text:
    FEDERAL UNDERWRITERS EXCHANGE v. POPNOE et al.
    No. 3903.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1940.
    Rehearing Granted April 11, 1940.
    Remittitur Allowed May 16, 1940.

      Touchstone, Wight, Gormley & Touchstone, of Dallas, for plaintiff in error.
    Benbow, Saunders & Holliday, of Dallas (Claude Williams, of Dallas,.and Charles Crenshaw, of Houston, of counsel), after filing brief withdrew from the case.
    John J. Watts and J. B. Cotten, both of Crane, for defendants in error.
   PRICE, Chief Justice.

This suit was instituted in the -District Court of Crane County, Texas, by defendant in error Popnoe to set aside the award of the Industrial Accident Board. The parties for convenience will be referred to here by the designation they bore in the trial court. The case was submitted to a jury on special issues. Verdict was returned and judgment was entered thereon in the sum of $5,019.76 against plaintiff in error, defendant there, as the insurance carrier. Motion for a new trial was overruled and defendant duly perfected writ of error to this court.

By the verdict it was established that on January 24, 1938, plaintiff, an employee of the Morgan Construction Company, suffered accidental injury while acting in the course of his employment; that as a result. of such injury he suffered total permanent incapacity; such incapacity commenced on the 24th day of January, 1938. Further, that he .was entitled to a lump sum settlement and that $4.50 was a daily wage that would be fair alike to plaintiff and defendant.

The evidence established beyond dispute that at the time and' on the occasion alleged plaintiff suffered, in the manner alleged, an accidental injury.

There was a conflict ip, the testimony as to the extent and effect of such injury. Plaintiff’s pleading sets up numerous injuries, to the vertebrae of his spine, his head, hips and shoulders, and that as a result thereof he suffered total permanent incapacity. The evidence indisputably establishes that his shoulder blade was fractured.

Plaintiff was á truck driver- for the Morgan Construction Company and in the course of his employment drove up on a ramp and the truck fell from the ramp and turned over and thereby he was injured. He was immediately taken after the accident to the office of Dr. Cooper, where an X-ray disclosed the fracture of the shoulder blade.

Special issue No. 1, submitted to the jury, is as follows: “Do you find from a preponderance of the evidence, that the plaintiff, T. C. Popnoe, sustained an accidental injury as alleged in his petition, on or about January 24, 1938?”

Complaint is made as to the form of this issue in substance as follows: (1) That it delegated to the jury a construction of plaintiff’s pleading, which was a matter of law for the court; (2) the same is too vague, indefinite and uncertain, in that it does not confine the jury to those particular injuries pleaded by plaintiff.

-Plaintiff unquestionably, upon the establishment of one or more of the accidental personal injuries alleged in his petition, had the legal right to have ,the extent, effect and duration thereof submitted to the jury. There might likewise be an issue as to whether or not the personal injury or injuries were sustained in the manner alleged by plaintiff. - If this was an issue under the facts it should have been submitted to the jury. Let us assume that an affirmative- answer might have been returned by the jury oh the theory of a personal injury other than one or more of the injuries alleged in the petition and considered whether or not defendant was thereby prejudiced.

Special issue No. 1 has been set out. No. 2 was as to whether plaintiff was an employee of the assured, and No. 3 as to whether, when the injury was sustained, plaintiff was acting in the course of his employment.

In our opinion issues one, two and three submit matters as to' which the evidence was undisputed. The findings are in accordance with the undisputed evidence. An error in the form of the submission of these issues was harmless.

Issues as to the personal injury should, of course, be, confined to the injury specifically pleaded by the plaintiff. Traders’ & General Insurance Co. v. Low, Tex.Civ.App., 74 S.W.2d 122. A more serious question would have arisen had defendant’s objection to issue No. 1 been addressed to special issue No; 4, submitting the result of the accidental personal injury. In No. 4 the result of any and all personal injuries received on January 24, 1938, might have been considered. If such complaint was made in the exceptions to issue No. 4 it is not briefed here.

In a proceeding under the Workmen’s Compensation Act (Vernon’s Ann.Civ.St. art. 8306 et seq.), seeking compensation for general injuries as distinguished from specific injury or injuries, one or more of the injuries alleged being established, an issue is found which in part conditions the right to compensation. This is an ultimate issue, or part at least of an ultimate issue. The effect and extent of the injuries are submitted in other issues and condition the amount of the compensation. It cannot be that where multiple personal injuries are alleged in the petition that each specific injury as to which the evidence raises an issue must be submitted separately. Such a submission is not made in the ordinary personal injury cases. There the character, nature and result of the personal injuries are submitted in issues as to damages. In the ordinary workmen’s compensation case where general injury is in question the result of the injury on the capacity to earn wages is the inquiry. The combined result of all of the injuries alleged and proved is the end sought. Texas Employers’ Ins. Co. v. Clack, Tex.Civ.App., 112 S.W.2d 526; Id., Tex.Com.App., 132 S.W.2d 399.

In connection with the submission of the issue as to the result of plaintiff’s injury as to the duration of the result of plaintiff’s injury the court defined the word “permanent” as follows: “Permanent, as used in this charge, is meant throughout the lifetime of the plaintiff, T. C. Popnoe.” Defendant objected to this definition for the reason same was too broad and did not take into consideration its defensive theory, an element of improvement. The issue as to permanency of the incapacity followed immediately after the issue as to total incapacity. It is conceded that the definition of total incapacity as given was correct. If we substitute the definition of total incapacity for the term, we think it is demonstrated that there was no injury to defendant. With the definition inserted the finding would be that for the remainder, of his life plaintiff was disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment. This we think is all that is required to establish total permanent incapacity. Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005.

In our opinion the form of the issues submitted on behalf of the plaintiff properly placed the burden of proof. Houston & T. C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995.

By assignments of error Nos. 5 and 20 the definition given by the trial court of partial incapacity is assailed. The statement under the proposition does not show by reference to the transcript what objections were urged by defendant to this definition. In view of the fact that the defendant’s exceptions to the court’s charge compose about fifty pages of the transcript, we do not feel that we are required to read same to ascertain what objections were made to the charge. The assignments are overruled. However, in the case of Fidelity Union Casualty Co. v. Munday, Tex.Civ.App., 26 S.W.2d 676, 682, Justice Vaughan, when he said, “We therefore hold the meaning of ‘partial incapacity,’ as used in said statute, to be a lack of physical power in part only, or physical inability in part only of an injured member,” was referring to Section 12 of Article 8306, which applies to specific injury. In the case of Traders & General Insurance Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, 755, there is given a definition of partial incapacity as applied to general injuries. This case reached the Supreme Court (Wright v. Traders & General Ins. Co., 128 Tex. 172, 123 S.W.2d 314, loc. cit. 317), and there the holding of the Court of Civil Appeals approving the definition as given by the trial court was approved.

Special issues numbers 22, 23 and 24, with the findings of the jury, were as follows :

“Special Issue No. 22. Do you find from a preponderance of the evidence that the plaintiff’s disability, if any, was not prolonged or plaintiff’s recovery, if any, was not retarded, due to the failure of the plaintiff, if any, to follow the advice and instructions of Dr. James L. Cooper, as alleged?
“Answer: ‘Plaintiff’s disability was so prolonged and his recovery retarded’ or ‘Plaintiff’s disability was not so prolonged and his recovery was not so retarded.’
“Answer: Plaintiff’s disability was not so prolonged and his recovery was not so retarded.”
“Special Issue No. 23. For how long a period of time, if any, do you find from a preponderance of the evidence, that the plaintiff’s disability, if any, was not prolonged as a result of the failure of the plaintiff, if any, to follow the advice and instructions of Dr. James L. Cooper, as alleged?
“Answer in number of weeks, if any.
“Answer: Not 'any.”
“Special Issue No. 24. What percentage of the plaintiff’s disability, if any, do you find from a preponderance of the evidence was not the result of the plaintiff’s failure, if any, to follow the advice and instructions of Dr. James L. Cooper, as alleged ?
“Answer in terms of per cent, if any, using one hundred per cent (100%) as a basis of calculation.'
"Answer: 100%.”

On motion of the plaintiff the court set aside the finding of the jury as to special issue No. 23. Defendant had pleaded in great detail that plaintiff had wilfully and deliberately refused to follow the directions of the doctor and refused to accept medical treatment, and thereby his recovery was retarded and disability, if any, prolonged. The testimony of Dr. Cooper in a measure tended to support this allegation. The issues as to whether plaintiff did or did not refuse to follow the advice of Dr. Cooper were not submitted to the jury.

Let us first attempt to construe these findings to determine, if possible, just what the finding on 23 means. No. 22 amounts to a finding that plaintiff’s disability was not prolonged by failure to follow the advice and instructions of Dr. Cooper, and further that his recovery was not retarded by any such failure. No. 24, that plaintiff’s present disability was not the result in any degree of a failure to follow the advice and instructions of the doctor. In substance plaintiff in his testimony denied such failure. In form issue No. 23 is confusing. The manner the jury were directed to respond thereto does not add to its clarity. What we think was really intended to be submitted by the issue was, whether or not there was a prolongation of the disability by reason of such failure, and if so to fix the period thereof. The- response does not attempt to fix .any period. In our opinion the true construction thereof is a finding that there was no such period of prolongation by such means, this construction is reinforced in a great measure by the finding as to 22 and 24. In the construction of a verdict the findings should be harmonized, if possible, so as not to conflict. 41 Tex.Jur. p. 1224, sec. 360.

