker, as required by certain statutes of New York which declared void and unenforceable all contracts made and claims for commission asserted by an unlicensed real estate broker for services rendered in New York.
“(2) That plaintiff, a foreign corporation, had engaged in business in Texas without a permit to do so, in violation, of the statutes of Texas, and was prohibited by such statutes from maintaining this suit.
“(3) That plaintiff was not the procuring cause of the sale of the Krohn lease by Alpha to Tide Water, on April 15, 1935, but that long after plaintiff’s negotiations with' Tide Water had terminated unsuccessfully, said sale was effected solely through the ¡efforts of Alpha’s general counsel, Wm. N. Bonner, as an emergency measure to raise funds for the settlement of a lawsuit which; as a result of a lis pendens notice thereof filed shortly theretofore, clouded the title to all of Alpha’s oil properties in Texas; and that said attorney was paid a commission for such services.
“(4) That any efforts made by plaintiff to sell the Krohn lease to Tide Water were made under and by virtue of a written contract between Alpha and plaintiff, which terminated on December 31, 1934, without any sale having been effected; that plaintiff had negotiated a contract, dated November 10, 1932, between Alpha and Tide Water, wherein Alpha had agreed to sell and Tide Water had agreed to buy the oil produced from Alpha’s leases at Conroe during the period from January 1, 1933, to December 31, 1934, and Alpha had granted to Tide Water the right to purchase any of said leases, including the Krohn lease, at the highest price offered by another during said period; that by its said contract with plaintiff Alpha agreed in writing 'to pay plaintiff one cent per barrel on all oil sold thereunder and a commission of 2½ per cent on the sale price of any of said leases that might be sold to Tide Water during, said period; that Alpha was willing to sell the Krohn lease for $1,300,000.00 and so informed plaintiff in the summer of 1934 while said contract was still in force, but the only offer ever obtained by plaintiff from Tide Water for the purchase of said lease was one for- $850,000.00 payable half in cash and half in oil from said lease, which offer was made in the summer of 1934 and promptly rejected by Alpha; and that thereafter Alpha had no other dealings or negotiations with plaintiff regarding the sale of said lease.”

The special issues and the jury’s answers were as follows:

“No. 1. Do you find from a preponderance of the evidence that George Frankel in the month .of January, 1934, employed plaintiff to negotiate a sale of the Krohn lease to the Tidewater Oil Company? Answer: ‘Yes’.
“No.l-A. Do you find from a preponderance of the evidence that in so employing the plaintiff, George Frankel purported to act for the Alpha Petroleum Company ? AnT swer: ‘Yes’.
“No. 2. Do you find from a preponderance of the evidence that after George Frankel so employed plaintiff to negotiate for the sale of the Krohn lease to the Tide Water Oil Company, if you have so found, all of the officers; and directors of Alpha Petroleum Company, except-Friedman, were fully informed as to such employment? Answer: ‘Yes’.
“No. 3. Do you find from a preponderance of the evidence that all of the officers and directors of the Alpha Petroleum Company, except-Friedman, after being so informed of the employment of plaintiff by George Frankel, if you have so found, acquiesced in and approved of such employment? Answer: ‘Yes’.
“No. 4. Do you find from a preponderance of the evidence that after the officers and directors of the Alpha Petroleum Company, other than Friedman, were advised of such employment of plaintiff and its efforts and activities in negotiating such sale of the Krohn lease to the.Tide Water Oil Company, if they were so advised, they gave plaintiff instructions in respect to negotiating the sale of said lease to said Tide Water Oil Company? Answer: ‘Yes’.
“No. 5. Do you find from a preponderance of the evidence that the officers and directors of Alpha Petroleum Company, other than Friedman, knew of the efforts of plaintiff to negotiate the sale of the Krohn Lease to the. Tide Water Oil Company? Answer: ‘Yes’.
“No. 6. Do you find from a preponderance of the evidence that the defendant, Alpha Petroleum Company, acting by and through its officers- and directors, other than Friedman, knowingly accepted the benefit of plaintiff’s services, if any, in negotiating the sale of the Krohn Lease to the Tide Water Oil Company? Answer: ‘Yes’.
“No. 7. Do you find from a preponderance of the evidence that the efforts, if any, on the part of plaintiff to sell the Krohn lease to- the Tide Water Oil Company was the procuring cause of such sale? Answer: ‘Yes’. ■
“No. 8. What do you find from a preponderance of the evidence was the reasonable cash market valúe in New York of the $350,000 oil payment due Alpha Petroleum Company by Tide Water Oil Company on April 15, 1935? Answer: ‘65%’.
“No. 9. What do you find from a preponderance of the evidence was the usual, customary and reasonable broker’s commission in the City of New York during the years 1934 and 1935, for negotiating a sale of an oil lease substantially similar to the Krohn lease? Answer: ‘2½%’.
“No. 10. What do you find from a preponderance of the evidence was the usual, customary and reasonable broker’s commission in the City of Houston, Texas, during the years 1934 and 1935 for negotiating a sale of an oil lease substantially similar to the Krohn lease? Answer: ‘2½%’.
“No. 11. Do you find from a preponderance of the evidence that the minds of George Frankel and Harvey Carter met in agreement, in the employment inquired about in Special Issue No. 1, if you have answered that Frankel did employ him, that a compensation should be paid to Carter’s. company other than the 2½% provided in the written contract of December 5, 1932? Answer: ‘We do’.
“No. 11-A. What do you find from a preponderance of the evidence would, be a fair and, reasonable compensation for the services . of the plaintiff, if. any, upon sale of the. property in controversy? Answer: ‘2½%’.” ’
“Defendants’ Specially Requested Issue No. 1.
, “If you have answered Special Issue No. 1 in the affirmative, then you will answer the following question: Do you find from a preponderance of the evidence that subsequent, to the .offer of Tide Water Oil .Company t.o purchase the Krohn lease for $800,000 or $850,000, as you may find the facts to be, George Frankel notified Harvey Carter, president of Oil Trading Company, that said lease was withdrawn from •the market? Answer: ‘No’.
“Defendants’ Specially Requested Issue No. 2.
1 “Do you find from a preponderance of the evidence that the negotiations and efforts of Wm. N. Bonner were the procuring cause of the sale of the Conroe -léase to the Tidewater Oil Company? Answer:- ‘No’.
“Defendants’ Specially Requested Issue No. 3.
“Do you find from a preponderance of the evidence that from the date the Oil Trading Company began negotiations to sell thé Krohn lease to the Tide Water Oil Company, a reasonable time had elapsed 'thereafter for it to effect a sale of said lease to Tide Water Oil Company before said lease was actually sold to said com.pany? Answer: ‘No’.”
The appealed-from judgment was against appellant alone, because it had both acquired all the assets of and assumed all the liabilities of the Alpha Company (which, if not the alter ego in all matters material here of the different members of the Frankel family, had been at least owned and controlled ’by them) prior to the Alpha’s stated dissolution; wherefore, the Normandie only has prosecuted this appeal, and the undisputed facts thus make plain the implications of the quoted special issues and the answers thereto with reference to it, and to the contentions it makes upon this appeal.

