author: WILLSON, G. J.

text:
    NATIONAL EQUITABLE SOC. OF BELTON v. CARPENTER.
    (No. 1559.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1916.
    On Motion for Rehearing, Feb. 24, 1916.)
    1. Building and Loan Associations ©=> 26 — Contracts—Fraud—Rescission.
    Plaintiff, who in his application for defendant’s loan contract stated that he had examined its plans, had read a printed copy of .the kind of contract applied for, and understood all its provisions, and that in making the application he did not rely upon any statements or guaranty on the part of the defendant’s agent, had no right to rescind the contract delivered to him, because he did in fact rely upon the agent’s representations to him made without the authority or the knowledge of the association, and, notwithstanding he had not read the contract, was chargeable with knowledge of its contents when he accepted it, and hence was not entitled to rescind on the ground of the agent’s misrepresentation as to the terms of the loan.
    [Ed. Note. — For other cases, see. Building and Loan Associations, JDec. Big. <@=¿>26.]
    2. Building and Loan Associations <@= 26 — Application foe Contract — Knowledge oe Contents.
    In such case, where it did not appear that plaintiff was prevented by any fraud of the agent from reading the application before he signed it, he was in no position to claim that he was ignorant of its contents, although in fact he did not read it.
    [Ed. Note. — For other cases, see Building and Loan Associations. Dec. Dig. <@=>26.]
    On Motion for Rehearing.
    3. Building and Loan Associations <@=> 41(7) — Breach of Contract — Proof otf Damages.
    If such suit was treated as one for damages for breach of the contract actually made as explained by the society’s agent, plaintiff was not entitled to judgment, where he merely showed that the society had agreed to lend him money within a time specified, and failed to do so, as that did not show any damage.
    [Ed. Note. — For other cases, see Building and Loan Associations, Cent. Dig. § 84: Dee. Dig. @==>41(7).]
    4. Fraud- <@=>49 — Fraud of Agent — Action for Damages — Proof.
    If such suit is treated as one for damages for. the deceit of the society’s agent inducing plaintiff to enter into a contract he otherwise would not have made, plaintiff was not entitled to judgment, where he did not allege and prove any facts which would enable the court to measure his damages.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 44, 45; Dec. Dig. <@=>49.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Suit by J. W. Carpenter against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    The suit was by appellee against appellant. It was to recover baclr $110 paid by the former to the latter for and on one of its “loan contracts,” and was commenced in a justice court. As grounds for the recovery he sought, appellee alleged as follows:
    “That defendant is a corporation under the laws of the state of Texas, and on the 26th clay of February, A. D. 1913, was pretending to make loans, for the purpose of improving and building homes, to persons desirous of borrowing money for that purpose upon real estate security. That said defendant on or about said date and in Bowie county, Texas, by its duly authorized agents, fraudulently procured and induced plaintiff to subscribe for one of its contracts and then and there stating and representing to plaintiff that if he would pay to the defendant the sum of one hundred ten and no/100 dollars, that defendant would immediately, as soon as plaintiffs presented it with an abstract of title to certain real estate, make a loan of the sum of one thousand dollars to plaintiff at 6 per cent, interest per annum, and that plaintiff, relying upon said statement and representation so made to him by defendant, paid to said defendant the sum of one hundred ten and no/100 dollars and thereafter within ninety days made application to the said defendant and offered to the said defendant an abstract of the title to the real estate upon which the loan was to be made and which would be acceptable to the defendant, and upon which he applied; for the loan in the sum of one thousand dollars; that said statements so made in Bowie county, Texas, were fraudulent and untrue, and made for the purpose of procuring and inducing the plaintiff to pay to the defendant the said sum of one hundred ten and, no/100 dollars, and without any intention on the' part of the defendant to make the said loan, or any other loan; and that since said date and time defendant has refused to make any loan whatever, and refuses to repay plaintiff said sum of money, but has appropriated same to its own use to plaintiff’s damage in the sum of one hundred ten and no/100, with interest from the 26th day of February, 1913, for which he prays judgment and for costs of suit.”
    In the county court, to which an appeal was prosecuted, judgment was rendered in appellee’s favor for the sum he sued for. This appeal is from that judgment.
    It appears from the record that appellee applied to appellant for a “loan contract,” through and at the instance of one King, appellant’s agent, to whom he at the time paid $10 as the price thereof. The application was in writing, and was as follows:
    “Application for a Contract of National Equitable Society of Belton (Incorporated) Bel-ton, Texas.
    “I, J. W. Carpenter, being of legal age, hereby apply for one of your contracts for the amount of $1,000 in accordance with the plans of the society as set out in said contract, and have paid Mr. King & Mathews, a solicitor (whose authority, I understand, extends only to the sales of contracts issued by the society under their printed covenants and requirements), $10 as purchase price for same, and I agree to pay the society hereafter, without notice, a monthly installment of dues on said contract of $1,000 on or before the 15th day of each month following the date hereof, until the contract issued hereon is surrendered for a paid-up certificate of deposit, or cash surrender value, or on account of angular loan being granted, or until said contract is fully paid according to its printed covenants and requirements.
    “I have examined the plans of the society and have read a printed copy of your contract and am familiar with and understand and accept all the covenants and requirements of said contract, and I make this application expressly and solely upon the terms and conditions of this application, and the covenants and requirements of said contract issued by the society, and not upon the faith of any statements, promise, undertaking or guarantee on the part of said solicitor or any other person, and it is hereby expressly agreed that this application without being corporeally attached thereto shall be a part of the contract issued hereon and every condition hereof and statement herein is as binding as if corporeally attached to or incorporated in said contract.
    “In witness whereof, I hereunto subscribe my name this 21st day of February, 1913.
    “Signature, J. W. Carpenter.
    “Street Address, 1403 Olive Street.
    “City, Texarkana; State of Texas.”
    Appellant thereupon delivered to appellee, and he accepted as a compliance .with his application as shown by bis indorsement thereon, appellant’s obligation as follows:
    “Contract.
    “National Equitable Society of Belton, hereinafter styled ‘the society,’ for and in consideration of the sum of $10.00, being the purchase price hereof, in hand paid by J. W. Carpenter, hereinafter called ‘the holder hereof,’ of Texarkana, Texas, the receipt of which is hereby acknowledged, and the payment by the holder hereof of $10.00 monthly, in advance on the 15th day of each month consecutively, for the term hereof, does hereby with said holder hereof and his. heirs, executors, administrators and assigns, subject to the terms of the written application herefor, and the covenants and requirements hereto attached, both of which application and said attached covenants and requirements are expressly made a part hereof, and as fully incorporated herein as if set forth completely above the ensuing signatures, agree and bind itself:
    “(1) That from each payment, except the purchase price and the first two made hereon, the society will deposit to the credit of the loan reserve fund, with a state or National Bank, designated by the society as a depository, 85 per cent, thereof, with all fees and fines, to be held by said bank and paid out by it for the purpose only of making loans or settlements on contracts, as and when the society may direct; and that from said loan reserve funds, all prior claims thereon having been satisfied, the society, whenever the accumulation is sufficient, will lend the holder hereof, at the rate of interest hereinafter provided, and repayable in the manner and form, and as and when, as hereinafter stipulated, the sum of $1,000.00, only on lawful, good and sufficient real estate security, legally mortgageable by the said the holder hereof for said loan: Provided, that prior to the making of said loan said the holder hereof shall have made at least 10 of the hereinabove stipulated monthly payments, which may be done in advance if desired by said the holder hereof.
    “(2) When ten of the hereinabove stipulated monthly payments have been made hereon, either in monthly installments or on cash payments, in advance, the holder hereof at any time thereafter may file his application for a loan on acceptable real estate security, subject to the approval of the executive committee; but it is expressly understood that no loan will be approved for more than 85 per cent, of the value of the property offered, as ascertained by appraisement thereof, within the opinion of the executive committee. The priority of right to a loan shall be determined by priority of filing applications therefor, but the executive committee shall have the right to reject any application for a loan on account of insufficiency of security offered.
    “Witness the signature and seal of the society by and through its duly authorized officers, this 26th day of February, A. D. 1913, in duplicate.
    “National Equitable Society of Belton, “Per E. C. Clabaugh, President.
    “J. W. Hearon, Secretary.
    “This contract is accepted by me with full understanding of all the terms and conditions hereof and hereto attached, all of which have been read by me this 10th day of March, A. D. 1913.
    “J. W. Carpenter.”
    One of the “covenants and requirements” referred to in the contract as attached to and forming a part of it was as follows:
    “(13) The society shall be bound by and responsible for only such statements as are contained in this contract, and the application therefor, and no officer or agent, or solicitor of this society, general or special, or state agent, has any authority to promise a loan in any particular time, or bind the society by any promise, representations or any statements not contained in this contract, or in the application therefor.
    Having each month for six months after the obligation was delivered to him paid appellant the sum of $10, and then the sum of $40, making, with the $10 paid by him at the time he applied for the contract, a total of $110 paid by him to appellant, appellee, on a blank furnished to him for the purpose, applied for the loan of $1,000 appellant had agreed to make to him. With reference to this application appellee testified:
    “I was notified within a few days that the same had been received and filed, and as soon as acted upon I would be notified. I waited about 90 days after I had submitted my plans and made application for my loan, and not being notified that the loan had been made, I wrote the society, and was then notified that there was no certain time in which my loan would be made, and that the society would make no definite promise of the time when I might expect and get my loan. This was the first time that I knew or had any idea I would not get my loan as the agent told me, and as I expected. I then ask for the return of my money, but was refused. I was requested to continue paying $10 per month to the society until I had paid a total of $1,000 or until the society got ready to make me a loan.”
    He further testified, that the agent (King) represented to him that if he would apply for the contract and pay $110 as he did,,appellant would, “within from 30 to 60 days, and not over 90 days at -the outside,” from the time lie paid the $110, loan him $1,000 on the security of property he owned, and which the agent had inspected and declared to be amply sufficient security for a loan of that amount, and that he was induced by such representation so made to him to apply for the contract and pay appellant $110 as above stated.
    L. H. Henry, of Texarkana, for appellant. Wheeler & Wheeler, of Texarkana, for ap-pellee.
   WILLSON, G. J.