To give the literal construction adopted by defendant as to issue 23, it simply amounts to this: that the jury, by a preponderance of the evidence, did not find that the acts or omissions of plaintiff were without effect as to plaintiff’s disability or incapacity. It must be borne in mind, too, that such failure on the part of plaintiff was not established by the verdict. Concede that the finding is susceptible of the literal construction insisted upon by defendant, then let us see what is the legal effect thereof. Paragraph three of Section 1 of Article 8306, R.S., is in part, “But such employer may defend in such action on the ground that the injury was caused by the willful intention of the employe to bring about the injury.” By “wilful intention” we think is meant something more than negligence — something more than mere voluntary actions. It means, we think, action or non-action with the specific and wrongful intention to produce or aggravate an injury already existing — produce or aggravate for the purpose of collecting compensation. 4 A.L.R. 116; 119 A.L.R. 1413; Indemnity Ins. Co. v. Scott, Tex.Civ.App., 278 S.W. 347.

In our opinion the mere fact that the court set aside the finding before rendering the judgment is of little import. The correct judgment was entered on the verdict.

Special issue No. 8 was as follows: “How many weeks, if any, do you find from a preponderance of the evidence that the total incapacity, if any, of the plaintiff, T. C. Popnoe, continued, if it did, or will continue, if it will, from the date said injury, if any, was sustained?”

The jury responded thereto, “Rest of his life.” It is to be noted that the point fixed for the beginning of the period or periods to be fixed was the date of the injury. The jury were not directed as to the form of their answer. Several possible conditions were submitted from which they were to make their selection. Responsive answer could only be made by fixing a period of time to commence with the injury. The correct construction of the finding is, that from the date of the injury for the rest of his life the plaintiff would continuously suffer total incapacity. If the issue was multifarious, the response thereto was single. After all, however, there was only one finding sought by the issue — that was as to the duration of the total incapacity from the date of the injury. The issue might have been presented more clearly, but it does not conflict with any of the other findings but is in harmony with them. It was not a defensive issue. Even if it be construed as multifarious, the other issues properly submitted sustain, independent of No. 8, the right of plaintiff to recover for total permanent incapacity. See Traders & General Ins. Co. v. Herndon, Tex.Civ.App., 95 S.W.2d 540; Texas Employers’ Ins. Assn v. Clack, Tex.Civ.App., 112 S.W.2d 526; Traders & General Ins. Co. v. Snow, Tex.Civ.App., 114 S.W.2d 682.

Plaintiff sought to recover compensation under subsection one of Section 1 of Article 8309, R.S., and, in the alternative, under subsection two thereof, averring under one and two his average weekly wage base was $16.15 per week. In case it was found that neither subsection one nor two be applicable, that his wage rate be fixed in accordance with subsection three at such amount as the court may deem just and fair to all parties hereto. Immediately following this the petition. alleges: “In this connection plaintiff says and will show unto the court that his weekly wage rate of $16.15 and compensation rate of $9.69 per week are rates in accordance with his previous earnings and in accordance with all of the facts and circumstances, which is just and fair to all parties hereto.”

We believe a fair construction of this pleading is that plaintiff sought recovery on a wage base of $16.15 per week. This being true, it marks the maximum of the amount that he might recover under his pleading. It follows that the judgment rendered was not supported by the pleading for the excess over the compensation base alleged.

The findings of the jury excluded subsections one and two of Section 1, Article 8309. Under the findings and evidence the basis of plaintiff’s compensation was governed by subsection three of Section 1 of said article. In order to determine the basis for compensation the court submitted issue- No. 18, which was as follows: “From a preponderance of the evidence what sum of money do you designate, if any, as the average daily wage of the plaintiff, T. C. Popnoe, which you deem just and fair to both parties, plaintiff and defendant?”

The jury found $4.50 as the average daily wage. The form of this issue was assailed by the exceptions of defendant in substance on the ground that it was not a proper issue to be submitted under subsection three of Section 1 of Article 8309, in that it did not conform to such law, and any answer would be insufficient to predicate a judgment in favor of plaintiff. We take it that the objection is entitled to the construction that the issue did not submit the ultimate issue under subsection three. Subsection three is as follows: “When by reason of the shortness of the time of the employment of the employé, or other employé engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons; it is impracticable to compute the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties.”

It will be observed that the board is empowered to compute the average weekly wages in any manner which may be just and fair to both parties. The governmental agency charged with the administration of the law is to select its own method of determining the fact. There is this limitation on the power: that the method selected must be just and fair to both parties. Subsection three, however, is not entirely -independent of subsections one and two, for the average weekly wages to be computed are the average weekly wages as above defined. This further limitation, we think, might be added: the manner of determination selected must be reasonably adapted to and achieve the end sought; that is, an average weekly wage fair alike to both parties. Where the issues are to be tried before a jury that body has the function of determining the basis of their action.

In case of general injuries the purpose of the law is to compensate in a measure at least for lost capacity to earn money. In the ordinary case the standard is the capacity to earn money during the year elapsing next prior to the injury. Under subsections one and two the standard is fixed in a large measure by what the claimant actually earned in such year or by what another employee of the same class ¡earned in such year in the same or similar employment in the same or neighboring place. Under subsections one,, two and three the ultimate, issue is the same. One and two define the way to arrive at ‘thé solution of the issue. The.way is undefined in. subsection three. The board or the jury is left, in a rheasure at least, free jo select the mode.

. Issue No, 18 inquired as to the daily wage of plaintiff to be fixed .in a way deemed just and fair to both parties. This daily wage is not limited to 'any employment or to any time, and not even to the average daily wage. If compensation is to ,be arrived at by multiplying the daily 'wage fixed by three hundred, the jury are not left at liberty to select the manner of arriving at the average weekly wage. A mode is adopted that, while not forbidden by' law, is not thereby prescribed. In our opinion the assignment presents reversible error.

’ In the absence of the existence of the condition contemplated in one and two, there is no legal basis for the calculation of an average daily wage.

In order to illustrate the ideas expressed the writer shall attempt to formulate an issue which, in his opinion, would have submitted the ultimate issue as to average weekly wages under this case. It is thought that perhaps it may be applicable to the issue under subsection three in the ordinary general injury case. Why would not. the following be a proper formulation of the issue?

“What sum do you find from a preponderance of the evidence would fairly represent the average weekly wage plaintiff had the capacity to earn as a truck driver, if he had been continuously employed as such for the year elapsing next prior to the date of his injury?

“The court directs you as follows in reference to the above issue: You will arrive at the solution thereof in any manner that may seem just and fair to both plaintiff and defendant.”

The above is not to be taken as a direction to the trial court on retrial, but is merely formulated in the hope it may in a degree help to clear up a rather confusing and difficult matter.

In the case of Traders & General Insurance Company v. O’Quinn, Tex.Civ.App., 111 S.W.2d 859, the form of the .issue submitting average weekly wages under three is set forth. The formulation of the issue there, we think, is admirable. Writ of error was denied-, in that case. The issue as formulated there has this great advantage over the issue as formulated here; namely, thát it .has met at least with the implied approval of the Supreme Court.

The case is reversed and remanded.

On Motion for Rehearing.

We have carefully considered the motion for rehearing of the plaintiff, but still adhere to the views. expressed in the .original opinion. However, plaintiff has tendered remittiturs herein, the first in an amount sufficient to reduce the judgment to the amount in his petition. In our opinion this is insufficient to render harmless the error for which the case was reversed. In the alternative, if the first re-mittitur tendered is deemed insufficient, a remittitur in such an amount as to allow compensation at the minimum rate of $7 per week is made. The exact amount of the remittitur is not stated, we believe.

The case was reversed and remanded on account of error in the submission as to the compensation base. In the event' the minimum is allowed we can see no just ground for complaint by the defendant.

It is ordered that in the event plaintiff files, within twenty days from this date, a -remittitur in a sum sufficient to reduce the judgment as above indicated, the same to be in a definite sum, that the former judgment reversing and remanding this cause be set aside, and same be affirmed. If such remittitur is not filed within the time aforesaid, plaintiff’s motion for rehearing be overruled.

Remittitur Allowed.

Defendant in error having filed his re-mittitur in the sum of $2,245.70, in accordance with the opinion on rehearing, it is ordered that the previous judgment reversing and remanding this cause be set aside, and that the judgment of the trial court be modified and affirmed, with .the remittitur of the said sum of $2,245.70 of the judgment of the court below.


source: Caselaw Access Project

author: GRISSOM, Justice.

license: Public Domain

text:
    INDIAN TERRITORY ILLUMINATING OIL CO. v. RAINWATER.
    No. 1988.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1940.
    Appellee’s Motion for Rehearing Granted April 12, 1940.
    Appellant’s Motion for Rehearing Granted May 3, 1940.
    Rehearing Denied May 24, 1940.

      Sayles & Sayles, of Abilene, for appellant.
    Gilbert Smith, of Anson, for appellee.
   GRISSOM, Justice.

W. O. Rainwater sued the Indian Territory Illuminating Oil Company in a Justice Court of Jones County for $190 damages. In substance, Rainwater alleged the company’s seismograph crew dug a hole about 46 feet deep on a tract of land (where it had a right to be), and about 150 feet from Rainwater’s cistern located upon the adjoining premises, and set off a heavy charge of explosives in the hole causing a vibration which broke the plastered walls of the cistern, resulting in the loss of’the water stored in the cistern and requiring its repair. Judgment in the Justice Court was for plaintiff against defendant for $190, and the company appealed to the County Court. The County Court judgment was for plaintiff against defendant for $100. The company has appealed.

Appellee, Rainwater, questions the jurisdiction of this court because a transcript from the Justice Court to the County Court is not in the transcript on appeal. The transcript shows a judgment for plaintiff against defendant for $190, dated May 21, 1938, signed by the justice and filed in the County Court of Jones County June 9th; an appeal bond approved and filed by the justice May 27th and filed in the County Court June 9th, and defendant’s original answer, filed by the justice May 21st and filed in the County Court on June 9th. We are of the opinion the jurisdiction of the County Court, and, therefore, the jurisdiction of this court, sufficiently appears. Clonts v. Johnson, 116 Tex. 489, 497, 294 S.W. 844.

Appellant contends that since there was no actual physical trespass by the defendant and its action was not unlawful, ap-pellee, having failed to prove negligence of the defendant in discharging the explosives, failed to prove a cause of action against defendant.