In this court, as below, the appellant’s main contentions are the four copied supra from its brief, together with many other subsidiary ones, along with a number of added objections of both substantive and procedural kinds.

Obviously, its two quoted pleas in bar of the whole suit against it stand at the threshold of appellate review; it concretes them into these two propositions:

“First. The alleged oral contract upon which this suit is based is void and unenforceable under the laws of New York, and this suit thereon cannot be maintained in Texas, because at the time said contract is claimed to have been made and performed sections 440, 440-a, 442-d, and 442-e of article 12-A of the Real Property Law of New York, Consol.Laws, c. 50, required any person who, for a commission, offered for sale or sold for another an estate or interest in real estate, to first procure a license as a real estate broker, and declared void and unenforceable all claims for commission by any person not so licensed; and the evidence is undisputed and it was stipulated that plaintiff was not so licensed, that it is a citizen and resident of New York, and that by the terms of the alleged contract it claims to have been employed in New York to sell to a resident of New York, for a commission, a producing oil and gas lease on land in Texas, which is an ‘estate or interest in real estate’ within the aforesaid statute.
“Second. This suit for a broker’s commission may not be maintained in Texas because plaintiff, a corporation incorporated under the laws of New York, seeks by this suit to recover the reasonable value of services claimed to have been rendered by it as a broker, and the 'evidence is undisputed that a substantial part of such services was rendered by plaintiff within the State of- Texas, notwithstanding the fact that plaintiff never at any time has been granted a permit to do business in Texas; and consequently the maintenance of this suit is expressly prohibited by Arts. 1529 and 1536 of the Revised Civil Statutes [Vernon’s Ann.Civ. St. arts. 1529, 1536].”

The appellee interposes these respective answers thereto:

“The oral contract upon which this suit is based is not void and unenforceable under the laws of the State of New York and this suit can be maintained in Texas, notwithstanding the fact that appellee had not obtained a real estate broker’s license pursuant to Section 440-a of the Real Property Law pf New York, for the reason that no such license was required, in that by (this) specific legislative enactment in New York, an oil lease is treated as personal property for all purposes of the General Laws of New York, except taxation, to-wit:
“ ‘Oil wells and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation’ (Section 39, General Construction Law).”
“The maintenance of this suit is not prohibited by Articles 1529 and 1536 of the Revised Civil Statutes of Texas, because this suit was brought for the purpose of enforcing a contract which was entered into in the State of New York and which was performed in the State of New York. The plaintiff was not transacting business within the State of Texas, as contemplated by the provisions of said statutes, simply because some acts merely incidental to the performance of said contract were done in Texas.”

. Despite having been almost persuaded by the arguments of appellant’s able counsel, this court, after mature consideration, is constrained rather to exercise its authority in upholding the appellee’s counter-positions; both these pleas in bar are accordingly overruled.