(after stating the facts as above).

The theory upon which the suit was brought and prosecuted was that appellee, having a right to do so, had rescinded the contract he entered into with appellant and was entitled to recover back the sum he had paid to it. Without deciding whether they were or not, it may be conceded, in disposing of the appeal, that the representations made by the agent (King) and relied upon by appellee, as he claimed, were of such a character as would have entitled him to a rescission had it appeared that King was authorized by appellant to make them on its behalf; for if the representations were of that character the judgment, nevertheless, cannot be sustained, because it appeared that King was not authorized to make them, and that appellee was chargeable .with knowledge of the fact that King exceeded his authority to act for appellant when he made them. So far as the record shows to the contrary, appellant neither authorized nor knew anything about the representations made by King. In obligating itself as it did in tbe contract it acted in utter ignorance, it seems, of tbe fact that sucb representations bad been made to appellee, and, moreover, in reliance, it seems upon bis understating fully tbe terms upon which it sold its “loan contract,” for in bis application to it appellee assured it that he bad examined its plans, bad read a printed copy of tbe kind of contract be applied for, was familiar with and understood all tbe covenants and requirements of sucb a contract, and in making tbe application did not rely upon “any statements, promise, undertaking or guarantee on tbe part of said solicitor (King) or any other person.” In tbe face of such representations as those just recited, made by appellee to appellant, it is obvious, we think, that be bad no right to rescind tbe contract appellant delivered to him, because be did in fact rely upon tbe representations made to him. To bold otherwise, it seems to us, would be to say, in effect, that appellee could induce appellant to enter into a contract with him on bis assurance that certain representations bad not been made to him, and then rescind it on tbe ground that they bad been made to him. Tbe theory upon which, it seems, appellee thought be was entitled to tbe relief he obtained, was that be made the application for tbe loan on a blank furnished to him by the agent, did not read it carefully before be signed it, and as a matter of fact when be signed it had not read nor seen a copy of one of appellant’s loan contracts. “I signed my name to the application,” be testified, “without paying much attention to what I signed.” It did not appear that be was prevented by fraud of any land practiced upon him by tbe agent from reading tbe application before be signed it. Therefore, it must be said, it did not appear that be .was in a position to claim that be was ignorant of tbe contents of tbe application. Loan Co. v. Thomas, 28 Tex. Civ. App. 379, 67 S. W. 457. If, however, it did not appear that appellee was in the attitude of having induced appellant to enter into the contract in reliance upon tbe truth of tbe representations contained in his application, we nevertheless would be of opinion tbe judgment in bis favor was unwarranted. It will be noted, as is shown in tbe statement of tbe case above, that appellee by bis writing indorsed thereupon accepted the contract tendered to him by appellant “with full understanding of all tbe terms and conditions hereof and hereto attached, all of which,” be said, “have been read by me.” One of tbe “terms and conditions” referred to as “hereto attached,” was tbe one numbered “13,” set out in tbe statement above. If appellee read that, as be said be did, in bis written acceptance of tbe contract, be must have known that King, in making tbe representations be did as to tbe time when appellant would make tbe loan, was acting outside bis authority as appellant’s agent. Testifying as a witness, however, appellee said be did not read tbe contract before be accepted it. Tbe excuse he gave for not reading it was that it “was bard for him to understand.” It does not appear in the record that be failed to read tbe contract, or have it read and explained to him, because of any act or conduct of appellant or its agent. Therefore we think it must be said that it appeared as a matter of law that notwithstanding be did not read it appellee was chargeable with knowledge of tbe contents of tbe contract at tbe time be accepted it, was bound by its terms, and hence was not entitled to tbe relief be sought. Gibson v. Brown, 24 S. W. 575; Insurance Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 871; Casualty Co. v. Thomas, 178 S. W. 606; Wooters v. Railway Co., 54 Tex. 294.

Tbe judgment will be reversed, and judgment will be rendered in favor of appellant.

On Motion for Rehearing.

It is insisted that we erred in treating ap-'pellee’s suit as one to rescind tbe contract between him and appellant. It was so treated because it was to recover back tbe money he had paid to appellant. He was entitled to that relief only upon tbe theory that be had a right to rescind tbe contract.

His suit, be says in tbe motion, was for “damages for breach of the contract actually made as explained by tbe agent.” If it was, then, plainly, be was not entitled to the judgment be obtained, because be did not prove be sustained any damage. Proof merely that appellant bad agreed to lend him money within a time specified and failed to do so, lacked much of showing that be was thereby damaged.

If tbe suit should be treated as one for damages for deceit of tbe agent, whereby appellee was induced to enter into a contract be otherwise would not have made, as appellee seems to argue it might have been, then be was not entitled to tbe recovery be bad, nor to any recovery, for tbe same reason, to wit, because he did not prove that be suffered any damage. If be was so induced to enter into tbe contract, and if for any reason it was of less value to him than be bad a right to expect it to be, be should have alleged and proven that fact and the facts which would have enabled tbe court to measure tbe damages be suffered.

Tbe motion is overruled.
      <§u=oFor other oas.es see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    NATIONAL EQUITABLE SOC. OF BELTON v. CAMP et al.
    (No. 1584.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 8, 1916.
    Rehearing Denied March 16, 1916.)
    1. Fraud <@=20 — Knowledge of Pacts.
    Plaintiff, who before signing an application for a loan contract with defendant loan society read and studied its terms, and knew that they stated that its agent had no authority to change the terms of the written contract or make any oral agreement not in the written contract, and that the agent’s statement that she could get a loan within 30 days, and not over 60 days, was not authorized, if conflicting with the contract, which expressly stated that loans would be made only when the society’s accumulation was sufficient, thus haying knowledge of the incorrectness or falsity of the agent’s statement before she acted upon it, had no ground for an action for damages against the society for the agent’s alleged fraud, as she could not be said to have been deceived.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. <@=20.]
    2. Building and Loan Associations <@= 26 — Rescission of Contract — Fraud.
    Such suit, if treated as a suit to rescind the contract and to recover the money paid under it, could not be maintained, as plaintiff could not be said to have been actually misled by the statement or opinion of the agent into accepting the ■contract as it was written.
    [Ed. Note. — For other eases, see Building and Loan Associations, Dee. Dig. @=26.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by Mrs. S. E. Camp and others against the National Equitable Society of Belton. Judgment for plaintiffs, and defendant appeals.
    Reversed, and judgment rendered for the defendant.
    The appellee brought the suit to recover the amount of money paid to appellant society in virtue of a certain contract executed by it, averring that she was induced to apply for and enter into the contract through fraudulent statements made to her by the agent of the society and relied on by her. The fraudulent statements which induced her to apply for the contract are, as alleged:
    “The agent stated to her if she would buy a contract of them [appellant] and pay them [appellant] $10.00 and then make ten monthly payments to the society, they would loan her a $1,-000.00; or if she would pay to the society the $100.00 in advance, that the society would loan her a $1,000.00 in July, which would be in about four months.”
    The prayer was:
    “Wherefore plaintiff prays that the defendant -society be cited to answer this complaint, and •that plaintiff have judgment against defendant •society requiring said society to refund back to plaintiff the $110 that she paid said society for the contract bought of said society, with interest and costs of suit, and for general and special relief as she may be entitled to in both law .and equity.”
    The application for and the contract executed and received by appellees are fully set ■out in the companion case of National Equitable Society of Belton v. J. W. Carpenter, 184 S. W. 585, lately decided by this court. The evidence on the part of the appellee shows that the agent of the society came to her and solicited her to make application to the society for a loan contract with the society for $1,000. Her testimony is as follows:
    “I wanted the money with which to build me a house, and I asked the agent when I could get the money and he said that I could get it when I paid into the society $100, paying $10 each month. I told the agent that if I could not get the loan right away I would not want the contract ; he said that he did not know about that. He then told me that if I would pay to the society $100 in cash I could get a loan within 30 days and not over 60 days at the outside. I told the agent that if I could get the loan within that time I would take the contract, and this statement by the agent was the inducement that caused me to take the contract; otherwise I would not have taken it. * * * I saw the agent several times before I made application for a loan contract, and several times before I made any trade with him. He left a loan contract with me for me to read and I read it and studied its terms. I read both the application and the loan contract before I signed them, and knew that they contained statements which said that the agent had no authority to change the terms of the written contract or make any oral agreement that was not in the written contract. Before signing the application for a loan and the loan contract I discussed the terms of the loan contract with my son-in-law, who read^the application and the loan contract before 1 signed them. * * * I paid the agent $10 and he gave me a receipt for it. I sent the society $10.0. When the time came for me to get a loan, according to the agent’s promise, I wrote the society to know why I had not received a loan on my application previously made therefor, and it wrote me that they could not make me ,a loan then, but that it would get to it as soon as it could. * * * I have not received a loan from the society nor any of my money back that I paid in.”
    The written application to the society for the loan, signed, by appellee, recites:
    “I have examined the plans of the society and have read a printed copy of your contract and am familiar with and understand and accept all the covenants and requirements of said contract, and I make this application expressly and solely upon the terms and conditions Of this application, and the covenants and requirements of said contract issued by the society, and not upon the faith of any statement, promise, undertaking or guarantee on the part of said solicitor or of any other-person.”
    The written loan contract subsequently executed by the society and accepted by appel-lee, has the following stipulation respecting the time when a loan will be made:
    “The society, whenever the accumulation is sufficient, will lend the holder hereof, at the rate of interest hereinafter provided, and repayable in the manner and form, and as and when, as is hereinafter stipulated, the sum of one thousand dollars only on lawful, good and sufficient real estate security, legally and mortgageable by the holder hereof for said loan: Provided, that prior to the making of said loan said the holder hereof shall have made at least ten of the stipulated monthly payments, which may be done in advance if desired by the said the holder hereof.”
    And the contract of loan has -the following clause:

      “The society shall be bound by and responsible for only such statements as are contained in this contract and the application therefor,, and no officer or agent or solicitor of this society, general or special, or state agent, has any authority to promise a loan in any particular time or bind the society by any promises, representations or any statements not contained in this' contract or in the application therefor.”
    In a trial before the court judgment was entered for. appellee for the money paid the society.
    L. H. Henry, of Texarkana, for appellant. J. W. Hillman, of Texarkana, for appellees.
   LEVY, J.

(after stating the facte as above). Appellee in the brief remarks that:

“The suit is brought for the purpose only to recover back the money paid by the plaintiff to the society, based upon the fraudulent statements made by the agent of the society to induce plaintiff to enter into the contract and pay to the society the $100 in cash.”

And it is believed that under the facts of the case it must be held that there is no ground furnished to entitle appellee to the relief sought. Appellee, according to her evidence, before signing the application and before accepting the loan contract, read over “and studied its terms,” and “knew that they contained statements which said that the agent had no authority to change the terms of the written contract or make any oral agreement that was not in the written contract.” Further, she discussed, she said, the terms of the contract with her son-in-law before signing the contract. Having read the contract and “studied its terms,” before applying for and before accepting the contract, the appellee would be held to know that it expressly stated that the agent or solicitor had not “any authority to promise a loan in any particular time.” And with this information afforded appellee, she would fully know that the statement of the solicitor that she “could get a loan within 30 days and not over 60 days at the outside” was not authorized if it conflicted with or varied the stipulation in the loan contract, which, according to her testimony, was left “with me for me to read” before acceptance and signing. Referring to the contract itself that was intended to be offered she would know that its terms explicitly stated that the loan would be made only out of the loan reserve fund of the society “whenever the accumulation is sufficient.” So, from the evidence, appellee is in no position to say that she entered into and accepted the loan contract upon the faith and trust which she reposed in the statement of the agent soliciting the application for the contract. Therefore, as the appellee had, as conclusively appears, knowledge of the incorrectness or falsity of the 'statement of the agent, which was promissory in its nature, before she acted upon it, she has no ground for an action for damages against appellant for the agent’s alleged fraud, for she cannot be said to be deceived. 1 Clark & Skyles on Agency, § 509.

And treating the action as one to rescind the contract and recover the money paid under it, the appellee may not maintain such suit under the facts, for she could not be said to have been actually misled by the statement or opinion of the agent into accepting the contract as it was written. Smith on Frauds, §§ 62 and 126 at page 144; Jackson v. Stockbridge, 29 Tex. 394, 94 Am. Dec. 290. What has been said in the case of Society v. Carpenter, supra, is decisive of this case.

The judgment is reversed, and judgment will be here rendered in favor of appellant, with all costs.
      '<i=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    NATIONAL EQUITABLE SOC. OF BELTON v. DUNNINGTON.
    (No. 1583.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1916.
    Rehearing Denied Feb. 24, 1916.)
    .. kraud @=58(l) — Action to Recove® Monet Paid — Evidence.
    In a suit to recover the sum paid to the defendant loan society under an agreement for a future loan as damages from the fraudulent representations of its agent, evidence held insufficient to sustain a judgment for the plaintiff.
    [Ed- Note. — For other cases, see Fraud, Cent. Dig. § 55; Dec. Dig. @=358(1).]
    2. Fraud @=>50 — Burden oe Prooe.
    In such suit, plaintiff had the burden of proving that he was entitled to the relief sought.
    [Ed. Note. — For other cases, see Fraud, Cent. Eig. §§ 46, 47; Dee. Dig. @=>50.]
    3. Building and Loan Associations @=26 —Loan Contract — Rescission—Time.
    Plaintiff, if entitled to reject the contract of the defendant loan society when tendered, because it materially differed from what its agent said it would be, was required to act promptly upon a discovery of the fraud or variance.
    [Ed. Note. — For other cases, see Building and Loan Associations, Dec. Dig. @=>26.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by C. I-I. Dunnington against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for the defendant.
    L. H. Plenry, of Texarkana, for appellant. Wheeler & Wheeler, of Texarkana, for ap-pellee.
   HODGES, J.

This suit was instituted in the justice court by the appellee to recover the sum of $110 theretofore paid to the appellant under some kind of an agreement for a future loan, which will more fully appear in what follows. The nature of the plaintiff’s demand is thus stated in the citation issued in the justice court:

“Defendant is a corporation under the laws of the state of Texas, with its principal office in the town of Belton, Bell county, Texas; and i\ as on the 15th day of March, 1915, pretending to make loans for the purpose of improving and building homes to persons desirous of borrowing money for that purpose on real estate security; that defendant on or about the said date, in Bowie county, Texas, by its duly authorized agent, fraudulently procured and induced plaintiff to subscribe for one of its contracts by then and there stating and representing to plaintiff that if he would pay to defendant the sum of $110.00 that defendant would immediately make a loan to the plaintiff in the sum of one thousand dollars upon real estate security which plaintiff offered as security for said loan; and that plaintiff, relying upon said statement and representations so made to him by the defendant, paid to said defendant the sum of $110.00. That said statements so made were fraudulent and untrue and made for the purpose of procuring and inducing plaintiff to pay to said defendant the sum of $110.00, and without any intention on the part of the defendant of making said loan or any loan, and that since said date and time defendant has refused to make any loan whatever, and refuses to pay to plaintiff said sum of money, but has appropriated same to its own use and benefit, to plaintiff’s damage in the sum of $110.00.”

This is the only statement of the facts pleaded and relied on by the appellee for the relief sought.

The defendant answered, in substance, as follows: (1) That the defendant had a written loan contract with the plaintiff setting forth the terms upon which defendant was to make plaintiff a loan of $1,000; that plaintiff failed and refused to comply with the terms of the written contract, which he had signed and accepted. (2) That defendant instructed its agent who sold plaintiff the contract to make no contract other than the one signed and accepted by plaintiff; that by the terms of that written contract plaintiff was advised that defendant’s agent had no authority to make any other contract, oral or written, and the defendant is not bound by the oral contract which the plaintiff alleged was made with defendant’s agent. (3) That plaintiff has defaulted in his monthly payments, and under the terms of his written contract all the payments theretofore made have become forfeited to the defendant.

This appeal is from a judgment in favor of the appellee for the full amount sued for.

The first assignment of error in effect assails the judgment of the court as being without support in the evidence. The appellee testified in his own behalf, in substance, .as follows: That on or about the 15th of March, 1913, he met the agent of the appellant, who explained to him appellant’s method of lending money to those who desired to purchase or improve homes. The agent stated that the borrower would have to pay $10 cash and $10 per month for a contract for the loan of $1,000, and that the borrower could get a loan immediately after the payment of $110. This amount could be paid monthly or all at one time. The loan would become available within 30 or 60 days from the time of payment, but if $100 was paid at one time the loan could be obtained at once. On that explanation the appellee made an application to the appellant company through its agent for a loan contract of $1,000, and sent a draft for the sum of $100 to the appellant at Belton, Texas. He received in return a passbook showing the payment of that amount. He was also instructed by the appellant to send in an abstract of title to the property he wanted to place as security for the prospective loan. The abstract was sent in, and the appellee was informed by letters from the appellant that it would pass on his application as soon as practicable. This transaction occurred about the 22d of March, 1913. In April the appellee received the following letter:

“We have your favor of the 7th with regard to your application for a loan, and beg to advise you that as soon as we can have an inspection of the property your application will be passed on, when you will be notified.”