The cause was submitted to a jury on special issues. There, was no finding of negligence. Negligence was certainly not shown as a matter of law, and we are of the opinion that the evidence was insufficient to have authorized a finding of negligence by the jury had the issue been submitted. Therefore, plaintiff failed to make out his case. It is incumbent upon plaintiff to allege and prove negligence in cases of this character. In Summers Oil and Gas, Permanent Ed., Vol. 4, § 661, p. 58, et seq., there is a most interesting article on the subject. However, we think it has been definitely determined in Texas that in this character of cases allegation and proof of negligence are essential.

In Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 224, our Supreme Court, speaking through Chief Justice Cureton, said: “The storage and use of explosives is clearly within the rule of absolute liability laid down in Rylands v. Fletcher; but, as to these, we have also changed from the common-law rule, and predicate liability upon negligence, in the absence of controlling statutes or facts so obvious as to constitute a nuisance as a matter of law.”

In Comanche Duke Oil Co. v. Texas P. C. & O. Co., Tex.Com.App., 298 S.W. 554, 560, Judge Nickels, in discussing a case wherein suit was brought by the owner of a producing oil well for injuries caused by the discharge of explosives in drilling a well on an adjoining tract of land, causing infiltration of water into the producing well, said: “If the purpose be lawful, physical trespass absent, primary use reasonable, and manner of that use duly careful, consequences are damnum absque; otherwise, injury within proximate causation is redressable. This would appear to have support in ‘blasting’ and ‘explosion’ cases (see Ft. Worth & D. C. R. Co. v. Beauchamp, 95 Tex. 496, 68 S.W. 502, 58 L.R.A. 716, 93 Am.St.Rep. 864; 11 R.C.L. 673, 674; 19 Cyc. 7, 8), in which liability for injuries produced through vibration and shock alone is made to turn upon use or omission of due care in starting the vibrative or concussive waves, and in ‘fire’ cases (see Seale v. Gulf C. & S. F. R. Co., 65 Tex. 274, 57 Am.St.Rep. 602), upon caution observed or forgotten in the act which started or which failed to halt the elements in its journey to neighboring premises.” (Italics ours.)

Also see Cosden Oil Co. v. Sides, Tex.Civ.App., 35 S.W.2d 815, 817; Ft. Worth & D. C. Ry. Co. v. Beauchamp, 95 Tex. 496, 68 S.W. 502, 58 L.R.A. 716, 93 Am.St.Rep. 864; City of Dallas v. Newberg, Tex.Civ.App., 116 S.W.2d 476, writ dismissed; Independent Eastern Torpedo Co. v. Carter, Tex.Civ.App., 131 S.W.2d 125; Missouri Iron & Metal Co. v. Cartwright, Tex.Civ.App., 207 S.W. 397; 11 R.C.L. 674.

The only evidence on the question of care used in discharging the explosives, and the reasonableness of the amount discharged, is found in the testimony of defendant’s witnesses, none of whom testified to facts (so far as has been pointed out) which would authorize a finding of negligence Regardless of what the correct interpretation of the rule that the testimony of interested parties, under certain circumstances, raises a question for the jury may be since the decision of Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332, such defensive testimony alone certainly does not make negligence vel non a question for the decision of the jury.

“In other words, where a plaintiff has the burden of proof on an issue and fails to make sufficient proof thereon to raise a question of fact for the jury, wholly defensive testimony relative thereto by the defendant, though uncorroborated, does not make an issue for the jury.” Dixon v. Cargill, Tex.Civ.App., 104 S.W.2d 101, 103, writ refused.

The situation relative to plaintiff’s pleadings is not discussed for the reason that such deficiencies therein, if any, (in the absence of a contrary showing) will be presumed to have been supplied by oral pleadings. Hart v. Wilson, Tex.Civ.App., 53 S.W.2d 1029; Heidenheimer Strassburger & Co. v. Houston & T. C. Ry. Co., Tex.Civ.App., 197 S.W. 886.

Since plaintiff’s judgment in the County Court was for a smaller amount than in the Justice Court, and the record failing to show a reason for the action of the court in taxing the County Court costs against defendant, such action was error. Arts. 2065, 2066, 2432, Rev.St.1925; Norwood v. Taylor County, Tex.Civ.App., 93 S.W.2d 573, 575, writ dismissed.

Although the question as to the sufficiency of the qualification of an expert witness rests largély in the discretion of the trial court, we are of the opinion that the witness Greer did not sufficiently qualify as an expert on the question of vibrations caused by explosions and their effect to justify his expression of an opinion as to the effect of the explosion in question. Neither did the witness White so qualify. Had White additionally testified to a similarity in the kind and amount of explosives used at the two places mentioned in his testimony, such testimony might have been admissible under the theory recognized in Southern Gas & Gasoline Co. v. Adams & Peters, Tex.Civ.App., 169 S.W. 1143, 1148, writ refused. Also see, Texas & P. Ry. Co. v. Cauble, Tex.Civ.App., 168 S.W. 369; Texas & P. Ry. Co. v. Good, Tex.Civ.App., 151 S.W. 617, 619. However, what defendant’s said witness would have testified to had he been permitted is not shown. Cunningham v. Austin & N. W. Ry. Co., 88 Tex. 534, 31 S.W 629; Hartford Accident & Indemnity Co. v. Harris, Tex.Civ.App., 138 S.W.2d 277, decided by this court February 23, 1940.

Under the situation disclosed by this record, we are not authorized to render judgment. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Reed v. Benjamin State Bank, Tex.Civ.App., 114 S.W.2d 365, 372.

The judgment is reversed and the cause remanded.

On Appellee’s Motion for Rehearing.

In response to appellee’s motion for rehearing, based solely on our decision that the record of the proceedings. in the Justice Court, filed in the County Court and appearing in the transcript on appeal,, was sufficient to show the jurisdiction of the County Court, we have carefully examined the authorities on that question.

The transcript filed in this court on appeal from the County Court does not contain a transcript from the Justice Court certified to by the Justice of the Peace to the effect that it contains “a true and correct copy of all the entries made on his docket in the cause”, as required by Art. 2459, R.S.1925. The transcript filed in this court does contain a judgment, an appeal bond 'and defendant’s answer, filed (and the first two instruments approved) by the justice and filed in the County Court. The record does not contain any instrument purporting to be a certified transcript from the Justice Court filed in the County Court on appeal.

The general rule is that on appeal from a county court judgment in a case originating in a justice court the transcript in the appellate court must contain a transcript of the proceedings in the justice court. There are exceptions to that rule but they are not shown tó he applicable here. 3 Tex.Jur. 400; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Wells v. Driskill, 105 Tex. 77, 145 S.W. 333.

In Perry v. Greer, 110 Tex. 549, 221 S.W. 931, our Supreme Court, in an opinion by Chief Justice Phillips, said that when the transcript filed in a Court of Civil Appeals on an appeal from a County Court judgment in a case originating in a justice court did not contain a transcript of the proceedings in the justice court the appellate court was required to reverse the judgment and remand the case to the County Court, with directions to dismiss it unless its jurisdiction was properly made to appear.

The cited decisions of our Supreme Court have been ponsidered and the rule above stated’ applied. to situations essentially similar to that in the instant case many times. Texas & N. O. R. Co. v. Gray, Tex.Civ.App., 29 S.W.2d 815; American Soda Fountain Co. v. Mason, 55 Tex.Civ.App. 532, 119 S.W. 714; King Collie & Co. v. Dunn, Tex.Civ.App., 146 S.W. 1007; Anderson v. Fidelity Union Cas. Co., Tex.Civ.App., 44 S.W.2d 760; Johnson v. Gibson Bros., Tex.Civ.App., 240 S.W. 667; Nordyke v. James, Tex.Civ.App., 272 S.W. 247; Maxwell v. Dorizas, Tex.Civ.App., 16 S.W.2d 432; Brotherhood of American Yeomen v. Jaggers, Tex.Civ.App., 199 S.W. 1179; Texas Glass & Paint Co. v. Darnell, Tex.Civ.App., 185 S.W. 965; Freeman v. Miller, Tex.Civ.App., 160 S.W. 126; El Continental Pub. Co., Inc. v. Blumenthal, Tex.Civ.App., 63 S.W.2d 1056; Consumers’ Fertilizer Co. v. J. M. Badt & Co., Tex.Civ.App., 157 S.W. 226; Franklin Fire Ins. Co. v. Shadid, Tex.Civ.App., 45 S.W.2d 769; Beaumont Majestic Co. v. Berwick, Tex.Civ.App., 87 S.W.2d 1116; Flake v. H. C. Meacham Co., Tex.Civ.App., 13 S.W.2d 897; Headstream v. Mangum, Tex.Civ.App., 129 S.W.2d 1155. Also see, Fruit Dispatch Co. v. Rainey, 111 Tex. 266, 232 S.W. 281; Blalock v. Slocumb, Tex.Com.App., 245 S.W. 648; Satterfield, Inc. v. Rumley, Tex.Civ.App., 121 S.W.2d 390; Texas Indemnity Ins. Co. v. Moss, Tex.Civ.App., 18 S.W.2d 712; Houston & T. C. Ry. Co. v. Parker, 104 Tex. 162,

135 S.W. 369; Fitzgerald v. Lane, Tex.Civ.App., 126 S.W.2d 64, 71; 15 Tex.Law Rev. 504.

Appellee called attention to the absence of the justice' court transcript in his brief filed in this court on November 25, 1939, and asserted this court lacked jurisdiction to review the case on appeal for that reason. With this knowledge of the condition of the record no action has-been taken to perfect it. We assume the parties either cannot or do not desire to-do so. Being convinced that our.former opinion on this question is erroneous, it becomes our duty to set aside our former judgment, grant appellee’s motion for rehearing, and reverse the judgment and remand the case to the County Court, with-directions to dismiss it unless its jurisdiction is properly made to appear, and to tax the costs of appeal against appellant. Universal Credit Co. v. Adcock, Tex.Civ.App., 129 S.W.2d 1199; Headstream v. Mangum, Tex.Civ.App., 129 S.W.2d 1155, 1156.