In support of appellee’s first answer, these authorities are collated: Agricultural Law of 1909, General Construction Law, Real Property Law, Village Law, Consolidated Laws of New York, Chapters 1, 22, 50, 64; Section 110 of the General Construction Law; People v. New York Central, 156 N.Y. 570, 574, 51 N.E. 312; O’Keefe v. Dugan, 185 App.Div. 53, 54, 172 N.Y.S. 558, unanimously affirmed in 225 N.Y. 667, 122 N.E. 887; Matter of Hazelwood Oil Co., 195 App.Div. 23, 185 N.Y.S. 809; Wagner v. Mallory, 169 N. Y. 501, 62 N.E. 584; Sec. 440, Real Property Law of N.Y.; Wagner v. Mallory, 41 App.Div. 126, 58 N.Y.S. 526; Buck v. Cleveland, 143 App.Div. 874, 879, 128 N.Y.S. 864; People v. Ashworth, 220 App. Div. 498, 502, 222 N.Y.S. 24; Shepherd v: McCalmont Oil Co., 38 Hun 37, 40; Reeland v. Moore Oil Co., 242 App.Div. 462, 275 N.Y.S. 489 ; 59 Corpus. Juris, Statutes, 946, 948; 48 New York State Department Reports 576; 54 New York State Department Reports 157; 1934 N.Y. Attorney General Reports 228; Bullock v. Cooley, 225 N.Y. 566, 571, 122 N.E. 630; Matter of Lawrence-Cedarhurst Bank, 247 App.Div. 528, 532, 288 N.Y.S. 301, affirmed, 272 N.Y. 646, 5 N.E.2d 374; People v. Dilliard, 252 App.Div. 125, 131, 132, 298 N.Y.S. 296; Hughes v. State, 134 Tex.Cr.R. 175, 114 S.W.2d 566; Railroad Commission v. Texas R. R. Company, Tex.Civ. App., 42 S.W.2d 1091; United States v. Sherebeck, 27 Fed.Cas. 1062, No. 16,275; Weingast v. Rialto Pastry Shop, 243 N.Y. 113, 117, 152 N.E. 693; Pritchard v. Norton, 106 U.S. 124, 129, 1 S.Ct. 102, 27 L.Ed. 104; Bernard Gloeckler Co. v. Baker Co., Tex.Civ.App., 52 S.W.2d 912; Belle Springs Creamery v. Schultz, Tex.Civ. App., 69 S.W.2d 564.

Authorities upholding the second one may be cited as follows: Security Co. v. Panhandle Nat. Bank, 93 Tex. 575, 57 S.W. 22; Nelson v. Detroit Co., Tex.Com.App., 56 S.W.2d 860; Jackson Woolen Mills v. Moore, Tex.Civ.App., 154 S.W. 642; Wilson v. Peace, 38 Tex.Civ.App. 234, 85 S.W. 31; Lynch Davidson v. Denman Lumber Co., Tex.Civ.App., 272 S.W. 803; Restatement of Conflicts of Law, § 331; 2 Corpus Juris, p. 516, 2 C.J.S., Agency, § 65; Sargent v. Barnes, Tex.Civ.App., 159 S.W. 366; New State Land Co. v. Wilson, Tex.Civ.App., 150 S.W. 253; Hilker v. Agricultural Corp., Tex.Civ.App., 96 S.W.2d 544; Nelson v. Detroit Security Co., Tex.Com.App., 56 S.W.2d 860; 23 Am. Jurisprudence, § 371, p. 356; Lakeview Co. v. San Antonio Co., 95 Tex. 252, 66 S.W. 766; Security Co. v. Panhandle Nat. Bank, 93 Tex. 575, 57 S.W. 22; Latham Co. v. Louer Bros., Tex.Civ.App., 176 S.W. 920; Phillip A. Ryan Co. v. Ball, Tex. Civ.App., 177 S.W. 226; American Mfg. Co. v. Skidmore Co., Tex.Civ.App., 170 S.W. 128; White Sewing Machine Co. v. Sneed, Tex.Civ.App., 174 S.W. 950: Barcus v. J. I. Case Threshing Machine Co., Tex.Civ.App., 197 S.W. 478, writ dismissed; King V. Monitor Co., 42 Tex.Civ.App. 288, 92 S.W. 1046; Memphis Co., v. Wilson Co., Tex.Civ.App., 244 S.W. 1062; 14A Corpus Juris p. 1281, 20 C.J.S., Corporations, § 1839; 5 Thompson on Corporations, Second Ed., §§ 6715 and 6717.

In other words, it is held (1) that the previously described oral contract herein sued upon was not void ab initio under the laws of New York because of the admitted fact that the appellee, when making it with appellant’s predecessor, was not then licensed as a real estate broker under the laws of that state; and (2) that its maintenance in Texas was not prohibited by this State’s R.S. Articles 1529 and 1536, because the appellee was a New York corporation without a permit to do business in Texas, and the contract, as declared upon, was one for a broker’s commission for the appellee’s having been the procuring cause of the sale of an oil and gas lease in this state.

An extended exposition of the principles upon which these conclusions have been rested is interdicted by the demands upon this court’s time from other pressing business before it, but it ventures to point out what, in its view, seem to be the vices lying at the bases of appellant’s two pleas:

(1) The claimed invalidity of the contract is based upon isolated “Secs. 440, 440-a, 442-d, and 442-e, of Art. 12-A, of the Real Property Law of New York”, as disassociated from “Sec. 39 of the General Construction Law”; whereas these statutes seem to this court to be interrelated and integral parts of one New York system of statutory codification and construction, and, when so regarded and applied to this situation, to show that the subject matter of this contract, an oil lease, whether in Texas or elsewhere, was simply treated under the New York laws as personal property for all purposes, except those of taxation. The holdings and statutes cited under this question, supra, seem to remove judicial doubt as to the soundness of such a construction.

(2) The insistence that rendition of a substantial part of the declared-upon services within the State of Texas brought the suit under the contravention of R.S. Articles 1529 and 1536 loses sight of determinative findings by the jury, on sufficient evidence, of the facts the other way, in that such acts as were performed in Texas in furtherance of the contract were merely incidental to its performance, hence were permissible under the authorities already cit,ed on this question and did not constitute the transaction here of such prohibited business; indeed, those holdings settle the rule to be that Article 1536 does not deny all corporations not having a permit to do business in Texas the privilege of maintaining suits here — on the contrary, it only bans such as do or have done business in this state in violation of Article 1529; that is, when the real business done is and has occurred elsewhere — as in this instance, where the contract was made and in all substantial respects performed and acted under in New York — mere incidents to those outside acts that may have -been done in Texas would not constitute such a violation ; especially so here, .when the undisputed testimony showed that this appellee had never acted as a broker in any sale made in Texas of a product to be delivered there; on the contrary, that all its business, and particularly that with reference to this contract, had been transacted in New York, and that its president, in pursuance of that policy, had only been in Texas a few times prior to the conclusion of this deal, at only one of which anything was said or done about it.