No objection was made to the character of the security offered. Not receiving loan, the appellee again, on May 8th, wrote the appellant, demanding the loan. In reply the appellant advised him that by its terms and conditions the contract which he held had no cash value until after payments had been made for 18 months, and he could borrow on the contract only after having paid for 6 months. He was also informed that his application was on file; that the property was being examined, and as early as possible the loan would be passed on and the appellee would be notified accordingly. The appellee says that this was the first notice that he had that he would not get a loan as the agent had told him. He immediately wrote to the society, demanding a refund of his money. This was refused, and he declined to make any further payments. On cross-examination he admitted that he signed a written application, which was later introduced in evidence by the appellant. He does not remember that he read the application before signing it, but says that the agent might have read it to him. He had the opportunity to read it. He did not see a loan contract until after he had paid the agent $10 and had sent $10 to the company. He did not sign the loan contract; the agent did not ask him to sign it, and nothing was said about signing it. The agent had told him that the contract would provide that he should be entitled to a loan as soon as he paid in $100 to the appellant society. He relied upon these statements as to what the contract would contain. One other witness was offered by the appellee, who testified that he heard the agent explain to the ap-pellee what the contract would contain, and that he stated that it would provide that the society should make the loan within from 30 to 60 days from the time the $100 was paid in. The defendant then offered in evidence the following application:

“Application for a Loan Contract of National Equitable Society of Belton (Incorporated), Belton, Texas.
“I, C. H. Dunnington, being of legal age, hereby apply for one of your contracts for the amount of $1;000.00, in accordance with the plans of the society as set out in said contract, and have paid King & Mattehews, a solicitor (whose authority, I understand, extends only to the sale of contracts issued by the society under their printed covenants and requirements), $10.-00 as purchase price for same, and I agree to pay the society hereafter without notice a monthly installment of dues on said contract of $10.00 on or before the 15th of each month following the date hereof, until the contract issued hereon is surrendered for a paid-up certificate of deposit, or cash surrender value, or on account of a regular loan being granted, or until said contract is fully paid according to its printed covenants and requirements.
“I have examined the plans of the society and have read a printed copy of your contract and am familiar with and understand and accept all the covenants and requirements of said contract, and I make this application expressly and solely upon the terms and conditions of this application, and the covenants and requirements of said contract issued by the society, and not upon the faith of any statements, promise, undertaking or guarantee on the part of said solicitor or any person, and it is hereby expressly agreed that this application without corporeally attached thereto shall be a part of the contract issued hci'eon and every condition hereof and ■statement herein is as binding as if corporeally attached to or incorporated in said contract.
“In witness whereof, I hereunto subscribe my name this 13th day of March, 1913.
“Glass B. [Signature] G. H. Dunnington.”

The nature of the appellee’s cause of action, as disclosed by the statement in the citation, appears to be one for damages resulting from the false and fraudulent representations of the appellant’s agent. These false and fraudulent representations, according to the appellee’s testimony, consisted of statements by the agent that if the appellee would pay the sum of $110 ho would receive a contract from the appellant society which would entitle him to a loan of $1,000 immediately or within CO or 90 days upon approved real estate security. It is further shown that the sum of $110 was paid and the security demanded was furnished, but that the loan was refused upon the ground that still other payments must be made by the appel-lee before he was entitled to the loan under the terms of his contract. The proof shows that the first step in procuring a loan under this arrangement was the presentation by the prospective borrower of the written application quoted above. Upon its face this application was not for the loan direct, but “for one of your (appellant’s) contracts for the amount of $1,000, in accordance with the plans of the society as set out in said contract.” A further perusal of the application shows that it was contemplated that upon the payment of certain sums of money nam-ted a written contract governing the rights and liabilities of the contracting parties was to he executed and delivered. This instrument also ■ sRows that the authority -of the soliciting agent .extended..only ,to the taking of the application for the contract, and not an application for the loan. He may have misrepresented what the contract would provide with reference to the time when and the conditions under which a loan might be obtained. But the application recites that the appellee had examined a printed copy of the contract and was familiar with all of its covenants and requirements. This application furnished the data upon which the appellant was to act in executing and issuing its contract to the appellee.

The appellant had a right to assume that the applicant had done all that his application recited that he had done. If he had failed to examine a printed copy of the contract for which he applied, was ignorant of its terms and conditions, and was relying solely upon what the agent told him the contract would contain, then he misled the appellant by himself making false statements concerning material matters of fact. On the other hand, if he had in truth examined the contract, as stated in his application, and accepted its terms, his right to recover damages depends upon a breach of that contract, and not upon a failure of the appellant to do what the agent said the contract would provide for. If the agent misconstrued the contract as to when loan would be available, that was an error of opinion, for which the principal cannot be held responsible. Mechem on Agency, § 743. The construction of the contract was a matter equally open to the appellee; and if he relied upon the opinion of the agent, he did so at his peril.

The contract is not in the statement of facts, and cannot be looked to for the purpose of ascertaining its terms and conditions. But there is no contention that the appellant has breached that contract, and there is no remedy for the breach of a contract it did not make. If the appellee is entitled to recover any damages, it is because the appellant did not execute and deliver to him a contract in substantial accord with the representations of the agent But this suit does not appear to be based upon a variance of that character; in fact, there is no averment or evidence of what that written contract contained; neither is there any evidence of its rejection by the appellee after it was presented to him. While he testified that he did not sign the contract, that may have been and doubtless was sufficient to bind him.

Assuming that under the facts before us the appellee might have rejected the contract when tendered because it materially •differed from what the agent said it would be, it devolved upon him to act promptly upon a discovery of the fraud or variance. Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 597. The evidence shows that 2 months after the contract had been executed the.'appellee was ■ demanding a. loan which could be claimed by him only under the terms of the written contract. It is not charged that this written contract was for any reason void or unfair; hence we must conclude that it was one by which the parties might be bound to the fulfillment of their respective engagements. To relieve the appellee in this instance because of the false statements of the agent, would be to shield him from the legal consequences of his own misrepresentations.

The facts of this case are in all material respects similar to those of National Equitable Society of Belton v. Carpenter, 184 S. W. 589, recently decided by this court. We think the principles of law there announced furnish the correct rule for the determination of this controversy.

The appellee is the mover in this litigation, and it devolved upon him to adduce sufficient evidence to show that he was entitled to the relief sought In this he has failed, and there is nothing to indicate that his case might be strengthened upon another trial.

The judgment of the county court will therefore be reversed, and judgment will be here rendered in favor of the appellant, together with all costs both of this court and of the court below.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    CLEVELAND et al. v. GAINER et al.
    (No. 1010.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1916.)
    1.Schools and School Districts @=>33 — Size os' District — Statute.
    Under Acts 33d Leg. c. 129 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2815), touching the formation of common school districts and providing that in any county containing a population of less than 10,000 no common school district shall be organized or surveyed so that its geographic center will be more than 4 miles from its farthest boundary, the consolidation, in a county of less than 10,000 population, of two school districts, to result in the creation of a single district 30 miles in length and 16 miles in width, was illegal.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 55; Dec. Dig. @=>
    2.Schools and School Districts @=>111— Bonds — Enjoining Illegal Issue.
    Taxpayers and residents of a school district which the county commissioners consolidated with another, forming a single district so large as to be violative of Acts 33d Leg. c. 129 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2815) touching the formation of such districts, were entitled to a temporary injunction restraining the commissioners from issuing bonds for the support of a school in the illegal district, and from levying a special tax to pay interest, etc., and restraining the tax collector from collecting or attempting to collect such taxes.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. @=>111.]
    3. Schools and School Districts @=>33 — Illegal Consolidation — Curative Provision oe Statute — Application.
    The curative provision of Acts 33d Leg. e. 129 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2815), providing that all school districts “heretofore laid out and attempted to be established” and “heretofore recognized” by the county authorities as school districts, are validated in all respects as though they had been duly and legally established in the first instance, which became effective in July, 1913, being retrospective, does not apply to an illegal consolidation of two school districts effected February 11, 1915.
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig. § 55; Dec. Dig. @=>33.]
    4. Schools and School Districts @=>33 — Curative Provision op Statute — Application.
    A curative act validating school districts previously established and recognized will not be construed to validate the action of the county commissioners, in consolidating two districts illegally, which was a fraud upon the rights of residents and taxpayers in one of the former districts.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 55; Dec. Dig. @=>33.]
    Appeal from District Court, Yoakum County; W. R. Spencer, Judge.
    Suit for injunction by George Cleveland and another against J. T. Gainer and others. From an order dissolving a temporary injunction in vacation, petitioners appeal.
    Reversed and remanded.
    W. H. Bledsoe, of Lubbock, for appellants. G. E. Lockhart, of Tahoka, and Kimbrough, Underwood & Jackson, of Amarillo, for ap-pellees.
   HALL, J.