It is so ordered.

On Appellant’s Motion for Rehearing.

On March 8, 1940, the judgment of the trial court in this cause was reversed and the cause remanded. On April 12, appellee’s motion for rehearing was-granted, our former order set aside, and! judgment rendered reversing the judgment and remanding the case to the trial court,, with directions to dismiss it, unless the-jurisdiction of the County Court was shown. The reason therefor was that the-transcript in this court failed to show a transcript from the justice court filed in-the County Court. Thereafter the transcript in this court was supplemented by adding thereto a transcript from the justice court filed in the .County Court, prior to the trial in the County Court. Therefore, the jurisdiction of the County Court is shown. Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Texas Indemnity Ins. Co. v. Moss, Tex.Civ.App., 18 S.W.2d 712.

Appellant’s motion for rehearing is-granted; our former judgment reversing the judgment and remanding the cause to-the county court, with directions to dismiss the case, unless the jurisdiction of the County Court was shown, is set aside;, the judgment is reversed and the case remanded.


author: JOHNSON, Chief Justice,

text:
    BROWN et al. v. CONNOR et al.
    No. 5481.
    Court of Civil Appeals of Texas. Texarkana.
    May 2, 1940.
    Scott, Hall & Lindsay, of Marshall, for appellants.
    Renfro & Kilgore, of Dallas, for appel-lees.
   JOHNSON, Chief Justice,

W. T. Connor, Jr., O. W. Connor, and M. A. Connor filed this suit in trespass to try title against Horace C. Brown, D. B. Oliver, George F. Brown, E. Kelly Brown, John Lingoldi and F. M. Scott, individually and as independent executor of the estate of Daisy W. Brown, deceased/ for the recovery of Block No. 30, being approximately SO acres, of the En-nis Ury H. R. Survey in Marion County. In addition to the allegations of statutory trespass to try title, plaintiffs specially alleged that in a deed from the First National Bank of Taylor, Texas, to G. W. Brown and in a deed from G. W. Brown to W. F. Hull that Block No. 21 instead of Block No. 30 as.recited therein, was intended to be excepted from said conveyances. Plaintiffs further alleged that Brown Lumber Company was the common source of title. The defendants answered by general demurrer, general denial, and a plea of not guilty.

The Ennis Ury Survey contains a subdivision of thirty blocks numbered from 1 to 30 inclusive, each of' which contains approximately 50 acres of land. June 20, 1916, Brown Lumber Company conveyed to the First National Bank of Taylor, Texas, 965 acres out of the Ennis Ury Survey which included Block No. 30. September 19, 1919, the First National Bank of Taylor quitclaimed to G. W. Brown its interest in the whole of the tract of land included within said blocks 1 to 30, inclusive, then excepted therefrom twelve blocks, among those excepted was Block No. 30. September 22, 1919, G. W. Brown and wife, Daisy Brown, conveyed to W. F. Hull by. general warranty deed the whole of the tract of land embraced within said thirty blocks, save and except twelve blocks, among those excepted was block No. 30.

November 26, 1923, Mrs. J. Ora Hull by warranty deed reciting that she was “a widow”, conveyed to M. C. Hull said thirty blocks of land, less twelve blocks,- among those excepted was Block No. 30. December 5, 1923, M. C. Hull and wife conveyed to J. H. Ethridge and C. M. Reid said thirty blocks of land, less twelve blocks, among those excepted was Block No. 30. January 4, 1924, C. M. Reid and wife and J. H. Ethridge conveyed to Mary L. Manning said thirty blocks of land, less twelve blocks, among those excepted was Block Ño. 30. September 24, 1926, Mary L. Manning conveyed to C. M. Reid said thirty blocks of land, less twelve blocks, among those excepted was Block No. 30. April 29, 1927, C. M. Reid and wife executed a deed of trust to J. M. Curry, Trustee, for the benefit of Connor Brothers, a partnership composed of W. T. Connor, Jr., O. W. Connor, and M'. A. Connor, on said thirty blocks of land, except twelve, blocks, among those excepted was Block No. 30. June 5, 1934, J. M. Curry, Trustee, acting under the authority contained in said deed of trust, conveyed to said Connor Brothers said thirty blocks of land, except twelve blocks, among those excepted was Block No. 30.

On September 17, 1937, M. C. Hull, Mittie Hull Ward, joined by her husband, Cecil D. Ward, Zelda Mae Currin, joined by her husband, R. W. Currin, Deryl Hull and Fred Hull by quitclaim deed reciting that they were “all of the surviving heirs of W. F. Hull and J. Ora Hull, deceased,” quitclaimed to W. T. Connor, Jr., O. W. Connor, and M. A. Connor, all their right, title and interest in and to said thirty blocks of land, save and except twelve blocks. Block No. 30 was not among the blocks excepted from the conveyance. August 3, 1936, the First Taylor National Bank of Taylor, Texas, successor to the First National Bank of Taylor, Texas, by quitclaim deed quitclaimed to F. M. Scott, Independent Executor of the Estate of Mrs. Daisy Brown, deceased, all its right, title and interest in and to said Block No. 30.

Two special issues were submitted to the jury, in response to which they found: (1) That “in the deed from the First National Bank of Taylor to G. W. Brown it was intended to except tract No. 21 instead of tract No. 30”; and (2) “in the deed from G. W. Brown and wife, Daisy Brown, to W. F. Hull it was intended to except from their conveyance tract No. 21 instead of tract' No. 30.” Defendants’ motion for judgment was overruled and judgment for plaintiffs was entered upon the verdict of the jury. From an order overruling their motion for new trial defendants have appealed.

In their motion for judgment and for new trial, and in their assignments of error and propositions here presented, appellants make the contention that appel-lees, plaintiffs below, fail to show title into themselves, either from the State or from Brown Lumber Company, the alleged common source, in that they fail to show any evidence of title out of W. F. Hull. The contention is sustained. Appellees show a conveyance of Block No. 30 from Brown Lumber Company to First National Bank of Taylor; a conveyance by First National Bank of Taylor to G. W. Brown, and a finding of the jury that Block No. 30 was intended to- be included therein; a conveyance from G. W. Brown and wife, Daisy Brown, to W. F. Hull, and a finding of the jury that Block No. 30 was intended to be included therein. Appellees introduced no evidence of title from or out of W. F. Hull. The quitclaim deed dated September 17, 1937, from M. C. Hull and others above mentioned recites that they were “all of the surviving heirs of W. F. Hull and J. Ora Hull, deceased,” but there is no testimony, or other legal showing, that they were such heirs. The recital in said deed is not evidence of that fact, as against appellants. “Recitals in a deed are evidence against the parties to such, deed and their privies, but not against strangers.” Watkins v. Smith, 91 Tex. 589, 45 S.W. 560, 561; McCoy v. Pease, 17 Tex.Civ.App. 303, 42 S.W. 659; Teagarden v. Patten, 48 Tex.Civ.App. 571, 107 S.W. 909; Stuart v. Harper, Tex.Civ.App., 143 S.W. 712; Whitman v. Aldrich, Tex.Civ.App., 157 S.W. 464; Orr v. Armstrong, Tex.Civ.App., 81 S.W.2d 710; Roberts v. Waddell, Tex.Civ.App., 94 S.W.2d 211; Wilder v. American Produce Co., Tex.Civ.App., 106 S.W.2d 1073.

Appellees make contention to the effect that the recital in said deed, taken together with a statement to the same effect, that is, that said M. C. Hull and others named in said deed were the surviving heirs of W. F. Hull and J. Ora Hull, deceased, made by an attorney for appellees at the beginning of the trial, should be held sufficient to establish such heirship. The statement of facts shows that such an unsworn statement was made by an attorney for appellees, but the statement of facts further expressly shows that attorneys for appellants did not consent or in any wise agree to such statement. In such circumstances we do not think such statement can be considered for any purpose.

Appellees further contend that the judgment of the trial court should be affirmed under the rule that in trespass to try title a plaintiff may recover upon a showing of prior possession. Such is a general rale of law, but appellees do not in point of fact bring themselves within the rule. We have examined the statement of facts, and it fails to show that appellees have ever had possession of Block No. 30 or any part of it.

The judgment of the trial court will be reversed and the cause remanded.


author: BOND, Chief Justice.

text:
    WALTON v. STINSON et al.
    No. 12851.
    Court of Civil Appeals of Texas. Dallas.
    March 30, 1940.
    Rehearing Denied May 11, 1940.
    W. E. Pinkston and W. L. Curtis, both of Dallas, for appellant.
    Lively, Dougherty & Alexander, of Dallas, for appellees.
   BOND, Chief Justice.

This appeal is from a plaintiffs’ judgment in an action of trespass to try title. To such a suit, filed by Jeff D. Stinson and Claude C. Westerfeld against Wash Walton, the latter answered by a plea of not guilty, and the three, five, ten, and twenty-five year statute of limitation; also interposing a cross action against plaintiffs, asserting title to an acreage which included the land described in plaintiff’s petition. Defendant claimed ownership of the entire realty, with peaceable, adverse possession thereof for more than twenty-five years, holding under recorded deed or deeds; and for damages in the sum of $10,000, the value of six houses situated on the property, alleged to have been destroyed. All issues being properly joined, the case proceeded to a jury trial, when, after submission of evidence, the court ruled that no issues of fact appeared, and withdrew the case from the jury. Thereafter, judgment was rendered for plaintiffs as prayed, and against the defendant on his cross action.