Wherefore, under the findings and evidence, it appears that this contract was one made in New York, to be performed in New York, and was in all structural and major things actually performed there; its essential character as such was not destroyed because as a mere incident thereto the appellee’s president, while in Texas on the last of the visits just mentioned, during its pendency and before the conclusion of 'the sale as so made, discussed his previous negotiations and conferences that had occurred in New York City with the Frankels, at their office and their home in Houston while at dinner with them, during which conversations he asked that their Houston representative, Mr. Salrin, please forward to New York Salrin’s recommendation as to what price Tidewater should pay for the Krohn lease; especially since Tidewater’s New York office had already requested him to do that same thing. Such subsidiary, ^ incidental, and nonconclusive negotiations, and they were all the evidence shows occurred, did not constitute the doing of such business in Texas as the cited statutes prohibit.

Neither has this court found reversible error, in the trial proceedings; it therefore overrules all appellant’s attacks upon them, they having, in addition to the initial pleas .in bar, raised objections to the submission of the cause at all, to the special issues given, to the receipt of the jury’s findings in response thereto, and, finally, to the rendition of the judgment itself, upon all the grounds 'adverted to.

As appellant’s four above-quoted pleas have presaged, its major defenses upon the facts were: (1) that appellee had been shown not to have been the procuring cause of the sale as made on April 15 of 193'5, but that, instead, its own general counsel, William N. Bonner, had been its sole procuring cause; (2) that any and all of the appellee’s efforts to sell the Krohn lease to Tidewater had been solely referable to a written contract between it and the Alpha Company, providing in part for 2½ per cent commission on the sale price of any of appellant’s leases that appellee might make for it to Tidewater during the life thereof; that such contract had expired on December 31 of 1934, without any such a sale having ever been effected by the appellee, since appellant had promptly rejected in the summer of 1934 the only offer of a sale appellee had ever procured for it under that contract, and that, thereafter, neither the Alpha Company, nor the appellant itself, ever had any other dealing's or negotiations with the appellee touching the sale of the Krohn lease, or any other one.

It is thought the jury’s verdict settled these contentions on the facts adversely to the appellant, and that its findings are neither without any evidence, nor so against the weight of the . evidence upon any of those features of the cause, as to be wholly wrong; .on the contrary, after a laborious examination of the statement of facts, it is, as indicated, this court’s conclusion that each and all of the jury’s answers resolved the conflicts in the testimony relating to the matters submitted under each inquiry well within the limitations of the jury’s exclusive province.

The jury’s verdict as a whole may be an instance of some inferences of facts from others in evidence, but if so, a close study of it convinces this court that they were all legitimate ones from the facts actually in evidence; it may further be that some of the inquiries were leading in character and constituted the assumption of details that well might have been in better form, but at all events the appellant apparently was about as much sinning as sinnedagainst in this respect (whether or not it properly at the time objected to such submissions on that ground), in that its own three specially requested issues were of the same character in affirmatively submitting its defenses on facts as therein shown; irrespective of the answers to the other twelve issues submitted, those under these three- — -likewise upon sufficient evidence — negatived, in effect, appellant’s direct claims:

(1) That its predecessors in interest had, after they had first employed appellee to negotiate for them the sale of this lease to the Tidewater and it had thereunder offered to purchase it for $800,000 or $850,-000, they had notified appellee’s president that the lease had been withdrawn from the market;

(2) That the negotiations and efforts of Wm. N. Bonner had been the procuring cause of the sale of the lease as finally made;

(3) That from the date appellee began negotiations for the sale to Tidewater a reasonable time thereafter for it to have effected such a sale had elapsed, before the lease was actually sold to that company.

These findings, together with those establishing ratification of the appellee’s services in its efforts to effectuate the sale under the contract by the appellant’s predecessors, after full knowledge thereof, make plain that the services were originally- contracted for, that they were recognized and acted under by both sides, that they were never abandoned by either up to the actual sale, and that Mr. Bonner’s having quickly pushed such long-pending negotiations over the brink of an actual sale did not as a matter of law constitute the procuring cause thereof; at all events, the jury chose between him and the appellee as to which had been the procuring cause of the sale, and it may not be said their choice was without support in the testimony.

It is not deemed essential that this opinion be extended into a specific discussion of the great number of appellant’s further contentions; such of them as in this court’s opinion are properly before it have been carefully considered, with the conclusion that none of them reflect such error as was reasonably calculated to cause and probably did cause the rendition of an improper judgment herein;. Rule 62-A.

It follows from these conclusions that the challenged judgment should in all things be affirmed; it will be so ordered.

Affirmed.

On Motion for Rehearing.

A painstaking reconsideration has been given this cause, pursuant to invited arguments, both oral and in writing, from all parties; in these presentments both sides seem to be of the view that all the controlling questions in the controversy were involved in the original briefs and discussions, as well as in this court’s former opinion.

So regarding it from the appellate perspective, and, being still unconvinced of error in that disposition, it is determined that the motion should be overruled.