This is an appeal from an order of the district judge, dissolving a temporary injunction in vacation. Appellants, George Cleveland and Le Roy McCravey, as plaintiffs, presented their petition for injunction to the district judge, in which it is alleged, in substance: That they are residents of Yoakum county. That the defendant J. T. Gainer is the duly elected, qualified, and acting county judge of said county. That D. B. Tingle, S. J. Dixon, P. Z. Conrad, and Pat McHugh are the duly elected, qualified, and acting county commissioners, and with said Gainer constitute the commissioners’ court of said county. That J. C. Keller is the duly elected, qualified, and acting tax collector of said county. That Yoakum county is a duly organized county, and now has, and at various dates shown had, a population of less than 10,000. That after the organization of said county, in 1908, the commissioners’ court thereof, in the proper discharge of their duties, divided said county into common school districts. That common school district No. 1 was created in the northwest corner of said county so as to include about 275 sections of land. That common school district No. 3 was created in the southwest corner of said county so as to contain about 156 sections of land. That said common school district No. 3 continued to exist with said boundaries from its creation until February 11, 1915, when said commissioners’ court entered an order consolidating it with common school district No. 1, to be thereafter known as common school district No. 1; said consolidated district including territory 30 miles in length, extending from the north to the south line of the county and at its widest point being 16 miles east and west. That it contains a large portion of the best lands in said county. That the town of Plains, a village of less than 500 people, is situated on section No. 427, in said original common school district No. 1, near the center of said county north and south and about 14 miles east of the west line of said county. That, at the time of the attempted consolidation of said districts, district No. 1 had a scholastic population of about 54, and district No. 3 had a scholastic population of aboht 6, and said consolidated district now has a scholastic population of about 75. That the school building for common school district No. 1 was situated in the town of Plains, and is now used for said consolidated district. That plaintiff George Cleveland is a bona fide resident, taxpayer, and voter in said county, and together with his wife and children lives on section No. 643 in district No. 3, about 14 miles from the town of Plains, by section lines. That plaintiff Ue Roy McCravey is a bona fide resident, taxpayer, and voter in said county, and with his wife and children lives on section No. 582, in said district No. 3, about 12 miles from the town of Plains, by section lines. That each of said plaintiffs owns the land upon which he resides and has owned the same and resided thereon for many years prior to the attempted consolidation of said two school districts. That at the time of the attempted consolidation of said districts said county had a population of less than 2,000. That the county has a great deal of fine land and should', within a few years, contain many settlers. That said district No. 3 is equal in quality and desirability to any other portion of said county and should well support a large population, as the county settles up, and now, and in the future, will demand and be entitled to public schools, independent of those existing in the town of Plains. That such action of the commissioners’ court, in consolidating said districts, was at the request of the citizens of the town of Plains, and those residing in the immediate vicinity, and over the protest of these plaintiffs and a large majority of the residents of said district No. 3. That such action was for the sole purpose of building up a school at the town of Plains, regardless of the fact that it would deprive plaintiffs and the other residents of their district of a school for their children, and compel them to either move to a school community or to another county that they might have the advantages of a school for their children, such as is guaranteed them by the law. That such act of the commissioners’ court was without authority of law ■ and in contravention of the laws of this state. That said consolidation of such districts for the benefit of the school at Plains was in fraud of the rights of plaintiffs and the other residents of district No. 3. That after such consolidation the commissioners’ court of said county received and entertained a petition from the citizens of the town of Plains and ordered an election to determine whether or not bonds in the sum of $6,000 should be issued for building a schoolhouse for said district in the town of Plains. Upon said order said election was held, and 36 votes being cast for such bonds, and 20 votes against, on May XI, 1915, the election was declared in favor of the issuance of the bonds and an order entered accordingly. That said bonds are not yet issued, but the commissioners are threatening to issue and sell the same, which, if done, will fix said district so that the limits thereof cannot be reduced during the 20-years’ period provided for the maturity of said bonds. That at said time the court ordered and levied a tax of nine cents on the $100 valuation of all property in said district for the purpose of paying the interest on and creating a sinking fund for the payment of said bonds. That in obedience to said order the tax assessor of said county assessed said tax against all property in said consolidated district, including that owned by plaintiffs, and that same now appears on the tax rolls of said county as due by these plaintiffs and other taxpayers of said district, and is, and will continue to appear as, a lien against the property owned by plaintiffs for the amount appearing to be due by them. That thereafter the citizens of the town of Plains petitioned the said commissioners’ court to order an election for the purpose of determining whether or not a special tax should be levied against all property in said district for the support of said school. Said election was ordered and held, and an order entered declaring said election had carried, and said court thereupon levied a special tax for the maintenance of said school, said tax being for 30 cents on the $100 valuation, and, under the direction of said court, the county tax assessor assessed said tax, placed same upon the rolls of said county, and same now appears as being due by these plaintiffs and the other taxpayers of said district, and will continue to appear as a lien against their property for the amount claimed to be due by them. That defendant Keller, as tax collector for said county, is demanding and attempting to collect both said tax levies from these plaintiffs and the other taxpayers of said district. That plaintiffs own their property in said district and desire to pay their taxes thereon, but said collector, a'cting under tile orders and direction of said commissioners’ court, refuses to take the taxes legally due by plaintiffs without their paying said special tax so levied, which they claim to be unlawfully assessed against them. That the acts of said commissioners’ court, in so consolidating said district, in ordering said bond election, in levying said special tax to pay the interest and sinking fund thereon, and in levying said special tax for the support of the school in said consolidated district, are wholly without authority of law and are in contravention of the laws of this state, and in fraud of the rights of plaintiffs, as well as of many other taxpayers of said district No. 3.

Plaintiffs pray for injunction to restrain the defendants Gainer, Tingle, Dixon, Conrad, and McHugh from issuing and selling said bonds, from levying a special tax against plaintiffs or their property for the purpose of paying the interest thereon or for creating a sinking fund for their payment or for the support of a school in said consolidated district, and from directing and causing the defendant Keller to collect or attempt to collect said special tax from each of the plaintiffs, and restraining the defendant Keller from demanding or collecting said special tax from plaintiffs, and, upon final hearing, that they have judgment making such injunction permanent and setting aside the order of said commissioners’ court in consolidating said districts and declaring said order to be void, leaving said districts as they were, and legally are at this time, and declaring said special tax so levied against these plaintiffs to be void and of no effect, and canceling the respective levies thereof, as against plaintiffs.

Upon presentation of the petition, duly verified, to the district judge, in vacation, on January 16, 1916, he granted the injunction as prayed for, making the ease returnable to the April term of the district court of Yoak-um county. Upon the filing of the petition and bond, the injunction was issued and served. On January 28, 1916, the appellees presented to the court in vacation their motion to dissolve the injunction, it being in effect a general demurrer, whereupon the court sustained the motion dissolving the temporary injunction, but continued the case for hearing at the regular term. Appellants contend that the injunction was properly issued, that the petition was not subject to general demurrer, and that the court erred in sustaining the motion and dissolving the injunction.

The first proposition is that consolidating the two districts resulted in the creation of a district containing 431 sections of land; that its geographical center is more than 4 miles from the farthest line of the district, and is therefore unauthorized and illegal. The allegations are that the county contains a population of less than 10,000.

The Acts of the 33d Legislature, Regular Session, c. 129 (Vernon’s Sayles’ Ann. Oiv. St 1914, § 2815), relating to the formation of common school districts, provides that in counties containing a population of less than 10,000 no common school district shall be organized or surveyed in such a manner that the geographical center of the same will be more than 4 miles from the farthest line of said common school district. The district in question, being 30 miles in length and 16 miles in width, is clearly a violation of this statute.

The facts, as alleged in the instant case, show a cause of action very similar to that presented to this court in the case of McLaughlin v. Smith, 140 S. W. 248, and which was reviewed by the Supreme Court, 105 Tex. 330, 148 S. W. 288. In both opinions the right to maintain such an action was recognized, and the action of the county commissioners was declared to be a nullity. The right to enjoin the sale of bonds was upheld, and the creation of the Emma district was set aside. We think the rules announced in that case are applicable here.

The appellees contend that because chapter 129, supra, of the Acts of the 33d Legislature, contains this provision, “that all school districts in this state heretofore laid out and attempted to be established by the proper officers of any county, and heretofore recognized by said county authorities as school districts of said county, are hereby validated in all respects, as though they had been duly and legally established in the first instance.” We are not called upon in this case to pass upon the question as to whether it is the duty of the county school authorities to redistrict their counties in accordance with the provisions of this act, and shall therefore express no opinion as to the validity of districts 1 and 3, before their consolidation. It is only the matter of consolidation with which we have to deal. The consolidation was effected February 11, 1915. The act in question became effective in July, 1913. The curative provision in the act therefore, being retrospective, does not apply to the consolidated district.

The petition alleges, in substance, that the action of the county commissioners, in consolidating two districts, was a fraud upon the rights of the petitioners and other patrons of the school residing in district No. 3. If this allegation be true, a curative act would not be construed to validate such a proceeding. We would not impute to the Legislature the intention of making that valid which every consideration of equity condemns as fraudulent and void.

We think the court erred in dissolving the temporary injunction, and the judgment so doing is reversed, and the cause remanded. Reversed and remanded.
      @=>Eor other cases see same topic.and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    ANGELINA COUNTY LUMBER CO. v. HINES et al.
    (No. 53.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 6, 1916.
    On Motion for Rehearing, March 2, 1916.)
    1. Stipulations <@=>14(4) — Evidence—Ohae-acteb of Title — Limitation.
    Where the parties in an action of trespass to try title agreed that the plaintiff owned a certain named league, unless it was divested by the claimed limitation title of the defendants, who by their pleas expressly claimed title by limitation only to a part of another league, the plaintiff was entitled to judgment.
    [Ed. Note. — Eor other cases, see Stipulations, Cent. Dig. § 27; Dec. Dig. <@=14(4).]
    2. Judgment <@=>256(1) — Pleading <@=>387 —Conformity—-Necessity.
    A judgment must conform to the pleadings and the proof, and the pleadings and the proof must agree.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; Dec. Dig. •@=3256(1); Pleading, Cent. Dig. §§ 1300-1304; Dec. Dig. <@=>387.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge. .
    Action by the Angelina County Lumber Company against L. R. Hines and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Mantooth & Collins, of Lufkin, and W. D. Gordon, of Beaumont, for appellant. W. F. Goodrich, of Hemphill, and Minor & Minor, of Beaumont, for appellees.

      Application for writ of error pending in Supreme Court.

   MIDDLEBROOK, J.

This is a suit in trespass to try title, appealed from the district court of Sabine county, in which appellant was plaintiff, and L. R. Hines, George Hunnecutt, and his wife, Lillie Hunnecutt, G. E. Pratt, A. M. Jones, George Tucker, A. J. Tucker, and his wife, Maggie Tucker, were defendants; and by supplemental petition Elizabeth A. Perry and W. D. Gordon were vouched in as warrantors.