The present litigation grew out of cause No. 24797-A in the County Court of Dallas County at Law, styled A. L. Moody v. Wisdom et al., wherein Moody secured judgment for $268, with interest. Execution issued, was placed with the constable and the property here involved sold on September 8, 1917. An insufficient amount was realized to satisfy the judgment, and thereafter, on August 23, 1926, the same was duly abstracted. Later, cause No. 41551-A/D, O. L. Moody v. Wash Walton, was filed in the 95th District Court of Dallas County, to foreclose the judgment lien on the same property; a jury trial and verdict on many issues resulted in another judgment of date January 10, 1931, under which such property was sold by sheriff’s deed to plaintiff Stinson, on February 2, 1932. The judgment in cause No. 41551-D recites that the credit given in the county court case, No. 24797-A, by virtue of the sale in 1917, was canceled and held for naught. The statement of facts herein sets forth the jury verdict in the district court case, No. 41551-D, issues 19 and 20 being:

“(19) From a preponderance of the evidence before you, how much principal and interest do you find and believe there would now be due upon the judgment obtained by the plaintiff, O. L. Moody, against the defendant, Wash Walton, in the county court case of Moody v. Wisdom in the event no credits have been made upon said judgment; and in answering this question you are instructed that you cannot find more than $483.74. Answer in dollars and cents. Answer: No Dollars, no cents.
“(20) Do you find and believe from a preponderance of the evidence before you that the three acres of land described in the petition of plaintiff, O. L. Moody, is now the homestead of the defendant, Wash Walton? Your answer to this issue will be No. Answer: No.”

The court’s decree in the suit just referred to established a judgment lien for the amount of $483.74, and foreclosed same, in part reciting: “It is therefore ordered, adjudged and decreed by the court that the judgment lien as it existed July 22nd, 1927, and as it has at any and all times since existed upon the above mentioned land hereinafter fully described be and the same is hereby recognized, established and foreclosed and the clerk of this court is hereby ordered and directed to issue an order of sale directed to the sheriff or any constable of Dallas County commanding him to seize and sell the said tract of land as under execution and he is directed to apply the proceeds thereof to the payment and satisfaction of the said sum of $483.74, together with all interest that may hereafter be . due thereon as aforesaid, and the costs of this suit, and if the said land shall sell for more than sufficient to pay off and satisfy said sum of money then the said officer is directed to pay over the excess to the defendant, Wash Walton, unless otherwise hereinafter provided.”

Appellant here contends, (1) that the judgment in cause No. 41551-D, O. L. Moody v. Wash Walton, is wholly void perforce of the jury answer — “No Dollars, no cents.”, to the issue No. 19 above; the court fixing a judgment lien for $483.74 in the face of issue 19, and without setting same aside; (2) the original county court judgment being abstracted August 23, 1926, at a time when the property was indisputably homestead, no judgment lien was fixed, nor could one attach upon the granting of divorce to Ellen Walton from Wash Walton, defendant (July 22, 1927), or thereafter; (3) plaintiffs neither plead nor proved any title, facts or circumstances that would interrupt the running of limitation under said Walton’s peaceable and adverse possession for ten and twenty-five years. Vernon’s Ann.Civ.St. arts. 5510, 5519.

The following conclusions are obvious: That in cause 41551-D, the 95th District Court had jurisdiction of the parties and subject matter involved; that the judgment offered in evidence was a final judgment in said cause, as recorded in the court minutes; and that the present cross action of appellant Walton constitutes a collateral attack upon that judgment. But appellant argues that the particular judgment in cause No. 41551-D is void on its face, and subject to secondary attack, because contrary to and in conflict with jury issue No. 19 incorporated into and made a part of such final order. Hence, the single inquiry here is, Did the court render a wholly invalid judgment by disregarding issue 19 and the jury answer thereto?

In order for a judgment to be subject to a collateral attack, it must be absolutely void; if merely voidable, such an instrument must be assailed in a direct proceeding. 25 Tex.Jur., Judgments, secs. 252, 278, pp. 687, 688, 738, 739. And in Crow v. Van Ness, Tex.Civ.App., 232 S.W. 539, 541, is quoted the equally well-settled rule from Freeman on Judgments: “If a judgment is void it must be from one or more of the following causes: (1) Want of jurisdiction over the subject-matter; (2) want of jurisdiction over the parties to the action, or some of them; (3) want of power to grant the relief contained in the judgment. In pronouncing judgments of the first and second class, the court acts without jurisdiction, while in those of the third class it acts in excess of jurisdiction.” The pleadings in cause No. 41551 are not a part of this record, in the absence of which, we cannot hold that the 95th District Court should have either rendered judgment on the jury verdict (including issue 19), or granted a new trial, Art. 2209, R.S.; or that it acted in excess of its jurisdiction by disregarding said issue in rendering judgment. Even before the existence of present Art. 2211, R.S., Vernon’s Ann.Civ.St. art. 2211, courts in certain cases were authorized to render judgments, notwithstanding the verdict. This well recognized exception was applied in Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340, 341, in the statement, “* * * where, under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission of the issues and the findings of the jury are immaterial, and may be disregarded by the court.” (Citing many authorities.) An immaterial issue may be ignored by the court in rendering judgment. Miller v. Lemm, Tex.Com.App., 276 S.W. 211; and in Fant v. Sullivan, Tex.Civ.App., 152 S.W. 515, 524, writ refused, the court said: “ * * * the mere fact that the judgment itself recites that the court rendered same notwithstanding the verdict would not render such judgment void.” So, in cause No. 41551, there were several contingencies under which the court had jurisdiction to render judgment in the face of issue 19. An erroneous judgment may have followed, voidable on direct attack, but the particular judgment was not wholly void so as to be susceptible to collateral attack. The authorities relied on by appellant involve direct appeals, and, as stated in 25 Tex.Jur., supra, p. 739, “* * * many errors which would be fatal to the judgment on a direct attack are wholly immaterial on a collateral attack. And decisions holding a judgment be void on a direct attack are not authorities on a collateral attack.”

Appellant’s succeeding proposition is to the effect that on and prior to August 23, 1926, the property in question was undeniably homestead, hence the abstracting of the Moody judgment on said date was a void act; and the judgment in cause 41551, attempting to declare a lien to exist from and after July 22, 1927, was void. The jury found in said cause (41551) that on January 10, 1931, the property in suit was not the homestead of defendant Wash Walton. A duly recorded judgment lien against the owner of land which is exempt will, however, attach to the property when- it ceases to be a homestead, if, at such time, it is still owned by the judgment debtor. Marks v. Bell, 10 Tex.Civ.App. 587, 31 S.W. 699, writ refused; Glasscock v. Stringer, Tex.Civ.App., 33 S.W. 677, writ refused.

Neither can the homestead question be re-litigated in this subsequent and collateral suit. The issue was both raised and adjudicated in the aforementioned litigation, the judgment in which is conclusive between the parties and their privies. Defendants’ claim of limitation is ineffectual. The statutes invoked would not begin to run until after date of sheriff’s deed to plaintiff, — February 2, 1932.

We conclude the contentions of appellant should be overruled and, therefore, affirm the judgment of the trial court.

Affirmed.


author: PRICE, Chief Justice.

text:
    J. C. ENGELMAN, Inc., v. SANDERS NURSERY CO., Inc.
    No. 3923.
    Court of Civil Appeals of Texas. El Paso.
    March 28, 1940.
    Rehearing Denied May 16, 1940.

      Smith & Hall, of Edinburg, for appellant.
    Paul G. Greenwood, of Harlingen, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of Hidalgo County, Texas. It was an action on a contract involving the sale and delivery of 18,700 citrus trees. The trial was to a jury, the case being submitted on special issues, and judgment was entered against defendant in the sum of $19,160.09. Appeal was perfected by the defendant from the judgment and the case is here for review.

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

This is the second appeal of this case. On the former trial the judgment was in favor of defendant, and plaintiff appealed therefrom to the Court of Civil Appeals at San Antonio. The last opinion of the San Antonio Court in the case appears in the case of Sanders Nursery Company, Inc. v. J. C. Engelman, Inc., 109 S.W.2d 1131. The case was reversed and remanded, and application for writ of error was duly made by the appellee there. This application was dismissed by the Supreme Court. In Judge Slatton’s opinion, referred to above, there is .set forth the proceedings on appeal prior to that opinion.

We deem an extensive statement of the pleadings unnecessary. The writings alleged to constitute the contract between the parties are attached to plaintiff’s petition as exhibits, and the same will be hereinafter copied in full.

Plaintiff alleged the contract, its performance thereof, the breach by defendant, and the damages resultant therefrom.

Defendant’s pleadings are somewhat lengthy, but may be summarized as consisting of a general denial, a denial of any definite contract obligation on its part to receive and pay for the 18,700 trees, the subject matter .of the litigation; and, further, that if contract there was and a breach thereof by defendant, that, in accordance with the terms of the contract, there had been an accord and satisfaction, in that there was a provision in the contract for liquidated damages and a satisfaction by defendant of said provisions for liquidated damages.

Now will be set out the writings alleged to embody the contract obligation between the parties.