Appellant’s insistence on the rehearing that there was a fatal variance between the contract of employment as alleged by the appellee, and that found by the jury to have been made, is not thought to be sound; in this court’s view, the allegation that ap-pellee was employed “to act as broker for the purpose of entering into negotiations and effecting a sale to and with the Tidewater Oil Company” of the Krohn lease, and the jury’s finding that appellee was employed “to negotiate a sale of the Krohn lease to Tidewater”, upon which the claimed conflict is based, are essentially the same in meaning.

Furthermore, such a discrepancy between the pleading and proof, if it -can be said to exist at all, is not deemed to be legally material, in that it does not appear in the circumstances, among them that appellant apparently acquiesced in. a trial below upon the theory that there was no such evidence, that it was misled, surprised, or injured thereby; Morton Co. v. Dubuque Co., 287 Mass. 170, 191 N.E. 637; Allen v. Powell, 125 Ga. 438, 54 S.E. 137, 138; 3 Tex.Jur., Section 111, page 168; City v. J. J. & M. Taxman Co., Tex.Civ.App., 74 S.W.2d 524, 531, writ of error refused; Brotherhood v. Wood, Tex.Civ.App., 79 S.W.2d 665, 669; Southern Pacific R. Co. v. Kennedy, 9 Tex.Civ.App. 232, 29 S.W. 394; Coleman National Bank v. McDonald, Tex.Civ.App., 286 S.W. 487; City National Bank v. Penn, Tex.Civ.App., 92 S.W.2d 532; Walton v. Thomas, Tex.Civ.App., 84 S.W.2d 539; Parks v. Sullivan, Tex.Civ.App., 152 S.W. 704.

Moreover, the appellee did not limit its declared upon cause of action to the express verbal contract of employment alleged to have been made in January of 1934, but, in the alternative, further sought to recover upon quantum meruit; that declaration being based upon an alleged promise of the appellant, implied by law, binding it to pay for beneficial services the appellee alleged it had rendered it, which had been knowingly accepted. That a right of recovery, when predicated upon such facts, exists, is well settled. Page v. Estes, Tex.Civ.App., 142 S.W.2d 292; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.

It is the opinion of this court that the questions of fact, so alternatively declared upon, had sufficient support both in the evidence and the jury’s quoted findings thereon ; wherefore, the verdict would still have proper support, even should the finding of an express contract be discarded. The motion will accordingly be refused.

Refused.


author: GRISSOM, Justice.

text:
    STROUD v. HUNT OIL CO. et al.
    No. 2081.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 17, 1941.
    Hill & Bath, of Henderson, for appellant.
    McEntire & Shank, of Dallas, for appel-lees.
   GRISSOM, Justice.

Hunt Oil Company et al. instituted this suit against J. C. Stroud in trespass to try title ,to a seven-eighths mineral estate in a strip of land containing approximately .28 of an acre. Plaintiffs, in addition to the formal plea in trespass to try title, pleaded the five and ten year statutes of limitations. Defendant, Stroud, answered by general denial and plea of not guilty. The trial was to the court. The court rendered judgment for plaintiffs- and defendant has appealed.

At the request of appellant, the court filed findings of fact and conclusions of law.

The land in controversy was formerly a part of Highway No. 64, which ran through a 9.82-acre oil and gas lease owned by plaintiffs, and which constituted a part of a 393-acre tract of land described in a deed from H. B. Young and wife to Calvin V. Young. H. B. Young is the common source of title.

In April, 1920, H. B. Young conveyed to Rusk County a right of way over a 100-acre tract of land, which tract was a part of the 393 acre tract heretofore mentioned. This instrument contained no description of the right of way by metes and bounds. All the parties agree that the effect of this instrument was to convey only a right of way. Said right of way later became a part of State Highway No. 64.

In November, 1925, H. B. Young and wife by general warranty deed describing the land by metes and bounds conveyed the 393-acre tract to Calvin V. Young. The consideration recited was “$2000 paid by Calvin V. Young for himself and $3000 paid, by C. R. McDonough for said Calvin V. Young, and for which Calvin V. Young has executed his three vendor’s lien notes”, etc. The 393 acres described in the deed from H. B. to Calvin V. Young included the 9.82 acres contained in the oil lease aforesaid and the latter included the .28 of an acre in controversy. After such description of the 393 acres, the deed concludes as follows:

“ * * * but from which is excepted that part of the Henderson and Tyler Highway which crosses the North East corner of the above bounded land. Also the saw mill engine, boiler, carriage, belting, pulleys and all tools appliances, fixtures and appurtenances belonging thereto now located on the above bounded land.
“To have and to hold, the above described land, and premises, mill and machinery, unto said Calvin V. Young, his heirs, and assigns, in fee simple forever.
“And we hereby bind ourselves, our heirs, and legal representatives to warrant and forever defend the right and title, to said land and premises mill and machinery unto said Calvin V. Young, his heirs and assigns, against the lawful claims of every person whomsoever, claiming, the same or any part thereof.”

In May, 1927, Calvin V. Young executed an oil and gas lease to the land conveyed to him by H. B. Young in 1925 to S. E. Gray, trustee. Plaintiffs became the owners of this lease insofar as the tract in dispute is concerned if Calvin V. Young acquired title thereto in his deed from H. B. Young.

In December, 1938, the State of Texas, having abandoned for highway purposes the .28-acre tract in controversy, executed a “release and quit claim” thereof to H. B. Young.

In August, 1938, H. B. Young and wife executed an oil and gas lease to the .28 acre in controversy to defendant, J. C. Stroud, describing it as “.43 acres, more or less”, and reciting that it was a part “of the land reserved in a deed from H. B. Young et ux to Calvin Young.”