The land involved is about 67 acres of the John S. Lacy league in Sabine county, Tex. Defendants L. R. Hines and George Hunne-cutt were disposed of by agreed judgments. The following agreement constitutes the beginning of the statement of facts:

“It is agreed between the counsel for all parties that the plaintiff has title from the sovereignty of the soil to the John S. Lacy survey, described in plaintiff’s petition, unless it is affected by and divested through defendant’s plea of the statutes of limitation under the three, five and ten years statutes.
“It is also agreed that as to the warrantor, Gordon, the Angelina County Lumber Company bought the land and paid the consideration as alleged in the pleadings, at the rate of $7.50 per acre on 27th of January, 1906.”

Thus it will be seen that the only issues before the tidal court were the defendants’ pleas of three, five, and ten year statutes of limitation.

The case was tried before the court without the aid of a jury, and the honorable trial court found in favor of the défendants on their pleas of limitation and' rendered judgment in their favor for 67 acres of the land sued for, 31 acres to Andrew J. Tucker and his wife, and “about 36 acres” to A. M. Jones, G. E. Pratt, and W. F. Goodrich; and in favor of plaintiff against W. D. Gordon upon his warranty for the sum of $489.75, with 6 per cent, per annum interest thereon from the 1st day of April, 1911.

Numerous deeds were introduced in evidence, all of which deeds in which the land in question is involved describes the land as a. part of the Moses Hill headright survey; but under the agreements of the parties, and our view of the proper disposition of the case, it is not necessary to quote these deeds at length.

The evidence shows and the honorable trial court found that the land in controversy is on the John S. Lacy league in Sabine county, Tex., to which the plaintiff has record title from the sovereignty of the soil. The evidence also shows that George Tucker bought 317 acres of land on the 31st day of May, 1881, from George W. King, being a part of the Moses Hill headright survey; but that in surveying the land 66% acres of the land included in his 317 acres were taken out of the John S. Lacy league, of which the plaintiff is owner.

George Tucker testified as to the issues of limitations as follows:

“I live on this 317 acres; I moved there in 1881, and have lived there all the time except about a year. * * * I lived on it from 1881 to about three years ago. * * * I have gone around this land. Of my own knowledge this has been identified there on the ground since 1879, and I know where the lines were all the time, and bought it and went on it in 1881, moved on it and made my house' on it, and have continuously, from the time I went on the land until 1912, lived on the land. * * * I first cleared about 49 acres in 1882. * * * Through all of this time I claimed this 317 acres of land to the metes and bounds as set out in the deed, and as the line was marked on the ground, as far back as 1878. I cultivated and used the land for myself all the time, and paid the taxes on the land every year on 317 acres, as described in the deed from George King to myself, made in 1881. Nobody else was in possession of the land before I went on it; it was all in the woods. The survey of this 317 acres of land was made in 1879, and I paid the taxes on it continuously from 1881 and claimed this particular land during all that time. * * * I claimed the land under my deeds. * * * I rendered and paid taxes on this land always as on the Moses Hill survey; we thought it was on the Moses Hill survey. We knew the lines as set down on the Moses Hill, and didn’t know that it went over on the John S. Lacy, and I guess I never claimed any land on the John S. Lacy league. I bought on the Moses Hill and believed that was the line and if I got over outside of the Moses Hill, I didn’t know it. It was a mistake on my part if I got over on the Lacy survey, and every one of my tax receipts as far as I know read that way. (It is admitted that all the tax receipts call for the land on the Moses Hill.) I never rendered any land on the Lacy league; I rendered 317 acres on the Moses Hill. As to whether or not it is a fact that it was only about seven years that I put that last few acres there across the line, that according to Mr. Arthur’s testimony in the line between the Moses Hill and the John S. Lacy surveys; I will say that I think it was ten years ago. I think it was in January, 1905, that I cleared it. I think it can be identified that some of it was cleared across the line about twelve years ago, but I wouldn’t swear it. As to whether or not I would swear that it was done as far back as 1905, I will say that I think it was, but at that time I didn’t know that I had gone over on the Lacy league; I didn’t know anything about it. But I did know that I claimed to the line, whether it was on the John S. Lacy or On the Moses Hill.”

Andrew Tucker testified substantially as did his father, George Tucker, and in addition thereto as follows:

“I heard Mr. Arthur testify and know where that line runs as described by him as being the north line of the John S. Lacy league; I saw the stakes in. the field where he made the line; it cuts off a corner of the southeast part of the field; I believe it is the S. E. There is some 8 or 10 acres in that portion. That is down on the creek; it might possibly lack a little of being that much, but there is between ten and six acres of it. I can’t positively fix the date; but that part of the field has been there sixteen or eighteen years. There is a little corner that runs over on the land in question, that has possibly not been there over ten years. * * * Just a little corner, not over a quarter of an acre. We never claimed or paid taxes on any land except on the Moses Hill survey. We thought all of it was on the Moses Hill and never knew, till Mr. Arthur ran this line, that we were over the line. This other line was supposed to be the Moses Hill line. We didn’t claim any land outside of the Moses Hill. We claimed to that line and thought it was on the Moses Hill and paid taxes on the Moses Hill, and if we got off the Moses Hill, it was a mistake on our part. When Mr. Arthur ran the line it cut off a kind of Y-shaped piece of land south of Mr. Arthur’s line. * * * I didn’t see Mr. Arthur go over that land and measure it, and don’t know that that part of the field don’t exceed more than four acres; I didn’t measure it. I mean that to the best of my knowledge, there is more than four acres. That is only guess work, but to the best of my knowledge there would be about six acres, and possibly more, * * * but I wouldn’t say that it amounted to six acres in actual measurement.”

All of the pleas of the defendants under the different statutes of limitation describe the lands they are claiming as on the Moses Hill survey.

Appellant’s first assigned error is:

“Because the court erred in rendering judgment for each of the defendants Tucker, Jones, and Goodrich, for the specific interest by them; defendants having agreed that the legal title to this tract of land, was in plaintiff, unless their respective pleas of limitation is sustained by proof sufficient to warrant a judgment on the statutes of limitation as pleaded by them. * * * ”

Defendant Andrew J. Tucker’s pleas of limitations describing the land he claims under the three-year statute of limitation is as follows:

“Being 317 acres of land, a portion of the Moses Hill headright survey beginning at the northeast corner of George Hunnecutt’s land. * * * ”

Then follows a metes and bounds description of the land he claims. Under his plea of the five-year statute of limitation, he describes the land he claims as the land, “last above described.” “Last above described” refers to his description of the land in his three-year limitation plea.

In his plea under the ten-year statute of limitation he describes the land as “situated in Sabine county, Texas, a portion of the Moses Hill headright survey, described as follows.” Then follows a metes and bounds description of the land that he claims under his ten-year plea of limitation. Goodrich, Jones, and Pratt give the same description in their different pleas of limitations as to original survey, and in each instance describe the land as on the Moses Hill survey.

The undisputed evidence of the surveyor, Arthur, and the map made by him and introduced in evidence by the, defendants, show the 67 acres of land in dispute to be on the John S. Lacy league. This being true, we think the agreement between counsel settles this case. The agreement is that appellant is the owner of the John S. Lacy league described in its petition, unless it is divested through appellees’ pleas of limitation. Hence the defendants’ pleas of limitation must be looked to in order to determine the status and legal effect of the agreement. These different pleas dispute a claim by defendants to any land on the John S. Lacy league, for in each instance they claim on the Moses Hill survey, and do not claim elsewhere than on the Moses Hill survey.

Under these facts, the pleadings of the defendants and the agreement of counsel for all parties, quoted above, the appellees cannot recover' any land on the John S. Lacy league. To do so is to violate the most elementary rules of practice. The pleadings and the proof must agree, and be in harmony with each other. If the pleadings and the proof must harmonize with each other, can it be said that a judgment can be legally entered and enforced that is contrary to the pleadings? We think not. Yet that is exactly what is done in this case, if the judgment is permitted to stand. The defendants’ pleadings state, affirmatively, that the lands they claim by limitation are on Moses Hill survey. Defendants’ counsel agree that plaintiff is the owner of the John S. Lacy league as described in its petition, unless it is divested of such ownership by their pleas of limitation and the proof under said pleas. Their pleas of limitations affirm that the lands they claim by such pleas are on the Moses Hill headright survey. Such being true, if they recover, they must recover on the Moses Hill survey. The defendants’ witness, who surveyed and - made a map of the land, says the land in question is on the John S. Lacy league, and the copy of the map he made, which is a part of the statement of facts of this case, shows, conclusively, that the land in question is on the John S. Lacy league. The judgment awards lands on the John S. Lacy league contrary to the pleadings of the defendants, and therefore cannot be permitted to stand, and appellant’s first assignment of error is sustained.

The second assignment of error is as follows:

“The court erred in rendering judgment for either of the said defendants upon the statute of limitation, as pleaded by them; their pleas of limitation nowhere claiming such possession as taken and held under some written memorandum of title other than a deed which fixed the boundaries of their respective claims duly registered as required by the statute.”

Under this assignment, this proposition of law is asserted:

“An encroachment on the Lacy survey by mistake, with no intention to claim any of the Lacy, is fatal to the plea of title by limitation.”

The deeds introduced in evidence by the defendants all describe their lands on the Moses Hill survey. Their pleadings fix their claims to lands on the Moses Hill survey, and they testify that they do not claim any land except on the Moses Hill survey, and that if they got over on the Lacy survey, it was a mistake on their part. Such being true, and it being true, also, that the judgment decrees land on the John S. Lacy league, such judgment is unwarranted both under the pleadings and the proof; therefore the second assignment of error is sustained.