“This contract, this day made and entered into by and between Sanders Nursery Company, Inc., of La Feria, Texas, hereinafter referred to as Seller, and J. C. Engelman, Inc., of Edinburg, Texas, hereinafter referred to as Purchaser, Witnesseth:

“That in consideration of the mutual promises and agreements herein contained, it is agreed that the Seller does hereby promise to sell to Purchaser and Purchaser does hereby promise and agree to purchase from the Seller, fifty thousand (50,000) citrus fruit trees which are to be designated as to variety on or before October 1st, 1929, said trees to caliper at time of delivery ⅝ inches or larger and said trees to be from seedlings now growing in Seller’s nursery in Lot East 7 acres of Block #2 Black Bros. Sub.
“It is understood and agreed between the parties' that the above mentioned trees are to be delivered upon order of the purchaser between December 1st, 1930, and April 1st, 1931, arid more specifically as follows; to-wit,
“Fifteen thousand (15,000) trees on or before January 1st, 1931, and an additional fifteen thousand (15,000) trees on or before February 18th, 1931, and the balance of trees to be delivered on or before April 1st, 1931. Purchaser agrees to order not less than one thousand (1,000) nor more than eighteen hundred (1800) trees and Seller agrees to deliver not less than one thousand (1,000) trees nor more than eighteen hundred (1800) trees in any one day. Said trees to be delivered at shed provided for that purpose by Purchaser at the Engelman Ranch in Hidalgo County, Texas.
“It. is understood and agreed that the consideration and payment for. above mentioned trees is and shall be as follows; to-wit,
“Forty-five cents (45^) per tree in cash on each Saturday of each week following date of delivery. One promissory note in the amount equivalent to twenty-two and one-half cents (22½⅜) per tree due and payable in one hundred twerity days (120) after date. Said notes executed each Saturday night of each week following date of delivery and bearing six per cent (6%) interest from date until due.
“It is further understood and agreed that Purchaser shall and will within fifteen (15) days from date, place in the First National Bank of La Feria, Texas, vendor’s lien notes and other good acceptable securities to the value of five thousand and no/100 ($5,000.00) Dollars, to there remain in escrow until the consummation of this contract, unless and until Purchaser fails in anywise in his part of this contract. Upon such failure on part of Purchaser to carry out the terms of this contract, the said five thousand and no/100 ($5,000.00) in securities shall be paid over to the Seller as, liquidated damages. Upon the consummation of this contract without failure as above mentioned on part of Purchaser, the said securities shall be returned to Purchaser. The above mentioned five thousand and no/100 ($5,000.00) dollars in vendor’s-lien notes and or other good and acceptable securities shall in nowise be considered, as collateral on any promissory notes or payments herein mentioned. Purchaser shall have the privilege of- substituting abpve mentioned securities as and when it deems it necessary, providing however, such securities are acceptable.
“The Seller further promises and agrees that all of said trees shall be merchantable stock, in healthy condition commercially, and shall furnish certificate of budwood used in budding said trees.
“It is further mutually agreed and understood that in the event any of said trees shall become injured by frost or the elements, or by any cause beyond control of the Seller, before, delivery,-then upon the refunding to Purchaser of all moneys paid under this Agreement, over and above purchase price of trees then delivered, it shall ipso facto be terminated and each party released from all liabilities hereunder; also that the Seller shall not be held responsible for delay in delivery caused by strikes, lockouts, delay in transportation, weather conditions, or causes over which Seller has no control.
“It is further agreed and understood that delivery of trees under this contract shall be such trees of size and quality as are herein provided, now growing in nursery of Seller, located on Lot E 7 A, Block #2, Subdivision Black located- on Lot -, Block -. It' being understood and agreed that Purchaser has first choice and selection of trees in first described nursery and Seller agrees not to sell any trees, from first described nursery except in delivering under this contract until this contract has been consummated.
“It is further agreed and understood that the Seller shall not be held responsible for damages to trees caused by freezing or damage from other causes over which the Seller has no control after delivery thereof.
“It is further agreed that all the terms of this contract shall apply to and inure to and bind the heirs, executors, administrators, assigns and successors of the parties hereto.
“In witness whereof, the parties hereto have hereunto set their hands in duplicate, this 15th day of August, A. D. 1929.
“Sanders Nursery Co., Inc.,
“J. W. Sanders, Sec. & Treas.
“J. C. Engelman, Inc.,
“By L. L. Harwell.”
“Edinburg, Texas, R. F. D. No. 1,
“Nov. 18, 1929.
“Sanders Bros.,
“La Feria, Texas.
“Gentlemen:
“Confirming conversation in connection with the contract covering the growing of 50,000 trees for 1930 delivery, please bud same in the following varieties:
2500 — Norris Oranges
2000 — Temple
2000 — Tangerine Davey
2500 — Valencia Oranges
2000 — Pineapple “
5000 — Marsh Pink
1000 — Washington Navels
33000 — Marsh Seedless
50000
“Thanking you, we remain,
“Yours very truly,
“AC:S “J. C. Engelman, Inc.,
“By A. L. Cramer.”
“Edinburg, Texas, R. F. D. No. 1
“Nov. 22, 1930.
“Sanders Nursery Company, Inc.,
“La Feria, Texas.
“Gentlemen:
“Confirming conversation this date, with reference to Tree Purchasing Agreement executed August 15th, A. D. 1929, by and between your Company and the undersigned, under which you agreed to sell and we agreed to purchase during the period of December 1st, 1930 and April 1st, 1931, fifty thousand citrus trees,—
“It Is Now Understood and Agreed that, during this period you will deliver thirty--one thousand three hundred (31,300) citrus trees of the following varieties:—
20,000 Marsh Seedless Grape Fruit Trees
5,000 Pink Marsh “
1,500 Valencia Orange Trees
600 Navel " "
750 Tangerines
1,200 Pineapple Orange Trees
750 Temple
1,500 Norris
Total-31,300-Citrus Trees..
“Delivery of above mentioned varieties to be made in accordance with the terms of said contract and the number of trees delivered to be proportionately reduced in the same ratio as the total is being reduced.
“It, however, being Understood and Agreed that you will sell and we will purchase the eighteen thousand seven hundred (18,700) trees during the season of December 1st, 1931 and April 1st, 1932, at the same price, under the same terms, conditions and agreements, as are contained in the above described contract, and the variety of the said eighteen thousand seven hundred (18,700) trees to be mutually agreed upon between now and February 1st, 1931.
(Page 2) -2-
Sanders Nursery Co., Inc., 11/22/30
“It being the intention of this letter that, instead of delivering fifty thousand (50,-000) trees under said contract during the coming planting season, you are to deliver thirty-one thousand three hundred (31,300) trees and deliver eighteen thousand seven hundred (18,700) trees one (1) year later and all terms and agreements in said contract, including price, to be ' governed by said contract.
“This letter is mailed to you in duplicate and we ask that you accept same on one copy, returning the accepted copy to us to be attached to and become a part of said contract.
“Yours very truly,
“J. C. Engelman, Inc.,
“ALC :S “By A. L. Cramer
“CC
“We accept same, with reference to agreements, conditions and changes in Tree Purchase Agreement, as set out in above letter.

Defendant contended in the trial court, and contends here, that it, under the undisputed evidence, was entitled to have a ver-diet instructed in its favor. The basis of this contention is that there was no contract obligation on its part to receive and pay for the 18,700 trees in question. To be more specific, that under the letter of November 22, 1930, hereinbefore copied, before there was a perfect contractual obligation with reference to the 18,700 trees involved herein, it was necessary that plaintiff and defendant agree upon varieties of the trees contemplated to be grown and furnished thereunder, and there never was such agreement.

A correct disposition of this contention involves a construction of the writings embodying the contract or contracts between the parties. A consideration of the general situation of the parties at the times involved is permissible and perhaps necessary in the consideration of the question.

Plaintiff was engaged in growing for sale citrus trees for planting in orchards. This process involved the growing of seedlings, and thereafter budding of the seedlings to some other tree and thus producing the variety desired. The growing of seedlings is rather expeditious and a great expense is not involved in the process. The budding is to the seedling from the variety desired, and this budding determines the variety. After budding, if same is successful, it requires approximately a year’s growth and attention before the young citrus tree is suitable for transplanting to an orchard.

Defendant was engaged in the planting of tracts of land in Cameron and surrounding counties in the citrus-belt to citrus fruit, and thereafter selling same for a profit. Its operations were rather extensive, and in the prosecution thereof a large number of citrus trees of various varieties suitable for planting were required.

It is elementary that, to constitute a binding contract between parties, it is necessary that the mutual assent of each party to the material terms thereof be expressed therein. Further, if the agreement sought to be enforced as a contract leaves material matter open for further negotiation and agreement, it is not an enforceable contract on account of not being definite and certain. 10 Tex.Jur., Sect. 13, pp. 27-30.

In discussing the principle that an offer, when accepted, must be capable of creating a definite obligation, Williston, in his great work on contracts, has this to say: “In construing such agreements a court should endeavor, if possible, to-attach a sufficiently definite meaning to a bargain of parties who evidently intend to enter into a binding contract and ambiguous words in an obligation should be construed most strongly against the party who used them.” Williston on Contracts, Vol. 1, Sect. 37.

The indefiniteness claimed in this contract is that, under the modification of November 22, 1930, as respecting the 18,700 trees, -the varieties are not specified. We think, under the evidence, that the variety of the trees to be grown was clearly material to defendant. In the event that plaintiff had sufficient time within which,, by budding, to produce a given variety, it was immaterial to plaintiff. Under our understanding of the record one variety could be produced by budding as cheaply as another, the production of seedlings was relatively expeditious and inexpensive.

It will be noted that the contract of August 15, 1929 provides as to varieties, “to be designated as to variety on or before October 1, 1929.” As to how this designation is to be made the contract faifé to specifically provide.

In our opinion, taking into consideration all the surrounding facts and circumstances as disclosed by the evidence, this contract gave the defendant the privilege of designating the variety of trees. A decision of this question is not necessary because, under the letter of November 18, 1929, the trees desired were designated by defendant. However, unquestionably, on August 15, 1929, defendant deemed it had a binding contract with plaintiff. It will be observed that the contract of that date provides for the deposit of securities in the sum of $5,000 guaranteeing the performance on the part of the defendant of its purported obligations thereunder. Defendant complied with this provision of the contract, not in its exact literal terms, but in a manner in accordance with the subsequent mutual agreement between the parties. This compliance was by permitting plaintiff to retain the sum of $3,000 of money due the defendant. In respect to this obligation of defendant it was no longer executory, but discharged. It would be the height of absurdity to assume that defendant put up $3,000 to guarantee its performance of a contract which it deemed did not bind it in any way.

After the letter of November 22, 1930, it seems that plaintiff took steps to. perform its contract with defendant. Plaintiff, unquestionably, budded a large number of seedlings to the respective varieties designated by defendant. The letter of November 22, 1930 was written by defendant and assented to by plaintiff very shortly before the delivery of the trees was to commence under the contract of August 15, 1929. The obligation as to the 31,300 trees under the modified contracts was mutually discharged by the parties.

As has been stated, the question here is as to whether, after the letter of November 22d, there was a contract of perfect obligation for the production and sale of the 18,700 trees. In regard to the situation on and after November 22d, we may say, as we said in regard to the contract of August 15, 1929, defendant evidently considered such a contract existed. After November 22, 1930, it was agreed that plaintiff should retain $1,500 of the money of defendant to guarantee defendant’s performance of its obligations under the contract. The only obligations subsisting were on the assumption that there was a contract of perfect obligations between the parties for the production of the 18,700 trees. If by a reasonable construction this purpose or belief can be effectuated, this is the proper construction of the contract.

This contract was the identical contract before the Court of Appeals and the Supreme Court on the former appeal. The first consideration on the merits of the case by the Court of Civil Appeals is reported in 66 S.W.2d 509. There in the opinion it was impliedly stated that as to whether the provision as to liquidated damages was valid and binding as such under the pleadings was a question of fact. The findings of the trial court on that issue being in favor of defendant, the statement of facts not being before the appellate court, the judgment was affirmed.

The Supreme Court granted plaintiff’s application for a writ of error. The opinion of the Commission of Appeals appears in 128 Tex. 102, 96 S.W.2d 68. Under the decision of the Commission of Appeals, that the Court of Civil Appeals erred in striking out the statement of facts, and facts being involved, it was remanded to the Court of Civil Appeals for further consideration. In 109 S.W.2d 1131, supra, appears the decision of the San Antonio Court on the remand. The decision was that the cause be reversed and remanded to the trial court for a new trial. Defendant made application for writ of error to the Supreme Court. The Supreme Court dismissed this application. It is unfortunate that we have not the advantage of knowing the basis of this dismissal. It may have been that there was a correct judgment or for a lack of jurisdiction. Wq have not the record before us of this former appeal. It is stated in the brief of plaintiff that defendant sought to sustain the judgment of the trial court in its favor on the ground that the alleged contract was too indefinite to be enforced; that this ground was urged in both the Court of Appeals and the Supreme Court. These statements, we believe, are not challenged by appellant.

The questions before the Court of Appeals in the two considerations of the case were whether the judgment of the trial court should be affirmed, reversed and remanded, or reversed and rendered. It is true, in its last consideration the opinion is largely devoted to a discussion as to whether the provision for damages was a valid provision for -liquidated damages, or merely provided for a penalty. It was held clearly and distinctly that as a matter of law same was not necessarily a valid provision for liquidated damages. We think, further, that it was held that such provision was a penalty and not for liquidated damages. If, under any theory presented, a justification of the trial court’s judgment was presented, it is clear that the judgment of the trial court would have been affirmed. The correctness of the decision reversing the case was challenged, we feel sure, in the application for writ of error.

We do not mean to hold that we are bound to hold that there were definite enforceable contractual obligations between the parties as to the 18,700 trees after November 22, 1930 on account of the holdings on the former appeal. It may be that this question was not considered from the. standpoint here presented. We think, however, that consideration was given by both the Court of Appeals and the Supreme Court to this matter, and that the cause would not have-been remanded for retrial had it not been deemed that there were matters of fact to be determined between, thé parties. The view that there were - stich matters of fact is in accord with our view. The question was in the scope of the decision and may have been thereby adjudicated. 1 A.L.R. 725.

If, on and after November 22, 1930, there were perfect obligations existing between the parties with reference to the 18,700 trees, the duty then arises to declare and delineate such obligation or obligations.

One of the circumstances surrounding the agreement of November 22, 1930, was that at that time there was a binding definite contract of sale of 50,000 citrus trees, the varieties of which were definitely known and designated. The writing of November 22, 1930, by its terms, refers to the contract of August 15, 1929, and as to the 18,700 trees therein mentioned, purports to make the same applicable thereto in many particulars. The next to the last paragraph of such letter contains this phrase: “and deliver eighteen thousand seven hundred (18,700) trees one (1) year later and all terms and agreements in said contract, including price, to be governed by said contract.” In regard to the 31,300 trees, it purports to govern the delivery in accordance with the terms of the previously existing contract, save that the numbers are to be proportionately reduced. The purchase and delivery of the 18,700 trees during the season of December 1, 1931 and April 1, 1932, were to be at the same price, under the same terms, conditions and agreements as are contained in the above described, contract. Then follows the provision claimed to render same nugatory as to the 18,700 trees, “and the variety of said 18,700 trees to be mutually agreed upon between now and February 1, 1931.”

Now, we believe, taking into consideration the subject matter of the contract, the situation of the parties, the previous valid contract ’ between the parties, that it was intended thereby to give the defendant the privilege of selecting, prior to February 1, 1931, the varieties of the trees to be furnished. If this be a true construction of the provision, the question still remains, What would be the effect on the obligation if defendant failed to designate the varieties? It is beyond dispute that the defendant made no designation as to varieties to be furnished, and that subsequent to November 22, 1930 there was no further agreement between the parties as to varieties. Defendant contends that the references in the letter under question are to the contract of August 15, 1929, as same existed on that date. Further, that it was not intended that the Original contract, as supplemented by the letter of November 18, 1929, should be taken into consideration. Certain it is, that the varieties designated in the'letter of November 18, 1929 are incorporated in the letter of November 22, 1930. The number of each variety is reduced, but the varieties are the same in each writing. We think it was the intention of the parties to keep in force and effect, in relation to the 18,700 trees, the contract of' August 15,1929, as same existed immediately prior to November 22, 1930, in all substantial particulars. It is true, the date of the delivery of the 18,700 trees was post-' poned from one growing season to another ; that the privilege of selection was accorded defendant.

Our construction in this respect harmonizes with our construction of'the original contract in regard to the designation of the variety of the trees. In fact, in the two writings'we think the terms “designation” and “mutual agreement” have practically the same meaning. The same practical effect is arrived at if it is held that the term in the letter, “varieties to be mutually agreed upon,” be held too vague and indefinite to effect a change in the provisions of the original contract. The construction we have made, we think, takes into consideration the meaning of all the language used. It is a construction in the light of the primary and secondary rules to aid in the construction of contracts. No issue was submitted by the trial court involving the construction of the contract. The designation of November 18, 1929 was held as a matter of law to govern.

The contract of November 22, 1930 was not an abrogation of the contract as to the 50,000 trees — it was an alteration and modification of the terms of an existing contract. The only material change was an extension of time of delivery of 18,700 trees.

It is our opinion that, under the contract as modified on November 22, 1930, plaintiff was bound to produce the 18,700 trees in question, and defendant, not having designated varieties prior to February 1, 1931, was legally bound by the designation made in the letter of November 18, 1929 as to the varieties.

As has been before stated, the case was submitted to the jury on special issues. No. 1 was, in substance, as to plaintiff being at all times ready and able, between December 1, 1931 and April 1, 1932, to deliver the 18,700 citrus trees in question. The question specifically enumerating the variety of the trees, and assuming that they were to be the same as designated in the letter of November 18, 1929. The number of each variety was' arrived at by subtracting from the number of each variety designated in the letter of November 18, 1929 the number of that variety designated in the modification of November 22, 1930. This issue was answered in the affirmative. No. 2 was as to whether, on June 22, 1932, the date of the former trial, these 18,700 trees were tendered in the contemplated condition to defendant. It was answered in the affirmative. No. 3 was as to whether, during the period from December 1, 1931 to April 1, 1932, defendant failed or refused to accept delivery of the 18,700 trees. This was likewise answered in the affirmative. Nos. 4, 5, 6 and 7 were not' answered. Nos. 4, 5 and 6 were intended to submit the issue, as to liquidated damages. No. 7 was as to whether, after defendant failed and refused to accept the trees in question, that plaintiff was ready, able and willing to deliver same to defendant until such trees became worthless as nursery stock.

This verdict was received and accepted by the court. Both parties moved for a judgment thereon. The motion of plaintiff was granted, and the court, in assessing the damages, estimated the costs of delivery and immediate preparation of delivery by balling at 8 cents per tree, and gave plaintiff judgment for the trees at 90 cents per tree, deducting from such total the cost of balling and delivery and the $1,500 held by plaintiff. The judgment: aggregates the sum of $19,160.09. On the amount found due the court added interest at six per cent per annum.

The trial court seems to have adopted the theory that the issues in relation to liquidated damages were immaterial. We believe this action was correct. The question of liquidated damages is thoroughly discussed, in the opinion of Judge Slatton, appearing in 109 S.W.2d 1131, supra. We have briefly heretofore adverted to that decision. In our opinion the discussion of the issue of liquidated damages .is adequate, and we adopt same. Under the undisputed evidence the issue as to liquidated damages passed from the case.

The question as to whether or not the proper measure of damages was applied in this case is one of some difficulty. Further, if the correct legal measure of damages was applied, it was not necessary, in order to apply same, to submit some issue relative thereto to the jury.

" In determining the proper measure of damages herein a brief consideration of the nature of the contract in question may be helpful. This was not a sale, it was a contract for a future sale. An essential óf a contract of sale is the vesting of the title in the buyer.

In the contemplation of both , parties the trees in question were to be grown and processed and then dug and delivered to the buyer. There was a designation of the place where the seedlings were growing, and it was contemplated that these seedlings were to be budded. However, in our opinion, until the budded seedlings were dug and tendered to the buyer, there could be no such segregation as would definitely appropriate the trees in question to the contract. Under the evidence the trees were growing with a large number of the same variety. Contract and Sale, Simkins, pp. 804, 822; Mechem on Sales, Vol. 1, Sec. 763; Gammage v. Alexander, 14 Tex. 414; Tufts v. Lawrence, 77 Tex. 526, 14 S.W. 165; Ellis v. Bonner, 80 Tex. 198, 15 S.W. 1045.

In the ordinary contract of sale, where the buyer is in default, the seller’s measure of damages is the purchase price. The title having vested in the buyer, it is just and right that his obligation should be fulfilled by payment of the purchase price. It amounts, in effect, to the enforcement of a specific performance of his obligation. This is true, even though the delivery is constructive only. Waples & Co. v. Overaker & Co., 77 Tex. 7, 13 S.W. 527, 19 Am.St.Rep. 727; Mechem on Sales, Vol. 2, 1674.

In cases where the title has not passed on the date of the breach, the action is for damages. The contract price as such is not the measure of damages. It may, however, have great bearing on the amount of damages. An action for damages and not the purchase price in- this class of cases is the remedy, although the seller refuses to accede to an anticipatory-breach by the buyer, in which event, the damages are assessed as of the date performance by the buyer is due.

The case of Waples et al. v. Overaker et al., 77 Tex. 7, 13 S.W. 527, 19 Am.St.Rep, 727, is an instance of the application of the measure of damages in a sale where title had passed. Plaintiff therein exercised the right of resale. The contract price seems to have been credited with the resale price, less reasonable expenses. In Tufts v. Lawrence, 77 Tex. 526, 14 S.W. 165, title to the goods had not passed. It is held that the measure of damages was the difference between the contract price and the value of the goods in the condition same were on the date that the vendee notified vendor of intention not to accept the goods ordered when tendered. The situation in that case was that plaintiff had already incurred practically the full cost of his compliance with the contract. Also the case announces the principle that where goods are ordered to be manufactured or grown prior to performance the buyer may countermand the order. In the case of Texas Seed & Floral Co. v. Chicago Set & Seed Co., Tex.Civ.App., 187 S.W. 747, the onion sets were practically produced when the order was repudiated. Same were sold by the seller on order of the vendee, brought their then full market value, and such value was applied on the damages, less the expenses of sale and storage. It is true that the purchase price, for all practical purposes, was taken as the measure of damages. In all such cases where the obligation of the seller has been fulfilled in its entirety, and no more expense or labor is necessary, the contract price would represent his damages, less the reasonable value of the goods on hand. However, the action is for damages and not for the purchase price. In Texas Seed & Floral Co. v. Chicago Set & Seed Co., supra, it was not stated whether,the title to the onion sets had passed before the breach, or otherwise. It does not appear whether the sets unharvested at the time of the repudiation were growing with other sets. In support of the holding, Waples v. Overaker, supra, is cited. The full value of the onions, whether same were the property of defendant or of plaintiff, was applied to the damages. The result was, plaintiff had the benefit of the value of the onions as did the defendant. We do not regard this case as modifying the rule for damages laid down in Tufts v. Lawrence, supra. In fact, the case arguendo recognizes the principle that after notice the seller is not authorized to incur further expense on behalf of the buyer. The following additional cases might be cited on the point that prior to the date of performance where goods are ordered to be manufactured or grown the title does not pass at least until the date of performance: Gammage v. Alexander, 14 Tex. 414; Adler v. Kiber, 5 Tex.Civ.App. 415, 27 S.W. 23; Tufts v. Stuart, Tex.Civ.App., 23 S.W. 834; Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex.Civ.App., 148 S.W. 1109. These cases also support the proposition that the seller does not have the right after the countermand of the order to do anything which would, enhance the damages which then accrued to him. See also Sonka v. Chatham, 2 Tex.Civ.App. 312, 21 S.W. 948. The seller has the right, however, to treat the contract as in force and to have damages determined with reference to conditions existing at the time fixed for performance. Mechem on Sales, Vol. 2, §§ 1707, 1088-1090.

The fundamental rule in assessing damages is compensation. In case of a breach of contract the value of performance to the plaintiff is the fundamental issue.

The case of Tufts v. Lawrence, supra, does not lay down a formulistic and rigid rule to be applied to all cases where goods are to be produced and there is a repudiation before title has passed, or the performance is due. It was a just rule applied to the facts involved. It is conceivable' that a rigid application of the rule might give the seller an advantage above complete performance by the buyer, in that the seller might have expended very little on producing the goods, and to perform his original obligation it would require a good deal more expense. In such a case, this measure of damages would not apply. In the case the court had before it the seller had practically complied with his contract. In a case where the contract was entirely unexecuted, the contract price, less the cost of compliance by the seller, would represent the just measure of damages.

Here it seems the defendant gave notice in August, 1931 that it did not intend to receive the trees contracted for. The court did apply in a measure the rule as laid down in Tufts v. Lawrence. Credit was given on the contract price of 8 cents per tree, representing what was held to be the reasonable cost of digging, balling and delivering the trees. It does not appear from the evidence if expense and care had to be expended on the trees during the period from August 1, 1931 to December 1, 1931. The value of the trees on August 1, 1931 does not appear. There is evidence as to the value of the trees during the growing season of 1931-1932. There is likewise evidence that the plaintiff could not sell the trees at any price. Whether these trees had or had not a value on the date of the repudiation or on the date of performance is a disputed fact under the testimony. The theory of the trial court must have been that on December 1st, upon tender of performance, the title to the trees vested in the defendant. We believe this is erroneous, from the fact there was never a segregation of the specific trees contemplated in the contract. Under the evidence these trees were growing with a number of others of the same general class and character. To our mind, an analogy to an unsegregated mass of goods is presented. In such a case title does not pass until there is a definite segregation and appropriation of the goods to the contract. We are not unmindful of the fact that until ready for planting the best place to preserve the value of these trees was in the nursery. The digging and balling of same at least would have rendered their availability as nursery stock shorter than it otherwise would have been.

The issue of the value of the trees, in our opinion, should have been submitted to the jury, and perhaps likewise the reasonable cost of digging, balling and preparing for delivery. If additional expense was entailed in keeping the trees from August to December that should be ascertained. The value of the trees as of the date of the repudiation, the reasonable cost of digging, balling and delivery, the expense, if any, of the care of the nursery stock from August to December should be aggregated, subtracted from the contract price, and the balance would represent the measure of plaintiff’s rights.

It is ordered that the case be reversed and remanded.

On Motion for Rehearings.

Appellant and appellee have each filed a motion for rehearing herein. Appellant urges that we reverse our former holding and render judgment in its favor. Appellee urges that its motion be granted and the judgment of the trial court affirmed. We shall first consider the motion of appellant.

Since the writing of the original opinion the writer has examined appellant’s brief and motion for rehearing on the former appeal of this case, wherein it was defendant in error. In its brief there the first counter proposition urged is in substance that the judgment in its favor should be affirmed because of the indefiniteness of the purported contract as to the 18,700 trees. By cross-assignment the same matter was urged; its motion for a rehearing was to the same tenor and effect; in a written argument filed in support of its motion this is the only point argued, although rights are reserved to rely on all matters urged in the motion. The application for writ of error is not available. A careful reading of the three opinions of the San Antonio Court of Civil Appeals on the former appeal, together with the opinion of the Supreme Court, compels the conclusion that the trial was on the merits. See 59 S.W.2d 954; 66 S.W.2d 509; 128 Tex. 102, 96 S.W.2d 68; 109 S.W.2d 1131. It is true that the judgment of the trial court was based on the holding that there was provision for liquidated damages in the contract, and there was an accord and satisfaction of the cause of action asserted by plaintiff in error there. However, the trial court, referring to the same contract we have here, found: The said contract was breached as alleged by plaintiff; further, no facts were introduced at the,trial of said cause from which the correct measure of damages could be discovered. Our understanding of appellant’s position is that there was no contract breached as to the 18,700 trees; that as to same the only agreement was that there should be made in the future a contract with reference thereto, the terms of this future contract not being specified. This same position was strenuously and clearly maintained on the former appeal. There is no question but that the writings here involved were introduced in evidence on the former appeal.

In Judge Slatton’s opinion, 109 S.W.2d 1131, 1133, supra, the scope of the decision is indicated as follows: “We are therefore called upon to determine whether or not the trial court erred in sustaining the special exception of defendant in error, which was directed to the second amended original' petition of plaintiff in error, on the ground that such pleading and the contract exhibited to the pleading showed on their face to be liquidated damages, as distinguished from a penalty, and whether or not the trial court erred in denying any recovery to the plaintiff‘in error on the pleadings and proof, as shown by the record (Italics ours.)

There inheres in and is implied in the discussion of the question of liquidated damages or penalty the finding that there is a valid contract. A consideration of the question involves all the terms of the purported contract. It is a consideration as to the limit and extent of the remedy on the contract involved. If the contract as a whole will not support a recovery, it would indeed be futile to discuss and consider the consequences of a breach thereof. On an indefinite contract neither liquidated damages nor the damages as contemplated by law resulting from a breach can be recovered — in short, there is no.contract to be breached. Plaintiff in error there, in order to be entitled to a recovery, had the burden of establishing a prima facie case in addition to establishing that the $1,500 in question was a penalty. Unless this burden was met it seems to us the judgment of the trial court would have been affirmed.

We will again consider briefly the question as to whether the stipulation as to the $1,500 was a provision for liquidated damages or a penalty. The original contract of August 15, 1929 was modified by the agreement for the retention of $3,000 by appellee, and sometime after the modification of November 22, 1930 the deposit with appellee was reduced to $1,500. Conceding the provision in the original contract of August 15, 1929 applied to the deposits insofar as reasonably applicable thereto, we think this was a provision for a penalty. Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex.Civ.App., 148 S.W. 1109; Sanders Nursery Co. v. J. C. Engelman, Tex.Civ.App., 109 S.W.2d 1131.

The admissible testimony on the trial of this case here to our- minds fortifies this construction.

We hold as a matter of law that the $1,-500 in question was a penalty.

Appellant’s motion, for rehearing is overruled.

We have given careful consideration to the motion for rehearing of appellee. It is still our view that the trial court erred in holding as. a matter of law that the correct measure of damages was the contract price, less the cost of balling and delivering the trees. There was evidence that the trees had a market value on the dates their delivery was due. We do not think the evidence is conclusive on the question of due diligence used in attempting to realize this value. A careful consideration has been given to the authorities cited by each party on this issue, and we still adhere to the .views expressed in the original opinion.

The motion of appellee is overruled.