The question for determination is whether in the deed from H. B. Young and wife to Calvin V. Young the grantors excepted from the conveyance the fee title to the land covered by the “Henderson-Tyler Highway”, or, whether the language used in the concluding part of the deed from H. B. Young and wife to Calvin V. Young was intended merely to protect the grantors on their warranty from any claim arising from the fact of the previous conveyance by H. B. Young of a right of way to Rusk County, and had that effect.

In Klein v. Humble Oil & Ref. Co., Tex.Civ.Appi, 67 S.W.2d 911, 912, affirmed, Tex. Sup., 86 S.W.2d 1077, Stein conveyed 60 acres of land to Klein by warranty deed. The land was described by metes and bounds. The deed contained the following provision: “ 'Grantors herein, however, reserve for themselves, their heirs and assigns, one-eighth (1/8) of all mineral rights in and under Ten (10) acres of land, running north and south, on the east end of the 60 acres herein conveyed, and it is understood and agreed that if no production of oil is had on said Ten (10) acres within a period of Twenty (20) years, this reservation shall terminate and become null and void, and it is further understood that grantors herein are not to participate in any oil lease or rental bonuses that may be paid on any lease on said above described land, and hereby waive any rights they may have or be entitled to in any future oil or gas lease.’ ”

Klein conveyed the same land, by the same metes and bounds, to Baker. That deed contained the following provision:

“ ‘There is however excepted from this conveyance 1/8 of all mineral rights in and under Ten acres of land running north and south on the east end of said 60 acres, and it is understood that if no production of oil is had on said 10 acres within a period of Twenty years from May 29, 1928, then this reservation shall lapse. Also understood that the owner of said rights is not to participate in any oil lease or rental bonuses that may be paid for any lease, and have no interest in any future oil and gas lease.’
“ ‘The property herein conveyed is the same conveyed to us by Robert Stein and wife by deed dated May 29, 1928, and recorded in Guadalupe County, Deed Record Book 97, p. 398.’ ”

The Court of Civil Appeals pointed out that “Nothing was said in the Klein deed to Baker about the l/8tli that Stéin had reserved * * That court also stressed the fact that Klein in his deed did not say that the exception was for himself. That court held that the exception in the Klein deed had reference to the exception in the Stein deed and that it was not an exception of an additional one-eighth interest in the minerals to Klein. Relative thereto that court said: “This must be true, since the provision nowhere in terms purports to say that the ‘exception’ was for them or that the interest excepted was to be theirs. There _ is nothing in the language of the exception itself which requires that construction. Under the language of the provision it is, at most, only a possible construction. And under the language itself it is just as possible to fairly construe the ‘exception’ as referring to the Stein interest, which was not being conveyed. With this being true, if there is doubt as to the making 'of the exception, this doubt must be resolved against the grantors, and in favor of the grantee Baker, that the exception was but to preserve and protect the Stein reservation and Klein’s warranty. Baker v. McDowell, 3 Watts & S. (Pa) 358; Harris v. Cobb, 49 W.Va. 350, 38 S.E. 559; Hill v. Roberts (Tex.Civ.App.) 284 S.W. 246; Plooks v. Neill (Tex.Civ.App.) 21 S.W.(2d) 532.”

Relative to Klein’s contention that the exception in his deed did not have reference to the exception in the Stein deed, but excepted from Klein’s conveyance an additional one-eighth of the mineral rights in the east 10 acres, for Klein’s benefit, in addition to the interest excepted by the Stein deed, Judge Hickman, speaking for the Supreme Court, said [86 S.W.2d 1078]:

“All parties admit that, in their deed to Klein, Stein and wife reserved to themselves a determinable fee to 1/8 of all mineral rights in and under the east 10 acres. It is the contention of Klein and those claiming under him that Klein and wife in their deed to Baker excepted for themselves an additional 1/8 of all mineral rights in the east 10 acres. With respect to this contention the Court of Civil Appeals held that the deed from Klein and wife to Baker conveyed all of the interest they had in the property;’ that the exception contained therein, had the effect of excluding from the conveyance only the 1/8 reserved by Stein and wife in their deed to Klein, and that the purpose of the Klein exception was to protect their warranty as against the Stein reservation.
“Much of the opinion of the Court of Civil Appeals is devoted to a discussion of this question. We are in full agreement with that holding, and do not deem it necessary or desirable to enter into another discussion of that phase of the case. We have examined the assignments presented in the application of Klein and his assigns for a writ of error and find them well answered by the opinion of the Court of Civil Appeals.”

In Penn v. Holland, Tex.Civ.App., 105 S.W.2d 351,353, writ refused, L. K. Decker conveyed to the Railway Company a right of way over a described tract of land. Thereafter she executed a warranty deed to Brooks to the tract of land over which the right of way had been granted. After a description of the land this provision followed: “Save and except three (3) acres of land out of said tract, the same having been conveyed by me to the Houston Galveston Electric Railway Company.” The question involved was whether or not said quoted provision excepted the title to three acres of land out of the tract described, or whether same was merely an exception of the easement previously granted to the Railway Company. The court held that the exception was of the easement only, and not of the title to the three acres 'described in the warranty deed.

In Shell Pet. Corp. v. Ward, 5 Cir., 100 F.2d 778, 779, the owner of land conveyed a right of way to the Neches Canal Company. Thereafter the land owner executed a general warranty deed to one Gregory. The description of the land by metes and bounds included the 5.6 acres covered by the right of way deed. Following a description of the land, recited as containing 162 acres, there was this provision: “save and except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Com-n^ny lateral, making 156.4 acres herein and hereby conveyed.” The court, in an opinion by Judge Hutcheson, said:

“It is a principle of universal application that grants are liberally, exceptions strictly, construed against the grantor. * * * This principle is especially vigorous in operation, where, as here, a construction is contended for which would produce the unreasonable result of splitting into two pieces a tract of land, which existed as one tract, subject only to an easement, and which, in reason, must be considered to have been conveyed 'as such, and not to have been split into separate parts, with a thin wedge of land between.”
“They urge upon us further that in the cases appellant relies on the thing excepted was in terms a right of way, or an easement. Here the thing excepted is in terms land.
“We cannot agree with any of these positions. We think it quite clear that here is no plain and unambiguous direction in a deed which may be given effect without resorting to construction. On the contrary, construction is imperatively demanded. For the deed, by metes and bounds, describes and in terms conveys 162 acres of land which includes the land in question, and then provides ‘save and! except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company’s lateral, making 156.4 acres herein and hereby conveyed.’
“If construed as appellees would have it, a result both unreasonable and clearly unintended would have been produced. For it is inconceivable that Gregory, plaintiffs’ grantee, would have bought a tract of land split into two tracts by a small narrow strip which the Canal Company was not only authorized to use as a lateral, but if appellees are right, appellees would be entitled, under the restrictions in the Canal deed,'to close up and occupy and thus cut appellant’s land in two.”

The court further said:

“The instrument construed in Penn v. Holland, Tex.Civ.App., 105 S.W.2d 351 is almost identical in terms. It provides ‘save and except three (3) acres of land out of said tract, the same having been conveyed by me to the Flouston Galveston Electric Railway Company.’ (page 353.)
“The decisión in this case, and in Jones v. Sun Oil Co., Tex.Civ.App., 110 S.W.2d 80, in both of which the Supreme Court refused a writ of error, leave in no doubt that the law is established in Texas as appellant contends that it is, and the deed should be construed as it contends for.”

In Kansas City So. Ry. Co. v. Marietta Oil Corp., 5 Cir., 102 F.2d 603, Lynn and another Lumber Company, under whom both plaintiff and defendant claimed, executed a deed to one Parker to certain described land, “less a right of way 100 feet in width reserved for the Kansas City * * * Railroad Company through said land * * Thereafter Lynn Lumber Company conveyed to said named railroad, the appellant, a right of way 100 feet in width across said tract of land described in the Parker deed. It was contended, and the trial court held that the Lumber Company in their deed to Parker reserved to themselves the title to the strip of land on which appellant had its right of way. The appellate court held that such result was “neither intended nor accomplished.” Referring to Shell Pet. Corp. v. Ward, supra, the court said: “* * * we have had recent occasion to give careful consideration to and to declare the effect of instruments and situations of this kind. As we there pointed out, descriptions such as the one in question here are, with almost complete uniformity, construed as not intending to reserve, and not reserving anything, in the grantor, but on the contrary, as passing to the grantee the whole of the tract described, subject only to the easement. * * * By a much stronger reason a deed which, as here, refers in terms to a public easement, such as a highway or railroad right of way, will be construed as conveying to the grantee the fee to the property subject only to the public easement. Roxana Pet. Corp. v. Sutter, 8 Cir., 28 F.2d 159; Midland Valley R. Co. v. Sutter, 8 Cir., 28 F.2d 163.”

In Shell Pet. Corp. v. Hollow, 10 Cir., 70 F.2d 811, 814, the same question was considered. There the court said:

"Decisions could be multiplied holding that the servient estate in a small tract, usually in the form of a strip set apart for highway or railway right of way purposes, passes with a conveyance of the fee to the abutting tract of which the strip formerly was a part. The servient estate passes with such a conveyance, even though no express provision to that effect is contained in the instrument. The rule is that such estate passes unless it is excluded by clear, unequivocal, and unmistakable language. The considerations of sound public policy evoking the application of that doctrine and constituting its undergirder, as well as the mischief sought to be obviated by it, was declared by the late Chief Justice Taft, then Circuit Judge, in Paine v. Consumers’ F. & S. Co. [6 Cir.] 71 F. 626, 632, as follows: ‘The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases.’
“The doctrine thus enunciated has been applied to the conveyance of land' abutting a right of way for highway purposes in Kansas, Bowers v. Atchison, T. & S. F. R. Co., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228; and to the conveyance of land abutting a right of way for railway purposes, Roxana Pet. Corp. v. Sutter [8 Cir.] 28 F.2d 1S9; Shell Pet. Corp. v. Corn [10 Cir.] 54 F.2d [766] 767; Roxana Pet. Corp. v. Jarvis, 127 Kan. 365, 273 P. 661; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12, 14; it being held in each instance that conveyance of the fee of the abutting tract passes title to the servient estate in the land embraced within the right of way.”

In Bolton v. Dyck Oil Co., Tex.Civ.App., 114 S.W.2d 299, 301, Barber, in 1880, conveyed a tract of land to Eaton by specific metes and bounds. At the end of the last call for metes and bounds was the following: “containing 87 acres after deducting the .right of way of said H. & O. R. R.” In 1877 Barber had conveyed to the H. & O. Railroad a right of way across this land. Bolton, holding an oil and gas lease from the heirs of Barber, deceased, on 2.41 acres out of said tract, filed suit in trespass to try title against the Oil Company to recover the title and possession of the railway right of way. The sole question was the construction of the quoted exception in the deed from Barber to Eaton. The court there pointed out that the field notes therein included the railway right of way previously conveyed. The court held that said exception was not an exception of the title to the land included within the right of way but that the purpose of the quoted provision was to protect Barber from a claim that he had breached his warranty by conveying the right of way. The court said: “Barber did not deduct the ‘land’ occupied by the railroad, but only the ‘right of way.’ Many decisions are found in the books defining ‘reservation,’ ‘exception,’ ‘deduction,’ and ‘right of way.’ In Devlin on Deeds, p. 1851, it is said: ‘A deed which reserves a road of a certain width to be shut at each end by a bar or gate, reserves only a right of way, and not the fee of the land reserved for a road.’ The following proposition is announced by 18 C.J. 338: ‘A grant of land by metes and bounds with full covenants of warranty, excepting or reserving a roadway for the use of the public, or a right of way for a railroad, passes the fee to the land subject to the easements reserved.’ In Wellman v. Churchill, 92 Me. 193, 42 A. 352, it was held that the reservation or exception of ⅛ way’ reserved only an easement, not the soil or fee. In Wellman v. Dickey, 78 Me. 29, 2 A. 133, a deed containing the words ‘excepting the roads laid out over said land’ was held to convey the fee within the limits of the road, subject to the easement of the public incident to the use of the road. See, also, Roxana Pet. Corp. v. Corn, 8 Cir., 28 F.2d 168; Shell Pet. Corp. v. Corn, 10 Cir., 54 F.2d 766, and Martin v. Southern Pine Lbr. Co., Tex.Com.App., 284 S.W. 918.”

Also, see Jones v. Sun Oil Co., Tex.Civ. App., 110 S.W.2d 80, writ refused; 14 Tex.Jur. 958; 16 Am.Jur. 615, 616; 18 C.J. 341; Right of Way Oil Co. v. Gladys City Oil, etc., Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268; Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co., Tex.Civ.App., 137 S.W. 171, 178; Roxana Pet. Corp. v. Corn, 8 Cir., 28 F.2d 168; Shell Pet. Corp. v. Corn, 10 Cir., 54 F.2d 766, 769; City of Stamford v. King, Tex. Civ.App., 144 S.W.2d 923.

The deed in question described by metes and bounds a 393-acre tract. The ha-bendum clause reads: “To have and to hold the above described land and premises, mill .and machinery, unto said Calvin V. Young, his heirs and assigns, in fee simple forever.” There followed a covenant of general warranty of the title to “the above described land.” As in the Klein case, supra, there was no language used indicating the exception was for the benefit of the grantor. By the terms of the exception there was excepted a part of the “Henderson and Tyler Highway” which, the exception recites, crosses the “above bounded land” at a certain corner. The highway divided said tract separating a small portion thereof from the main body. A reservation of the title to the land, in 1925, would have had the effect of withholding a wedge of land by the grantor, which in all probability would have been valueless to the grantor and would have greatly reduced the value of the tract to the grantee. The highway excepted was not described by metes and bounds. It would be unreasonable to assume that the grantee paid $5,000 for the described tract of agricultural land and that he permitted to be excepted therefrom an undetermined quantity of land in such a shape. By the very terms of the deed no land was excepted from the conveyance. By its express terms the exception was of a “highway” across the land described and conveyed.

Bearing in mind the established rules of construction that grants are liberally, exceptions strictly, construed, we are compelled to agree with the trial court that this was no exception of land but that the grantors intended by such provision to protect themselves on their warranty against any claim by virtue of their previous conveyance of a right of way to Rusk County, which right of way had become a state highway. It is evident that if the exception had in terms been of a right of way, or road, or passage way across this land, it would not be contended, under the circumstances of this case, that there was an 'exception of the title to land, but of an easement only. The use of the term “highway” does not require a different interpretation.

In Webster’s Revised Unabridged Dictionary, “highway” is defined as follows: “A road or way open to the use of the public; a main road or thoroughfare.” The synonyms given for highway are “way; road; path; course.” In Webster’s New International Dictionary “highway” is defined as “a main road or thoroughfare, hence a road or way open to the use of the public * *

The term “highway” has been construed as synonymous with “road.” Brace v. New York Central R. Co., 27 N.Y. 269; Elliott Roads & Streets, 4th Ed., vol. 1, § 4, Notes.

In Devlin on Real Estate—Deeds, 3d Ed., Vol. 2, sec. 1028a, it is said: “The natural presumption where the deed conveys land bordering on a stream or highway, is that the grantor meant to convey what he owns, and not to reserve a strip of land of no value to him, but the loss of which to the grantee might be productive of great injury * * * But, in the absence of words showing such an intention, it is not presumed that the grantor intended to rétain in himself the fee to the street or stream when he has parted with the adjoining land.”

The trial court found that H. B. Young and wife, by their deed to Calvin Young in 1925, conveyed all said grantors’ right, title and interest in said 393 acres of land. We think this finding is correct and supports the judgment. That court found that the exception was unambiguous, but, if ambiguous, that the extrinsic evidence showed such to be the intention of the parties. We think the exception unambiguous, but, if ambiguous, find the evidence supports the trial court's conclusion.

Upon the theory that it was ambiguous, appellant, over appellees’ objections, introduced extrinsic evidence to show the intention of the parties. If this were error it was invited, not reversible, error. Texas & N. O. R. Co. v. Geiger, 55 Tex.Civ.App. 1, 118 S.W. 179, writ refused; Farmer v. Crowley, Tex.Civ.App., 239 S.W. 1017; Houston, E. & W. T. R. Co. v. Jackson, Tex.Com.App., 299 S.W. 885.

The judgment is affirmed.