Two propositions are presented under the second assignment of error; the second, presenting the law. applicable to a small encroachment, not being sufficient to apprise the owner of any adverse claims except as to the land actually inclosed. Under our disposition of the case, it is not necessary to discuss nor to pass upon this phase of the case.

The third assignment of error is submitted as a proposition, and is to the effect that the defendants Jones and Goodrich cannot recover upon their pleas of limitations because the land they claimed was segregated from the Tucker land, before Tucker had matured any title by prescription, and after it was so segregated, Goodrich and Jones had and proved no sort of possession, and therefore under no phase of the case could Jones and Goodrich recover under their pleas of limitation.

It is not necessary for us to pass upon this assignment under our disposition of the case. We think, under the pleadings, the agreement by counsel for all parties, and the proof of this case, judgment should have been rendered for the plaintiff; therefore the cause is reversed and rendered, and judgment is here entered for the plaintiff for the land sued for.

Reversed and rendered.

On Motion for Rehearing.

Appellees have filed an exhaustive motion for rehearing in this case, which under careful consideration discloses no question for review other than this court considered and disposed of in the original opinion; and we still think that the agreement entered into, as quoted in the original opinion, the pleadings of appellees, and the undisputed evidence that the land in dispute is a different grant from the grant specifically pleaded by appellees, and the testimony of the appellees’ witnesses precludes a recovery by them. Authorities: Davidson et al. v. Equitable Sureties Company, 96 S. W. 787; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152; Holland et al. v. Nance, 102 Tex. 177, 114 S. W. 346.

The motion for rehearing is overruled.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LONGINOTTI v. McSHANE.
    (No. 1546.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 2, 1916.
    Rehearing Denied March 9, 1916.)
    1. Frauds, Statute of @=>118(4) — Contract of Sale — Memorandum—Telegrams.
    Under the statute of frauds, Rev. St. art. 3965, the agreement or memorandum required in case of a contract for the sale of realty need not be contained in one instrument, but may take the form of telegrams if, read as one, they present a concluded contract.
    [Ed. Note. — Eor other cases, see Frauds, Statute of, Dec. Dig. <@=>118(4).]
    2. Vendor and Purchaser @=>16(1) — Contract op Sale — Letters and Telegrams.
    A letter intended to finally inform the purchaser that the vendor would not take less than $17,500, to which the purchaser replied that he would give that amount .and to wire him at once, and a telegram from the agent that the vendor accepted that amount, to which the purchaser promptly replied authorizing the agent to close with the vendor for that amount, in connection with a deed definitely describing the realty, furnished in writing the essentials of a written concluded contract of sale.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 17; Dec. Dig. @=> 10(1).]
    3. Vendor and Purchaser @=>75 — Contract — Time por Performance — Reasonable Tuns.
    A contract for the purchase and sale of realty silent as to the time of performance gave a reasonable time for performance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 113-118, 126; Dec. Dig. @=75.]
    4. Vendor and Purchaser @=>81 — Time for Performance — Reasonable Time — Question for Jury.
    Evidence in a purchaser’s action for damages for the breach of a contract to sell certain realty held to make the purchaser’s failure to perform within a reasonable time a question for the jury(
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 136, 137; Dec. Dig. @=>81.]

      5. Vendob and Ptjkchasee @=350 — Ptje-chasee’s Action eoe Damages — Evidence —Deed.
    In such action, the deed executed by the vendor for the purpose of performance of his part of the agreement and intended for delivery to the purchaser was admissible to establish the contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1043-1046; Dec. Dig. @=5300.]
    Levy, J., dissenting in part.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by Louis Longinotti against John P. McShane. Judgment for defendant, and plaintiff appeals.
    Reversed, and cause remanded for trial.
    The action is by appellant to recover of appellee damages for alleged- breach of a contract to sell appellant a certain lot in the city of Texarkana for $17,500 cash. The ap-pellee urged, among other things, the statute of frauds, requiring the agreement, or some memorandum, to be in writing. At the conclusion of all the evidence the court peremptorily instructed the jury to find a verdict in favor of the appellee. Appellant seeks review of the ruling of the court.
    Appellee resides in Texarkana, and appellant in Memphis, Tenn. Jas. A. Longinotti is the son of appellant, and was acting as agent for his father. In January, 1912, ap-pellee placed with J. M. Christopher, a real estate broker in Texarkana, the property in suit for sale. Christopher was to receive an agreed commission from appellee upon the sale. The testimony shows that Christopher entered into negotiations with appellant. The following was the correspondence passing in the form of letters and telegrams:
    Letter:
    “Texarkana, Texas, February 13, 1912.
    “Mr. Louis Longinotti, % Pullman Hotel, Hot Springs, Ark. — Dear Sir and B'riend: I was talking to you in regard to the Joe McShane building on the corner of Broad and Maple streets, which you are very well acquainted with as for location. I have just been talking with Mr. McShane this afternoon, and he says he will take $19,000.00 for the property, so now I think it is worth the money; so I will leave it to you to judge as to that. He said he is offered $200.00 per month for that building if the town goes wet, and he hasn’t any lease on it to any one; so now you can figure for yourself.
    “If you think you cannot pay the $19,000.00 you will please notify me at once by mail in regard to the deal. Hoping, though, that you will decide upon taking the property. The Stevens building is sold; it was sold to Mitch, who, as you know, is running a lunch counter; it was sold for $6,100. I- am very sorry that you did not take it, as I think same was a safe investment; but nevertheless we cannot get every good thing that comes along.
    “Hoping this will find you and your brother Joe well and enjoying good health, I am, “Yours respectfully, J. M. Christopher.”
    Telegram:
    “Memphis, Tenn., April 2, 1912.
    “J. M. Christopher, % Hart Building, Texar-kana, Texas: Wire my expense if Benjamin or McShane house sold, if not best all cash price.
    “James A. Longinotti.”
    Telegram:
    “Texarkana, Texas, Apr. 3, 1912.
    “James A. Longinotti, Care Cordova Hotel, Memphis, Tenn.: Your message received would have replied sooner but waiting on Benjamin just got him decide to take eighteen hundred cash, the McShane building eighteen thousand is least can be bought for please answer immediately if want either building or both my expense.
    J. M. Christopher.”
    Telegram:
    “Texarkana, Texas, April 4th, 1912.
    “Jas. A. Longinotti, Cordova Hotel, Memphis: Answer my message yesterday as am holding off other answer my expense.
    “Jas. Christopher.”
    Telegram:
    “Memphis, Tenn., April 4th, 1912.
    “Mr. Jim Christopher, Care Hart Building, Texarkana, Texas: Give McShane seventeen thousand cash and you one hundred fifty answer.
    James A. Longinotti.”
    Letter:
    “Texarkana, Texas, April 5th, 1912.
    “James Longinotti, Esq., Memphis, Tenn.— Dear Sir: Your telegram received and I have just seen Mr. McShane and figured with him and he turned the $17,009.00 cash for.the building down; he says that he will not take less than $17,500.00. He says that will be the least dollar that will buy it, as the first of the year he can get $190.00 per month rent for it.
    “So now, Mr. Longinotti, if you want the building you will please wire me at my expense, as real estate is advancing rapidly here, there being a great demand for it on Broad Street.
    “You mentioned the Benjamin building; I sold that for $18,500.00 spot cash for Benjamin; so you see real estate is picking up, and you know when you were here some several days ago we went over and examined this building and I told you at the time that this building was easily worth $20,000 as it is corner property. And I still think that it is worth that. So now if you are going to buy this building at the price quoted you, you want to decide right away and wire me at my expense. I am figuring with other parties on this building, and have got McShane down $250.00 less than I have ever got him down before.
    “Hoping you will decide to take and wire me to that effect, at my expense, I am,
    “Yours sincerely, J. M. Christopher.”
    Telegram:
    “Memphis, Tenn., April 6, 1912.
    “Jim M. Christopher, 214% State St., Texar-kana, Texas: Will give seventeen thousand five hundred wire me at once my expense I have another deal to close. James A. Longinotti.”
    Telegram:
    “Texarkana, Ark., Apr. 6, 1912.
    “James A. Longinotti, Cordova Hotel, Memphis, Tenn.: Received telegram just got through with McShane he accepts seventeen thousand five hundred wire me to close deal at once with McShane.
    J. M. Christopher.”
    Telegram:
    “Memphis, Tenn. April 6, 1912.
    “Mr. J. M. Christopher, 214% (State St., Tex-arkana, Texas: Authorize you close with Mc-Shane for seventeen thousand five hundred.
    “Louis Longinotti.”

      Telegram:
    “Texarkana, Texas, April 9th.
    “Louis Longinotti, Care Cordova Hotel, Btem-phis, Tenn.: McShane demands purchase money to-morrow morning. Wire Mr. Grim to pay McShane on approval of title your lawyer. Have consulted Rodgers.
    “J. M. Christopher.”
    Lettergram:
    “Memphis, Tenn. April 9, 1912.
    “W. R. Grim, Texarkana, Ark. Bought through Jim Christopher from McShane his house corner of Broad and Maple streets for seventeen thousand five hundred, on approval of title by Rollin Rodgers and yourself pay seventeen thousand five hundred to McShane. Have deed made to Longinotti and Campanova. Charge account. Kindly act with your usual interest in our behalf. Thank.
    “[Signed] Louis Longinotti.”
    This lettergram was received by'Mr. Grim oetween 8:30 and 9 o’clock a. m. of April 10th, and read over telephone to Mr. McShane.
    Telegram:
    “Texarkana, Tex., Apr. 10, 1912.
    “Mr. Louis Longinotti, Hotel Cordova, Memphis, Tenn.: Lettergram received. Notified Mc-Shane. He said he had already sold property to A. L. Ghio.
    [Signed] W. R. Grim.”
    According to the evidence given by Mr. Christopher, Mr. McShane “read all these telegrams the same as I did, and advised me to answer them,” and Mr. McShane “authorized me to make the price” stated in the letter of April 6th. Christopher further testified, in respect to the telegram of Longinotti dated April 0th, that he showed it to Mr. McShane and—
    “he read the telegram and held it in his hand I suppose five or six minutes, and says, ‘Well, I will do that; you go and wire them I will accept it. I want Mr. Louis Longinotti’s signature to the bottom of the reply.’ ”
    The reply was from Louis Longinotti himself authorizing Mr. Christopher to close the deal. It was undisputed that appellant had on deposit, subject to his check and order, in the Texarkana National Bank, of which Mr. Grim was president, rqore than the amount of the price of the property, Appel-lee, according to the evidence, sold the property to A. L. Ghio between 8:30 and 9 o’clock of the morning of April 10th. It is unnecessary to further set out the evidence.
    Mahaffey & Keeney, of Texarkana, for appellant. Glass, Estes, King & Burford, of Texarkana, for appellee.
   LEVY, J.

(after stating the facts as above). The first' assignment of error urges that there were issues of fact that should have been submitted to the jury for decision, and that the court erred in giving a peremptory instruction against plaintiff.

It has been decided that the agreement or memoranda required by our statute to prevent frauds (article 3965) need not be contained in one instrument, but may take the form of telegrams if they, read as one, present a concluded contract. Duble v. Batts & Dean, 38 Tex. 313; Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Bailey v. Railway Co., 17 Wall. (U. S.) 106, 21 L. Ed. 611; 1 Warvelle on Vendors, § 101; 20 Cyc. 254.

And a majority of the court are of the opinion that, looking to the memoranda in evidence in this case, it may be said that there was furnished in writing the essentials of a written concluded contract of sale between the parties. In connection with the deed, which should have been admitted in evidence, there was definitely described real estate. The letter of April 5th may be regarded as intended to finally inform Mr. Longinotti that, respecting the price, Mr. McShane “will not take less than $17,500. 1-Ie says that will be the least dollar that will buy it.” And it may be said upon receiving the letter Mr. Longinotto promptly replied, “Will give $17,500, wire me at once my expense, I have another deal to close.” Thus there was a definite offer to pay the price stated for the property. And acceptance may convert it into a legal agreement. In reply to this offer there follows the telegram which read:

“Received telegram, just got through with Mc-Shane, he accepts seventeen thousand five hundred, wire me to close deal at once with Mc-Shane.”

And Longinotti promptly replied:

“Authorize you to close with McShane for seventeen thousand five hundred.”

And these two telegrams had the effect, it is thought, to accept the offer and make a completed contract of sale. A valid memorandum appearing from which it may be said that a contract of sale was made, there yet remained in the case, it is thought, issues which the court could not, as a matter of law, undertake to decide upon, and which would have to be passed to a jury for decision.

The letters and telegrams, if found to be authorized by McShane, that effectuated a contract of sale, are silent as to the time of performance. Consequently the doctrine of reasonable time, which applies to an agreement when no time of performance is specified, would be read into the contract. 1 Warvelle (2d Ed.) on Vendors, § 138; 2 Page (Ed. 1905) on Contracts, § 1154. Thus, if it devolved upon Mr. McShane to do the first act toward performance of executing and tendering a valid deed, he had the right to a reasonable time in which to do so. And likewise 'Mr. Longinotti would have the right to a reasonable time from the date of the contract within which to put himself in a condition to perform his part. Neither Mr. McShane nor Mr. Longinotti would be in default under the -contract, or entitled to abandon the contract, before a reasonable-time for performance elapsed.

What constitutes a reasonable time, prompt action being contemplated, must in each particular case depend upon the situation of the parties, considering the circumstances attending the performance. In order, therefore, for appellee to predicate the right to abandon the contract, the court should have been authorized to say, under all the circumstances, as a matter of law, that a reasonable time for performance had elapsed and Mr. Longinotti was in default at the time of the sale of the property by .McShane to Ghio. It is thought that the court could not so declare as a matter of law. It would appear that appellee was ready and offering to perform on April 8th, and directing that a telegram be forwarded to appellant at Memphis, Tenn., demanding performance on his part by, according to Christopher’s evidence, 9 o’clock a. m. of April 10th. Regarding this telegram as evidence, as it is, of a request or demand by McShane that the purchaser hasten the performance, the purchaser upon receiving this notice could fairly expect to perform by and at that time. And the reply telegram of Longinotti to Mr. Grim could not be taken as conclusive of an intention not to perform at the time set by McShane, if he did set that time, for the other testimony of Longinotti is that he was ready, willing, and able to perform at all times. All this, therefore, was sufficient evidence to require the jury to decide whether or not there was. a breach or failure by Lon-ginotti.

It is concluded that the deed executed by McShane on April 8th should have been admitted, because the evidence shows it was executed for the purpose of performance by McShane of his part of the agreement and was intended for delivery. The deed, in connection with the correspondence, sufficiently furnished in writing memoranda of definitely described real estate. McCown v. Wheeler, 20 Tex. 372; Ryan v. United States, 136 U. S. 68, 10 Sup. Ct. 913, 34 L. Ed. 447.

The writer does not agree that the letters and telegrams, considered as if blended into one and signed by the parties, import a present concluded contract in writing of sale of the property. If the memoranda relied on, consisting of the letters and telegrams, do not show a concluded agreement, then there was no completed agreement in any writing, and the statute of frauds would have application. The deed, if in evidence, shows on its face a different agreement. The letters and telegrams show on their face a series of connected correspondence, in which the parties were merely endeavoring to agree upon a price and then afterwards formally enter into a contract of sale of the property. The telegram of April 6th, sent by the son of appellant to the real estate broker, was dearly a reply only to the letter of the real estate broker sent the day previous. And the words of the telegram, “Will give seventeen thousand and five hundred,” were only intended, as explained by the writing of the letter, as the manifestation of assent on the part of Longinotti, given to the real estate broker, that the price stated was satisfactory and that he was willing to come up to that price. And so understanding that the wording of the telegram intended only willingness to pay that price, the real estate broker then further communicated with the son of appellant saying to the effect that he had notified the owner of the property of the willingness to give that price, and that the owner (Mc-Shane) indicated acceptance or assent to such price, and to therefore “wire me [real estate broker] to close deal at once with Mc-Shane.” Appellant himself, and not his son for him, then promptly “wired” to the real estate agent, “Authorize you close with Mc-Shane for seventeen thousand five hundred.” Was this the expression of a present completed contract according to the intent and understanding of the parties at the time these latter telegrams were sent and received? The word “deal,” as used, evidently refers to final agreement in particulars of the trade or contract for the property then in open negotiation between the parties. And authorizing a third person to act for the proposed buyer, as Longinotti did, with the seller, to “close deal” or trade, is inconsistent with the intention of having or understanding there was any present agreement completed and concluded. The parties by the phrases “close deal” and “authorize you close with McShane” contemplated, in the light of their acts, further mutual transactions or agreement in respect to the property in order to have and conclude a mutual agreement or contract of sale between them. If the parties did not by the telegrams intend to make a present agreement, the law cannot and does not give the memoranda the legal effect of a present agreement. Consequently the minds of the parties could not be said to have met in complete and formal final agreement until, according to the language, the “deal” or trade was closed or concluded by McShane, acting for himself, and Longinotti, acting through Christopher as intermediary or agent, entering into final and formal agreement of sale and purchase. A deal or bargain is not closed or concluded with the seller and purchaser, acting through an authorized intermediary, until such agreement is actually entered into by the seller and such intermediary or agent. If such agreement was made at all it was not in writing in any form, as shown by the evidence.

But even taking the view of the majority —that the words “McShane accepts” should be construed as having the legal effect of a completed contract by acceptance of a proposal of Longinotti — then it would follow, I think, that the further wording, “authorize you close with McShane for seventeen thousand five hundred,” would necessarily be construed as Longinotti’s appointing Christopher as his agent to finally carry out or perform the terms of sale. If the parties knew a contract was already effected between them, the phrase “close deal” was meant to accomplish a change from one of the parties to the other of interest or title to the property. In the performance of the completed terms of sale by Longinotti, acting through Christopher, there were only the acts of receiving the deed from McShane and paying over the money. According to the evidence Longinotti had the money in the bank at Texarkana. And according to the evidence McShane tendered the deed to Christopher; and, failing to pay over the purchase price, as Longinotti, or Christopher for him, did, McShane demanded of Christopher the money. Christopher, as agent of Lon-ginotti, informed his principal of the demand of McShane; and Longinotti, instead of authorizing the bank to pay unconditionally the money, superadded terms not agreed upon. The court could have said, as a matter of law, that a reasonable time necessary to receive a deed and pay the money had elapsed, and that Longinotti by his telegram was not ready, willing, and prompt to execute his part of the contract, even if McShane had not waited until precisely 9 o’clock of April 10th.

Judgment reversed, and the cause remanded for trial.

         — ^Fnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes