author: McCLENDON, j. PHILLIPS, C. J.

text:
    GULF, C. & S. F. RY. CO. v. GADDIS et al.
    (No. 39-2692.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Railroads <@=>324(1) — Crossing — Negligence.
    One crossing a railroad track must exercise some degree of care for his own safety, being charged with knowledge that a railroad track is a dangerous place, even at a public highway.
    2. Railroads <@=>331(4) — Crossing Accidents — Negligence.
    Whore deceased, though warned by flagman maintained at a highway crossing, attempted to cross in front of a train running at a speed in excess of that fixed by ordinance, he was guilty of contributory negligence, and no recovery could be had on the theory that he could assume the railroad was not violating the ordinance, and, if not, he could pass ahead in safety.
    3. Appeal and Error <@=>995 — Review — Findings.
    Reasonableness of a conclusion from undisputed facts is to be tested by the inherent soundness or reasonableness of the conclusion itself, and an appellate court must decide the question for itself.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Nancy Gaddis and - others against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (166 S. W. 124), and defendant brings error.
    Reversed and rendered.
    Terry, Cavin & Mills, of Galveston, and Lee & Lomax, of Ft. Worth, for plaintiff in error.
    Slay & Simon, of Ft. Worth, for defendants in error.
   McCLENDON, j.

This case is brought to the Supreme Court upon writ of error by defendant to review a judgment of the Court of Civil Appeals, Second District (166 S. W. 124), affirming a judgment of the district court of Tarrant county in favor of plaintiffs in an action to recover for the death of Jack Gaddis, who was killed about 9:30 o’clock p. m., December 28, 1911, at Elizabeth street crossing in the city of Ft. Worth by one of defendant’s passenger trains.

The sole question presented for our decision is whether Gaddis was guilty of contributory negligence as a matter of law.

The evidence is practically undisputed, the defendant having offered no testimony. The facts material to the issue here presented are simple and substantially as follows: Elizabeth street, which extends north and south, was intersected by the main line of defendant, as Well as by several tracks of other companies. It was frequently traveled both by vehicles of every character and by pedestrians. The defendant maintained a watchman for the protection of travelers upon the street. Gaddis, who was 44 years of age, had lived some years in Ft. Worth; and, when traveling from his home to the business part of the city on foot, by the most direct route, he had to pass over the Elizabeth street crossing. The defendant’s track north of the crossing is straight and unobstructed, for a distance of about 900 feet. Upon the night in question, the passenger train that killed Gaddis was traveling south upon defendant’s main line track at the rate of about 20 miles per hour, in violation of a city ordinance limiting the speed of trains to 6 miles per hour. When the train was at a distance of about 500 feet and again at about 300 feet of the crossing, the whistle was sounded and the bell was continuously rung. The electric headlight on the engine was burning and threw a flood of light down the track. Gaddis was walking east on the south side of Elizabeth Street at an ordinary gait. The flagman was in the center of the street, waiving a red lantern, and, when Gad-dis was about 15 feet from the track, the flagman called to him to look out. The flagman was then in the center of the street some 20 to 24 feet north of Gaddis. Gaddis turned his head in the direction of the flagman, quickened his pace in the direction he was going, and just as he reached the track was struck by the train and killed. About the time the engine entered Elizabeth street, the whistle of the engine gave several short, sharp blasts, the brakes were applied, and the train came to a stop, but not until the engine bad passed tbe crossing several car lengths. At the time Gaddis turned his head toward the flagman, the engine was some 60 or 70 feet north of where he was struck.

The theory of plaintiffs is that when Gaddis was warned by the flagman, and turned his head in that direction, he saw the train, and, assuming that it was going at not exceeding 6 miles an hour as required by the ordinance, he calculated that he could with safety cross the track in front of it; and that, under this theory, it was a question of fact for fhe jury to determine whether a man of ordinary prudence would have then attempted to cross in front of the train. The issue by the uncontroverted facts is thus narrowed down to the question whether as a matter of law one traveling upon a highway is warranted in using his own judgment in attempting to pass in front of a moving train in a case where the railway company has provided a flagman for the protection of passers and the flagman warns him not to pass. The cases cited by plaintiffs in which it is held that one using a public highway has a right to assume that a railway company, making use thereof, will not violate the law, are all lacking in the element, here present, that the railway company had provided a flagman for the very purpose of warning and protecting the public. The test to be applied of ordinary care on the part of those using the highway is usually one of fact for the jury, and this is true, not only when the facts and surrounding circumstances are in dispute, but even where the facts may be undisputed if the inferences from those facts admit of different reasonable conclusions. This is so because the question of negligence is, after all, one of conclusion from facts and circumstances, and it is not always proper to say that but one conclusion can reasonably be drawn from the same undisputed facts. It is well settled in this state that one who crosses a railroad track must, as a-matter of law, exercise some degree of > care for his own safety.

All men in possession of their faculties are charged with knowledge that a railroad track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such, action and the use of such care as ordinary prudence would dictate in so doing. Where no care whatever has been exercised, our courts uniformly hold that contributory negligence exists as a matter of law, and recovery is denied. What acts of prudence as constituting ordinary care are required is usually a question of fact. Had Gaddis, upon approaching the crossing, seen the train at an approximate distance of 60 or 70 feet, when he himself was some 15 feet from the track, and in good faith believed, judging from the distance and speed of the train, that he had ample time to cross in safety, it may be, under fhe circumstances, that a jury would be warranted in finding that he was not guilty of negligence. He was a resident of Ft. Worth, and no doubt knew of the ordinance, and had the right to assume that the train was not running in excess of the speed limit, unless, from his observation and all the surrounding circumstances, such assumption was not warranted. This seems to be the holding in the case of Railway v. Wagley, 15 Tex. Civ. App. 308, 40 S. W. 538, cited by plaintiffs. We do not believe, however, it is reasonable to acquit Gaddis of negligence, where the additional fact exists that the flagman placed by defendant for the purpose of preventing injury warned him against the venture. We have not found any case by our Supreme Court deciding this question; but the decisions of other jurisdictions, in so far as they have come to our knowledge, are all to the effect that, under such circumstances, no recovery can be had. Borglum v. Ry., 90 Conn. 52, 96 Atl. 175; Ry. v. Nichols, 74 III. App. 197; Ry. v. Batson, 81 Ill. App. 142; Ry. v. Williams, 87 Ill. App. 511; Ry. v. Sink’s Adm’r, 118 Va. 439, 87 S. E. 740; Emery v. Ry., 173 Mass. 136, 53 N. E. 278; Hanson v. Ry., 62 N. J. Haw, 391, 41 Atl. 868; Oberdorfer v. Ry., 149 Pa. 6, 27 Atl. 304; Ry. v. Colvin, 118 Pa. 230, 12 Atl. 337; Cleary v. Ry., 140 Pa. 19, 21 Atl. 242; State, to use of Dyrenfurth, v. Ry., 73 Md. 374, 21 Atl. 62, 11 L. R. A. 442.

We are constrained to hold that Gaddis was guilty of negligence as a matter of law. To do otherwise, we believe, would be the enunciation of a rule contrary both to sound policy and common experience. The right of the public to use a highway is not altogether without its restrictions and limitations. ⅛ The railroad company, likewise, has its rights. Necessity requires the crossing of highways by the tracks of railways and the running of trains thereon. Danger to the public is a necessary consequence, and members of the public are required to take this into consideration in using the highway and to be governed accordingly. When a railroad company lias provided at a crossing a flagman charged with the duty of knowing of the approach of trains and of the times when danger to the public in crossing the track exists, we think it unreasonable not to require users of the crossing to subordinate their own judgment to.that of the flagman; and when they do not do so, and injury results, it should be at their own risk.

We are met with the suggestion that a contrary opinion has been reached by twelve jurors, a trial judge, and three judges of the Court of Civil Appeals, from which it is urged that such conclusion must be reasonable. We are not unmindful of the force of this suggestion. However, the reasonableness of a conclusion to be drawn from undisputed facts is not to be tested by tbe reasonableness of the individuals who arrive at it, but by the inherent soundness or reasonableness of the conclusion itself; and, when such question is presented to an appellate court for decision, such court must decide the question for itself, untrammeled by what other minds may have concluded, and with the consciousness that its own conclusion may not in every instance meet the full approval of others equally capable but not charged with the ultimate duty of decision. A different conclusion by other minds is, of course, persuasive. Which fact makes valuable the opinions of other jurisdictions not binding, as a matter of law, upon this jurisdiction. But in the last analysis each court is charged with the duty and must for itself determine the question of reasonableness of a particular conclusion from a given undisputed state of facts; and, with all deference to those with whom we here differ, we have been unable to reach any other reasonable conclusion but • that contributory negligence as a matter of law is shown in this case.

We therefore conclude that the judgments of the district court and Court of Civil Appeals should be reversed, and judgment rendered for plaintiff in error; all costs to be assessed against defendants in error.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McCLENDON, j. PHILUIPS, C. J.

license: Public Domain

text:
    INTERNATIONAL & G. N. RY. CO. v. ISAACS.
    (No. 48-2717.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    Appeal and Eebob <3=»1064(1)^Review— Haemless Eebob — Instbuctions.
    Error in an instruction charging that it was the duty of defendant’s trainmen to blow the whistle within 80 rods of the crossing, instead of a distance of at least 80 rods, as required by Rev. St. 1911, art. 6564, was prejudicial error, although there was evidence of violation of a city ordinance as to speed, upon which the jury might have based its verdict; it not appearing upon what issue the jury based its verdict.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by J. L. Isaacs against the International & Great Northern Railway Company, From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which, affirmed the judgment (168 S. W. 872), and defendant brings error.
    Reversed and remanded.
    Thompson & Barwise and Geo. W. Wharton, all of Ft. Worth, for plaintiff in error.
    Alexander, Power & Ridgeway, of Ft. Worth, for defendant in error.
   McCLENDON, j.

Plaintiff recovered judgment against the defendant railway company in an action for damages on account of being thrown from a wagon which was struck by one of defendant’s passenger trains in the city of Ft. Worth. The Court of Civil Appeals of the Sixth District affirmed the judgment. 168 S. W. 872.

The court instructed the jury that it was the duty of defendant’s trainmen to blow the whistle within 80 rods of the crossing, instead of at a distance of at least 80 rods from the crossing, as required by article 6564, R. S. 1911. One of the theories upon which plaintiff sought recovery was that by reason of the failure to blow the whistle he was placed in a position of danger which so frightened him as to relieve him of the requirement to use ordinary care for his safety.

The testimony was sufficient upon this phase of the case to support a finding of the following facts; Plaintiff was traveling east on Llano street, driving a delivery wagon. For some distance prior to' reaching the crossing there were houses and other obstructions on the north side of the street up to within a very short distance of the crossing. In addition, there was a cut Just north of the crossing which obstructed from view an approaching train beyond a distance of some 150 feet north of the crossing. The train which struck plaintiff’s wagon was a passenger train approaching Llano street from the north. When plaintiff was some 200 or 250 feet west of the crossing, his horse became somewhat frightened and began to run and buck, but was under control by the time plaintiff had arrived within 50 or 60 feet of the crossing. At that time plaintiff looked north and south, and neither heard nor saw the train and proceeded on to within 20 or 25 feet of the crossing, when he looked north again, and saw the top of the engine moving south through the cut. This sudden appearance of the train upset and frightened plaintiff, and ■ under the influence of these emotions he decided that the best means of saving himself was to drive his horse rapidly across the track in front of the train. He concluded that he could do this with safety. Whether the whistle was sounded within 80 rods of the crossing was a sharply controverted issue of fact.

That the charge complained of was erroneous is conceded, but it is urged that the error was harmless in that the jury may have based, and probably did base, its verdict upon another ground of negligence; namely, the rapid speed of the train in violation of a city ordinance. We cannot accede to this proposition. It is not possible for ns to know upon what the jury based its verdict. The evidence was sufficient for them to have found the facts as above outlined, and under the charge of the court they were instructed to find for the plaintiff under those facts if, in addition, they should find that the whistle was not sounded within 80 rods of the crossing. We therefore conclude that the error complained of was material and prejudicial.

The other questions raised by plaintiff in error, we think, were properly disposed of by the Court of Civil Appeals.

We conclude that the judgments of the district court and Court of Civil Appeals should be reversed, and the cause remanded to the district court for a new trial; all costs of appeal to be taxed against the defendant in error.

PHILUIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court We approve the holding of the Commission.
      cg=>For other cases see same topic and KEY-NUMJBEIt in all Key-Numbered Digests and Indexes


author: SADLER, J. "PHILLIPS, C. J.

text:
    PEDEN IRON & STEEL CO. v. JAIMES.
    (No. 28-2657.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)

    1. Appeal and Error <&wkey;1095 — Review — Findings.
    Whether the issue of contributory negligence was raised by the evidence is a question of law, and the finding of the Court of Civil Appeals that no such issue was raised is not binding on writ of error to review its decision.
    2. Master and Servant i&wkey;291(12) — Injury to Servant — Instructions.
    An instruction that the burden was on plaintiff to establish facts necessary to recovery by a preponderance of the evidence, and that the burden was on the master to establish to the jury’s satisfaction the servant’s contributory negligence, is erroneous, being equivalent to a charge calling for a finding beyond a reasonable doubt on the issue of contributory negligence.
    3. Master, and Servant t&wkey;289 (27) — Injuries to Servant — Contributory Negligence— Question eor Jury.
    In a servant’s action for injuries received while pipe was being loaded into a wagon, held, under the evidence, that whether the servant was guilty of contributory negligence in getting into the wagon while loading was going on was for the jury.
    4. Appeal and Error <&wkey;H70(9) — Review-Harmless Error.
    Notwithstanding rule 62a (149 S. W. x), relating to harmless error, held, in view of rulings of the Supreme Court in construing other rulings, that the giving of an instruction, in a servant’s action for injuries, where the evidence raised the issue of contributory negligence, which required defendant to establish the same to the satisfaction of the jury, was prejudicial error.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by E. M. Jaimes against the Peden Iron & Steel Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (162 S. W. 965) and defendant brings error.
    Reversed and remanded for new trial.
    Emmett B. Cocke and Templeton Brooks, Napier & Ogden, all of San Antonio, and Baker, Botts, Parker & Garwood, of Houston (W. H. Walne, of Houston, of counsel), for plaintiff in error.
    Hertzberg, Barrett & Kereheville, of San Antonio, for defendant in error.
   SADLER, J.

Plaintiff in error seeks a reversal of the judgments of the Court of Civil Appeals and of the district court for error in the court’s charge on the burden of proof In relation to contributory negligence.

The court charged the jury as follows:

“The burden of proof is upon the plaintiff to establish the facts necessary to a recovery by him by a .preponderance of the evidence. The burden of proof is upon the defendant to establish to your satisfaction the contributory negligence of the plaintiff.”

These two charges are found at the close of the court’s charge and are given in the same connection. In this case the plaintiff sought recovery from the defendant, plaintiff in error, for an injury alleged to have been received by reason of the negligence of defendant while plaintiff was its servant. The defendant pleaded contributory negligence.

The Court of Civil Appeals held that while the charge on the burden of proof as to contributory negligence was erroneous, yet it was not such an error as called for a reversal of the cause. 162 S. W. 965.

Defendant ih error was injured while he was' assisting in loading iron pipe at the place of business of the defendant. The question of contributory negligence arises with reference to whether or not it was negligence on the part of the defendant contributing to his injury for him to get into the wagon on which the pipe was being loaded. The evidence is conflicting on this issue. The plaintiff testified that he got into the wagon on the order and under the direction of defendant’s manager, while the manager denied directing or instructing him to get into the wagon, and another witness who was present testified to facts tending to corroborate the manager that no directions were given to the plaintiff! to get into the wagon. There is evidence in the record to the effect that it was neither proper nor necessary for the plaintiff to be in the wagon into which the pipes were being loaded.

The Court of Civil Appeals in its opinion says that the plaintiff “was in the wagon by the orders of his foreman,” also that he “was not experienced in loading pipe of the kind described,” and that “he did not know its weight, and did not realize the danger of obeying the order to get in the wagon”; further, that “the evidence of appellee did not tend to show contributory negligence. He was an inexperienced man, and was acting under the orders and immediate supervision of his foreman.”

On motion for rehearing the Court of Civil Appeals states that there was no evidence of contributory negligence unless getting in the wagon was contributory negligence. That act was either commanded by the superintendent, or he permitted an inexperienced boy to do a thing which he knew was dangerous. In either event, appellee was not guilty of contributory negligence.

If we are bound by the above findings of the Court of Civil Appeals, it follows that even though it may have been erroneous, abstractly, to give the charge in question on the burden of proof with reference to contributory negligence, yet such error would be immaterial, and would not call for a reversal of the cause, since no injury to the defendant could have resulted therefrom. However, we are of opinion that we are not bound by these findings of the Court of Civil Appeals, it being a question of l,aw as to whether contributory negligence is raised by the evidence.

By an unbroken line of decisions the charge complained of has been declared erroneous by the courts of this state, and has been declared to be equivalent to a charge cabling for a finding beyond a reasonable doubt by the jury on the issue. Baines v. Ulmann et al., 71 Tex. 537, 9 S. W. 543; Ry. Co. v. Matula, 79 Tex. 582, 15 S. AV. 573; Ry. Co. v. Harnett, 80 Tex. 82, 15 S. W. 556; Ry. Co. v. Bartlett, 81 Tex. 43, 16 S. W. 638; Emerson v. Mills, 83 Tex. 388, 18 S. AV. 805; Willis & Bro. v. Chowning, 90 Tex. 625, 40 S. W. 395, 59 Am. St. Rep. 842.

AVe have made a very careful and cautious examination of the statement of facts, and are unable to find any evidence justifying the conclusion that the plaintiff was “an inexperienced boy.” All through the statement of facts defendant is treated as a man and is so called. The only facts discovered which might justify a conclusion that he was a boy is that contained in the testimony of Dr. T. T. Parker and Charles M. Cain. Dr. Parker testifies:

“The phone message came from Mr. Fussell’s office. He said this was a friend of his, and he wanted me to go out there. I know he knew the plaintiff very well. He told me these were good people and friends of his, and his brother had employed him before to treat the boy’s mother. He told me the boy had a couple of physicians to treat this man the first time, and he said he wouldn’t come back unless he was sent for. I told him I wouldn’t go if it was his case, and he said it wasn’t. He was simply sent out there by the company to set this man’s leg.”

Here the doctor uses the word “boy” twice, but he likewise refers to the injured plaintiff twice as “this man.” • It is believed that, under this statement, the testimony of the doctor cannot be construed to have application to “an inexperienced boy,” but rather that he uses the word “boy” in that more general sense which may be applied either to man or boy.

Cain in his testimony on cross-examination refers to the plaintiff as “boy,” but'he also refers to him as “man.” There is nothing in Cain’s testimony which would justify the conclusion that he was testifying about “an inexperienced boy.” The testimony of the plaintiff himself is to the effect that he had been working for the defendant about eight months or more hauling different stuff, such as pipe, galvanized iron, corrugated iron, and tin plate.

There is evidence in the record which might be considered by the jury.as showing that the plaintiff had knowledge of the danger attendant upon his presence in the wagon into which the pipe was being loaded. It is apparent from the record that the plaintiff had, prior to getting into the wagon, assisted in rolling the iron pipe on skids, assisted by two other laborers, up to the edge of the wagon. He was shown to have handled other piping and other class of metals. The jury might have drawn the conclusion that he knew that this pipe was very heavy, and that he knew there was danger in allowing it to fall from a distance of 18 inches to 3 feet into the wagon while he too was in there. The evidence on this issue is conflicting. The evidence as to whether or not he ought to have been in the wagon as a part of his duty is also conflicting. The facts with reference to whether he voluntarily entered the place where he was injured or did so under command of a superior for whose act the defendant might be chargeable, is also sharply conflicting. The issue of contributory negligence is fairly raised by the evidence.

From all the facts and circumstances presented by the record, a question of fact to be determined by the jury was • presented with reference to the contributory negligence of the plaintiff.

A careful consideration of the testimony shows that there was a conflict in the evidence, and a sharp issue drawn before the jury, as to whether the plaintiff was an independent contractor, or the employs of and acting for an independent contractor, or whether he was in the service of the defendant so as to give rise to the relationship of master and servant. The evidence on the question of the negligence of the defendant is also conflicting. In view of the record, it was a very material matter to the defendant to have the issue of contributory negligence properly presented to the jury for its consideration.

We are of opinion that this is not a case in which the error complained of can be called purely academic, or that the complaint made by the defendant can be denominated technical. Under our view of the established holdings of our courts and the fixed rules of construction, the charge on the burden of proof in this case, as applied to the defendant’s defense of contributory negligence, is such error as deprives the defendant of a substantive legal right.; and in view of the fact that it is coupled with and immediately follows the charge on the burden resting upon the plaintiff, intensifies the error.

The Court of Civil Appeals seeks to justify its holding that the error is immaterial by calling to its aid rule 02a (149 S. W. x). ■ While we are not cognizant of any direct expression by the Supreme Court with reference to the scope or tq the limitations which should be given to rule 62a, yet, in view of the holdings of the Supreme Court in construing rules 24, 25, and 26, as announced in Land Co. v. Mc-Clelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105, we are impressed that this rule is not intended to change, modify, or destroy the law which controls in the determination of questions of this character.

However, should we view the rule in the light of the opinion announced by the honorable Court of Civil Appeals in this case, we cannot accede to the application which it has made of the rule.

With reference to contributory negligence as presented by this record, it is one of the vital issues to be determined. The defendant without question had the right under the law to have this issue presented in accordance with the established rules of law. It is an impossibility for the appellate courts to determine what moves the minds of 12 men,, sitting as jurors in drawing conclusions from the evidence, and it is not fair to the jurors to assume that they are ignorant or incapable of understanding the meaning and effect of the language used by the court in submitting to them the rules of law that should govern them in their determination of the quantum of proof necessary to establish an issue. It strikes us that it is rather more in line with correct reasoning to hold that the jurors are capable of understanding the court’s charge, since otherwise they could not comply with their oaths, wherein they swear that they will render a ' correct verdict according to the law and the evidence. They receive the law from the court and must be governed thereby. In order to comply with their oaths, they must at least endeavor to follow to the very best of their ability and to the limit of their understanding the rules which the court prescribes for their government in determining the issues which are presented. Even though the courts may be of the opinion, or might feel, that the jury was incapable of drawing those rather close distinctions which the more experienced mind of the trained student could, yet we are bound by the rules of law to concede to the jurors that right and that ability. Every man is presumed to know the law, and, while this may be a rather farfetched presumption, yet it is one which the courts are compelled to recognize. It is, therefore, in the opinion of this court, in consonance with the rules of law and good sound reasoning to adhere to the proposition that the jury correctly interprets the meaning of the court’s charge, and that they, in the exercise of their, sovereign power as jurors in passing upon the evidence and in determining the issues presented, permit the direction of the law to govern them in their deliberations.

Such being our conclusion, how can we get away from the proposition that injury is shown where the court in one breath says to the jury the law authorizes you tq find on certain facts supporting an action by a simple preponderance of the evidence, and yet on certain other facts vital to a dbfense you must be satisfied, convinced, and must find beyond a reasonable doubt before you can act. We prefer to concede to the jury not only integrity, but intelligence, and therefore must hold that they understood the court’s charge in the instant case to require them to find beyond a reasonable doubt that the plaintiff was guilty of contributory negligence before they could give it the benefit of its defense.

If we are correct in thus concluding, then does it not appear affirmatively from the record that injury must have resulted to the defendant by reason of the court having deprived it of its legal right to have defense established by a preponderance rather than by a greater quantum of proof?

While it may be advisable to reach a determined settlement of litigation, yet this court has been created for the purpose, and the incumbent duty rests upon it to hold in check that tendency which may exist to diverge from the strict rules of law governing substantial rights. It may be permissible, and in our opinion is, to be more liberal in those matters which are purely technical and are not substantive; but, no matter how much we may feel inclined to exercise liberality with reference to rules of procedure which do not deal with substantive rights, it is not tlie province of this court to legislate, and, therefore, in bowing to the will of the law as it is written and as it has been pronounced by the wisdom of those who have had its interpretation, we are but acting within the demands of duty. Until the Legislature sees fit by its pronouncement to voice the purpose of the people to change the law on matters of the character here presented, we feel that this court is without power to do otherwise than adhere to and follow the law.

We are therefore of the opinion that the District Court erred in giving the charge in question, and that the Court of Civil Appeals erred in affirming the judgment, and that the judgment of each of said courts should be reversed and the cause remanded for a new trial.

"PHILLIPS, C. J.

The judgment as record-mended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court'. We approve the holding of the Commission on the question discussed.
      <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MONTGOMERY, P. J. PHILLIPS, C. J.

text:
    WHITTENBURG v. GROVES.
    (No. 41-2696.)

    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. VENDOR AND PURCHASER <&wkey;110 — REPUDIATION by Seller — Right op Purchaser.
    Where seller of land refused to perform and repudiated obligation, buyer had right to have contract enforced by suit, if he was willing to take such title as seller could convey, and also had right to accept seller’s repudiation and treat contract as abandoned.
    2. Vendor and Purchaser i&wkey;190 — Purchase of Outstanding Title — Right op Purchaser.
    Purchaser of land was within his rights when he purchased and had conveyed to him apparent outstanding title in heirs of third person, purchase not being inconsistent with his right to have vendor perform by conveying whatever title he had.
    3. Vendor and Purchaser &wkey;>86 — Abandonment op Contract — Assertion op Outstanding Title.
    Assertion by purchaser of land of title obtained from heirs of third person by bringing against seller suit in trespass to try title to recover land in reliance on outstanding title, held to have amounted to abandonment and repudiation of contract of purchase which was no longer enforceable, either by buyer or seller.
    4. Specific Performance &wkey;>61 — Contract por Sale op Land — Purchase op Outstanding Title.
    Purchaser of land who acquired from heirs of third person an outstanding title, and sued seller in trespass to try title to recover land, but lost suit, held not entitled to specific performance of contract of sale; bringing of action having been repudiation of contract.
    6. Specific Performance <&wkey;61 — Contract por Sale op Land — Abandonment op Contract-First Default op Other Party.
    Principle, that where party to contract defaults he cannot set up subsequent default of other party to relieve him from liability, has no application to give purchaser of land right to specific performance of contract which he abandoned by assertion by suit of outstanding title acquired from third persons, though seller was first in default by refusing to perform.
    Error to Court of Civil Appeals of- Seventh Supreme Judicial District.
    Suit by J. A. Whittenburg against R. F. Groves, resulting in judgment for plaintiff, which was reversed by the Court of Civil Appeals (165 S. W. 889), and plaintiff brings error.
    Cause remanded to the trial court for new trial on recommendation of the Commission of Appeals. ■
    Veale & Davidson, of Amarillo, for plaintiff in error.
    R. E. Taylor and W. T. Allen, both of Henrietta, for defendant in error.

      For opinion on rehearing, see 208 S. W. 992.

   MONTGOMERY, P. J.

This suit was instituted by plaintiff in error, J. A. Whitten-burg, to compel the specific performance of the defendant in error, R. F. Groves, of a contract for the sale of two sections of land situated in Hutchinson county, Tex. The contract sought to he enforced was in writing and is here copied:

“The State of Texas, County of Hutchinson:
“Received of J. A. Whittenburg the sum of $210.00 as part payment on the following described land, situated in Hutchinson county, Texas, and known as follows, to wit:
“Section No. 30, block M. 23, T. C. Ry. Co., containing 640 acres; also all of section No. 6, in block R. 2, D. & T. Ry. Co., containing 640 acres, and I hereby agree to make the said Whittenburg a good and perfect conveyance conveying to him the absolute title to the same, save and except the claims of the state for purchase money, reserving a vendor’s lien for the balance of the purchase price, to wit, four notes of $500.00 each, to become due' and payable in one, two, three and four years, respectively after date, the balance of the cash payment to be paid when deed is delivered, in the sum of $790.00.
“The condition of the above obligation is dependent upon my being able to perfect the title held by me under deed from W. B. Ware as administrator, and the compliance on the part of the said Whittenburg in the execution and delivery of the notes hereinbefore referred to, which are to bear 8 per cent, interest per an-num, and payable at Shamrock, Texas.
“Witness my hand this the 10th day of February, 1906. • J. A. Whittenburg.
“R. F. Groves.
“Witness: Ben H. Kelly.”

The plaintiff in error, Whittenburg, in addition to setting out the contract, alleged that when the contract was made Groves was claiming the land referred to therein under a deed from one W. B. Wfere purporting to act as the administrator and the executor of the estate of O. B. Johnson, deceased, and that by the contract Groves bound himself to convey said land to Whittenburg, and further, bound himself that if the title was imperfect he would perfect the same and then convey the land; that in fact Groves’ title was good, and if it was not in fact good then it has since been perfected. Plaintiff prayed for a specific performance of said contract.

Groves in his answer, among other things, alleged that after the execution of the contract, and in the early part of the year 1911, Whittenburg, the plaintiff in the court below, secured from the heirs of C. B. Johnson and Vienna Johnson, his wife, both deceased, quitclaim deeds conveying all the right, title, and interest of said heirs in the land in controversy to said Whittenburg, and that said Whittenburg, relying on the title so acquired, brought an action of trespass to try title against the defendant Groves seeking to recover the identical land described in the contract above, and prosecuted said suit of trespass to try title to final judgment, and that the judgment in said suit was in favor of the defendant Groves, and that plaintiff take nothing.

The facts alleged were relied upon by Groves both as res adjudieata and as constituting a repudiation and abandonment of the contract of sale on the part of Whittenburg.

The evidence showed the execution of the contract of sale as alleged. It also appears that about February, 1909, Groves, in a conversation with Whittenburg, refused to perform the contract, although at that time Whittenburg was ready, able, and willing to perform it and then offered to do so; that Groves then claimed that the contract was conditioned upon his being able to perfect the title to the land, and he then claimed that he had lost one-eighteenth of it in a suit brought by one of the Johnson heirs; and that he had been advised by his lawyers that he was not bound by the contract and he at that time positively refused to carry it out. The plaintiff Whittenburg, testified on the trial of this case that he at all times had been ready, able, and willing to perform the contract.

It was also shown that, after the execution of the contract between Whittenburg and Groves, one of the heirs of G. B. Johnson, deceased, filed suit against Groves and recovered an undivided one-eighteenth interest in the land.

The plaintiff, Whittenburg, in the years 1910-11, secured deeds from various heirs of C. B. Johnson and Vienna Johnson conveying to him the land in controversy. ,

On March 30, 1911, Whittenburg filed,an action of trespass to try title against Groves and others to recover the land described in the contract. The case was tried and judgment rendered in favor of the defendants, Groves and others; the judgment being dated March 4, 1913. The original petition in this suit for specific performance was filed March 3,1913, being one day before the date of the judgment in the trespass to try title case.

In the case of trespass to try title, plaintiff, Whittenburg, asserted title only under the deeds from the Johnson heirs, and the contract of sale was not in any manner involved in the issues made by the pleading or the evidence.

On the trial of the specific performance ease from the judgment in which this appeal is prosecuted, the court gave the jury a peremptory charge to find for the plaintiff, and on the verdict rendered judgment in favor of the plaintiff, Whittenburg, specifically enforcing the contract. This judgment was reversed by the Court of Civil Appeals (165 S. W. 889), said court holding in effect that the giving of such peremptory charge was improper and that the evidence required the submission of the issue of abandonment of the contract on the part of Whit-tenburg to the jury. Writ of error in this case was applied for by J. A. Whittenburg.

Opinion.

For the purposes of this opinion we may concede that Whittenburg was entitled to a specific performance of the contract of sale, unless the evidence shows that he had himself repudiated the contract of sale and thereby placed himself in such a position with reference to the contract as required a court of equity to refuse to enforce it at his instance.

Groves in the year 1909 had positively refused to perform the contract and repudiated the obligation imposed on him by its terms.

Whittenburg then had the right to have enforced the contract by suit provided he was willing to take such title as Groves could convey. 1-Ie also had the right to accept Groves’ repudiation of the contract and thereafter treat the contz-act as abandoned and canceled.

He was within his rights when he purchased and had conveyed to him the apparent outstanding title in the heirs of Johnson, because this purchase was not inconsistent with his right to have Groves perform his contract by conveying such title as he had.

We think, however, that when he asserted the title obtained from the heirs of Johnson against Groves by bringing the suit to recover the land, relying upon that title, his act amounted to an abandonment and repudiation of the contract of purchase from Groves, and that the contract thereafter should be treated as abandoned by both parties and no longer enforceable at the suit of either.

“Abandonment of the contract may be inferred from circumstances or the conduct of the parties inconsistent with- an intention to perform.” 36 Oyc. 720.
“It is an acknowledged rule of equitable jurisprudence that a party entitled to a specific conveyance of property, personal or real, will not be permitted to hold back from an assertion of his rights, and speculate upon the chances of such changes as may decide whether it would be to his interest to have such conveyance made; but he is required to be vigilant and prompt in the assertion of those rights.” De Cordova v. Smith, 0 Tex. 129, 58 Am. Dec. 136.

All the elementary 'authorities announce the principle that in a case of this character a party will not be permitted to speculate upon the chances of profit growing out of such contract, but, as said by one court:

“The plaintiff must show that he has always been ready, willing, and eager to perform the contract.” Phelps v. Railway Co., 63 Ill. 468; 22 Am. & En. of Law, 1062.

In the case of Kelly v. Short, 75 S. W. 887, the Court of Civil Appeals had under consideration a case where the plaintiff was demanding a performance of a contract with reference to real estate. It appeared that after making the alleged agreement both parties disregarded the agreement and conducted litigation with reference to the subject-matter of the agreement. The court held that, by so conducting the litigation and setting up claims to the property inconsistent with the agreement, both parties had repudiated it, and that neither could thereafter be heard to say that the agreement was in force.

The case of Smith v. Price, 125 Ark. 589, 189 S. W. 167, is directly in point. In that case there was an executory contract by which Price agreed to sell certain lands to Smith. There was a mortgage upon the land which it was necessary to have released before Price could convey good title. Smith purchased the mortgage and foreclosed the same and caused the property to be bought in for his benefit. Price under the law had a right to redeem the property by paying the debt, but Smith refused to permit redemption, and Price brought suit to enforce his right to redeem, which suit was resisted by Smith. The court by its judgment permitted Price to redeem the land. Afterwards Smith brought suit for a specific performance of the contract to convey the land. The court held that Smith by his conduct had repudiated the contract by setting up a claim inconsistent with it, and was therefore not entitled to have it enforced. In this case Whitten-burg, after Groves had refused to perform the contract, made no effort by suit, or otherwise, for a period of about two years to enforce the contract. Instead of insisting upon the contract, if he desired to claim its benefits, Whittenburg purchased an adverse claim to the land, and relying upon such claim brought suit to recover the land from Groves and prosecuted said suit to final judgment. Whittenburg by setting up an adverse title must be held to have abandoned the contract, and therefore had no right to maintain a suit for the specific performance thereof. The very fact that he claimed an adverse title and undertook to assert it was inconsistent with the right which he now claims to have Groves convey the land to him. Plis suit was an assertion that Groves had no title to convey.

The suit instituted by him for the specific performance of the contract, as shown by the record, was filed only one day before the judgment was entered in the trespass to try title case, and it seems to us evident that the filing of the suit for specific performance at this time was but an effort on his: part to escape .the consequences of the judgment against him in the trespass to try title suit, which he probably foresaw. Even after filing the specific performance suit, and after the judgment was rendered against him in the suit of trespáss to try title, Whittenburg made a motion for a new trial in the trespass to try title case and insisted thereon and gave notice of appeal. At the time of the trial of this case the year had not expired during which he was authorized to take said trespass to try title case to the Court of Civil Appeals by writ of error. Thus it appears that Whittenburg had two suits pending at the same time, a judgment in one of which in his favor would be absolutely inconsistent with any judgment which might be rendered in his favor in the other.

We do not think a court of equity should permit a plaintiff to speculate and take his chance of recovery of the title to the land, and after having lost it then claim the benefit of the contract. The evidence, we think, conclusively shows that, if Whitten-burg had been successful in the trespass to try title suit, there would not have been any offer on his part thereafter to take the land under the terms of the contract.

Our conclusion is that under no view of the testimony had Whittenburg a right to a specific performance of the contract.

The case of Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596, Mortgage Co. v. MacDonell, 93 Tex. 398, 55 S. W. 738, and like cases cited by the plaintiff in error, we think, have no application to the facts in this case.

In Moore v. Snowball the question was whether the first suit of trespass to try title to recover the land involved in that suit was a bar to a subsequent suit -to set aside a judicial sale by reason of irregularities and inadequacy of price. The Supreme Court in that case held that the first suit was no bar.

It will be noticed that in Moore v. Snowball no contractual relation existed between the parties, and therefore the question of what constitutes a renunciation or the abandonment of a contract was not involved.

In the case of Mortgage Co. v. MacDonell, the mortgage company had foreclosed a deed of trust by means of a trustee’s sale, and, having purchased the property at such sale, brought suit in trespass to try title. The suit was defeated by MacDonell upon the ground that the sale was a nullity. In a subsequent suit brought by the mortgage company to foreclose the lien of the deed of trust, the defendant, MacDonell, pleaded the former judgment as a bar. The court held that the former suit did not bar the foreclosure suit. This was evidently correct, but this case can have no controlling effect in the case at bar. In the case referred to it is clear that the trespass to try title suit did not involve a repudiation of the lien secured by the deed of trust. In fact, the validity of the deed of trust was necessarily asserted in the first suit, as the title was claimed through an alleged foreclosure of the deed of trust. Therefore there was nothing inconsistent between the attitude of the plaintiff, the mortgage company, in the first and second suits brought by them.

We wish it understood that we do not hold that the judgment in the trespass to try title suit brought by Whittenburg against Groves is res adjudicata, and for that reason barred the prosecution of the suit for specific performance. What we do hold is that Whitten-burg’s attitude was such as conclusively shows a repudiation of the contract by him, and that for this reason he should not be permitted to have it specifically enforced.

The plaintiff in error also contends that Groves, having been first in default by refusing to perform the contract, could not thereafter defend the suit for specific performance on the ground of default oh the part of Whittenburg. This principle, we think, has no application to this case. It is true that, where one of the parties to a contract defaults in the performance of the contract, he cannot set up a subsequent default of the other party to relieve him from liability for his own wrong. This principle might have had application if Whittenburg, after the renunciation of the contract, had brought suit for damages for the breach of the contract and Groves had undertaken to defend the suit upon the ground that Whit-tenburg had also failed to comply with some particular term of the contract. It might also have applied if Groves was defending 'this suit on the ground of some alleged breach of the contract, not involving its repudiation. The facts are that Groves breached and repudiated the contract and Whittenburg accepted the repudiation by Groves and himself renounced it by asserting rights not under the contract or by reason of its breach, but rights inconsistent with any right which could have accrued to him under the contract or by reason of its breach.

The record shows that Whittenburg at this time of the execution of the contract paid $210, and that this sum was deposited in a bank with an agreement that same should be paid to Groves whenever the contract was executed by a conveyance of the land. Whit-tenburg is, of course, entitled to have this sum returned to him.

Our conclusion is that under the undisputed facts plaintiff in error, Whittenburg, is not entitled to a specific performance of the contract. As the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for a new trial, and as the defendant in error, Groves, has not complained of said action of the Court of Civil Appeals, we advise that in our opinion this cause should be remanded to the district court of Carson county for a new trial and for proceedings not inconsistent with this opinion. We think the costs of appeal and writ of error should be taxed against Whit-tenburg.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.
      <SS=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: SONFIELD, J. PHILLIPS, C. J.

text:
    AMERICAN RIO GRANDE LAND & IRRIGATION CO. v. MERCEDES PLANTATION CO.
    (No. 8-2569.)
    (Commission of Appeals of Texas, Section A.
    Feb. 19, 1919.)
    1. Waters and Water Courses <&wkey;2Gl — Irrigation — Contract—Limiting Liability.
    Defendant irrigation company, organized under Rev. St. 1911, art. 5002, cannot by contract limit its liability for failure to furnish water to land adjacent to its canals to an arbitrary amount, regardless of damage.
    2. Waters and Water Courses <&wkey;249 — Irrigation Company — Duty to Supply Water.
    The purpose of permitting incorporation under Rev. St. 1911, art. 5002, is to enable the corporation to furnish water for irrigation to those entitled to the same; and while this can be done by contract, those owning or holding a possessory right or title to land adjoining or .Contiguous to canal are entitled to water at a just and reasonable rate, regardless of contract.
    3. Waters and Water Courses i&wkey;261 — Irrigation — Contract—Limiting Liability.
    Provision of contract of defendant irrigation company, organized under Rev. St. 1911, art. 5002, that it should not be' liable for more than $10 per acre for failure to supply water, was unreasonable and void.
    4. Waters and Water Courses <⅛^249 — Irrigation — Duty to Supply Water.
    Defendant irrigation company, organized under Rev. St. 1911, art. 5002, was, without contract, obligated to deliver water to plaintiff for the purpose of irrigating the latter’s lands adjacent or contiguous to defendant’s canal upon reasonable demand, reasonable terms, and within the ability of defendant to supply the same by the exercise of reasonable diligence.
    6. Waters and Waters Courses <®=»254 — Irrigation — Demand for Water — Sufficiency.
    A notice to defendant irrigation company by plaintiff, entitled to be supplied with water, that it had about 100 acres of cabbage that would need irrigation, was not a due demand for water for a specific tract, as required by the rules of the company.
    6. Waters and Water Courses <§=^254 — Irrigation — Right to Water — Demand.
    Substantial compliance with rule of defendant irrigation company, requiring applications for water to state the number, of acres to be irrigated and the location of the same, was a condition precedent to the right to water. •
    7. Waters and Water Courses <©=263 — Destruction of Crop — Damages.
    The proper basis for determination of damage for loss of crop of cabbage, due to failure to supply water for irrigation, was the value of the yield when matured and ready for sale.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by the Mercedes Plantation Company against the American Rio Grande Land & Irrigation Company. Judgment of-the trial court for plaintiff was affirmed in part and reversed in part by the Court of Civil Appeals (155 S. W. 286), and defendant brings error.
    Judgment of the Court of Civil Appeals reformed, and, as reformed, affirmed.
    Duval West and Frank H. Booth, both of San Antonio, for plaintiff in error.
    James B. Wells and F. W. 'Seabury, both of Brownsville, and Miason Williams,' of San Antonio, for defendant in error.
   SONFIELD, J.

The Mercedes Plantation Company, a corporation, plaintiff, brought this action against the American Rio Grande Land & Irrigation Company, a corporation, defendant, for damages for failure to deliver water for irrigation purposes. The trial was had before the court and resulted in a judgment for the plaintiff in the sum of $35,291. On appeal the Court of Civil Appeals affirmed the judgment of the district court as to certain items of damage aggregating the sum of $20,063.33. The balance of the judgment was reversed and there rendered in favor of defendant.

The record is voluminous, and we refer for a full statement of the pleadings and facts to the statement and opinion of the Court of Civil Appeals. 155 S. W. 286.

Plaintiff sought a recovery of damages for failure to deliver water from June 1, 1907, to December 1, 1908, under a parol contract with defendant; this period being prior to the completion of the canal and plant of defendant. It also sought a recovery for damages accruing from December I, 1908, the date of the completion of defendant’s canal, and upon which date water was actually supplied, to January 19, 1909, at which date a written contract was entered into between plaintiff and defendant. This claim is predicated upon the parol con-' tract and the statutory right asserted by plaintiff to have the land owned by it contiguous to defendant’s canal furnished with water for irrigation. Plaintiff further sought recovery of damages accruing after January 19, 1909, under the written contract.

The Court of Civil Appeals eliminated the ■question of damages accruing prior to the completion of defendant’s canal under the alleged parol contract, and the items recovered by plaintiff were for damages arising subsequent to the completion of defendant’s canal under plaintiff’s statutory right and under the written contract.

Defendant corporation was organized under and in virtue of article 5002, Rev. St. 1911, as an irrigation corporation. It is well settled in this state that a corporation organized under the irrigation act is a quasi public corporation, charged with certain duties to the public by reason of the powers and privileges conferred upon it by the statutes pertaining to irrigation. Borden v. Rice & Irrigation Co., 98 Tex. 494, 86 S. W. II, 107 Am. St. Rep. 640; Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322; Raywood. Co. v. Erp, 105 Tex. 161, 146 S. W. 155.

Counsel for defendant prepared and submitted an argument of great force, wherein it is sought to be maintained that under the facts defendant was not vested with the rights and privileges, or charged with the duties of a quasi public corporation. We have given careful consideration to the argument advanced, but upon an examination of the record, in the light of the findings of fact by the trial court, approved by the Court of Civil Appeals, we are convinced that defendant must be held a quasi public corporation.

The written contract between the parties contains a provision limiting the liability of defendant for its negligence to a sum not exceeding $10 per acre of the land. Defendant insists that plaintiff’s recovery under said contract must be accordingly so limited.

The act, under which defendant is incorporated, confers upon it certain extraordinary rights and powers, and exacts in return therefor certain duties. The business cannot be regarded as a private enterprise. It is affected with a public interest. The evident purpose of permitting incorporation under the irrigation act is to enable such corporations to furnish water for specified purposes to those entitled to receive the same. This can be done under contract between the parties, but if a contract cannot be agreed upon, those owning or holding a possessory right or title to land adjoining or contiguous to the canal are entitled to water at just and reasonable rates, provided there is a supply of water not contracted for. The right of contract is not, however, unlimited. The limitation upon the power to contract is thus stated in Borden v. Rice & Irrigation Co., supra:

“The power to contract, here given to the owner of the plant cannot, if the business is to be regarded as affected with a public interest, he recognized as absolute and uncontrolled. Common carriers and others engaged in public callings have the power to contract, but it cannot be so employed as to absolve them from their duties to the public or to deprive others of their rights. Rights are evidently secured by this statute to those so situated as to be able to avail themselves of the water provided for, and those rights it is the duty of the owners of the contemplated business to respect; and the power to contract, under the well-recognized principles applicable to those charged with such duties, must be exercised in subordination to such duties and rights. Reasonable contracts are what this statute means and not contracts employed as evasions of duty.”

It being tbe duty of defendant under the statute to furnish plaintiff with water for irrigation, it could not by contract limit its liability for negligently failing to furnish same fo an arbitrary amount, regardless of the damage actually suffered. The trial court and the Court of Civil Appeals held this provision unreasonable, and therefore invalid. We concur in such holding. Ray-wood Co. v. Erp, 105 Tex. 161, 146 S. W. 155; Colorado Canal Co. v. McEarland, 50 Tex. Civ. App. 92; 109 S. W. 435.

Plaintiff sought recovery for damages resulting from the failure of defendant to furnish water for the irrigation of 25 acres of land for cabbage; the damages accruing prior to the written contract between the parties. In the trial court plaintiff was awarded the sum of $7,190 for this item of damage, which award was affirmed by the Court of Civil Appeals.

Defendant under the irrigation act, without contract, was obligated to deliver water to plaintiff for the purpose of irrigating its lands adjacent or contiguous to defendant’s canal upon reasonable demand, reasonable terms, and within the ability of defendant to supply same by the exercise of reasonable diligence, unless its water supply was contracted for to others entitled thereto. No defense is made upon the ground of lack of water supply.

The trial court found that due demand for water was made on January 2d to water 5 acres, which demand was repeated on January 4th, and on that date enough water was furnished to irrigate 2 acres (inly. On January 5th plaintiff complained to defendant in writing of the stoppage of water, and notified it that plaintiff had about 100 acres of cabbage needing irrigation from that day forward, and that it must have water every day. No water was furnished from January 4th to January 11th. By reason of such failure, plaintiff was unable to set out such cabbage plants, and had to pull and throw away more than 300,000 plants, and was unable to plant “about” 25 acres of its land which it had intended so to plant therefrom, which land it had thoroughly prepared and had ready for the transplanting of said cabbage, and was forced at a later period to plant same in cotton and corn, which could be grown without irrigation. The amount recovered was the value of the cabbage that would have been produced on said 25 acres had water been furnished, less the expense of setting out, cultivating, irrigating, harvesting, and marketing same/ and less the value of the crop of cotton and com actually raised on said land.

Defendant promulgated certain rules governing the delivery and use of water, among others the following:

“All applications for water must be made in writing oh blanks furnished by the company, and each applicant shall state the number of acres to be irrigated, the location of the same, and the kind of crop to be irrigated, and the day when water is wanted. Every application shall be filed in tbe office of the superintendent or delivered to the ditch tender; but the company shall have five days within which to deliver water after the time specified in the application. This time is provided to insure efficient service,” etc.

It is undisputed that plaintiff was familiar with this rule, and prior to its complaint to defendant of January 5th had used the cards furnished by defendant in its demands for water.

Defendant concedes its liability to plaintiff for failure to furnish water for 3 of the 5 acres, for which water was duly demanded. ■Whether defendant is liable for damages to the additional 22 acres depends upon the question whether the complaint and alleged demand for water for about 100 acres, dated January 5th, was sufficient under the rule of defendant, hereinabove set out.

The complaint and alleged demand of January 5th, addressed to the president of defendant company, reads as follows:

“On January 1st we requested water to irrigate five acres of cabbage, and we received water for about two acres; then the water supply was cut off, leaving us about two hundred thousand cabbage plants pulled, which will be a total loss unless we get water at once.
“We have about one hundred acres of cabbage that need irrigation from now on. And we want water every day.
“Please give us your prompt attention and advise us.”

The rule required that all applications for water should state the number of acres •to be irrigated, and the location of same. Plaintiff’s plantation consisted of some 197½ acres. The location of the acreage, for which water was required, is not stated in the letter, nor is there any manner of description of the same. If there is anything in the record to show just what acreage was intended there is certainly nothing therein to indicate that the 25 acres, for which damages were allowed, formed a part of the tract of “about one hundred acres” mentioned in the letter. The requirement of a description of the acreage or statement of its location was not a mere matter of form, but was deemed necessary, as stated in the rule, “to insure efficient service.” Defendant was required to furnish water for a large acreage contiguous to its cana'l. The nature of the business required promptness and dispatch in furnishing water when demanded, and defendant had the right to insist that the location of the acreage, for which water was desired, should be stated and it not be put to the trouble, expense, and delay incident to a determination of the location of same.

Defendant was obligated to deliver water only upon due demand therefor. A substantial compliance with the above rule, which is not attacked as unreasonable, is a condition precedent to the right to water. In order to recover the value of the crop that would have been raised upon a tract of land, the burden was upon plaintiff to show that due demand was made for water for the specific tract and defendant’s failure to furnish same. We are of opinion that in this plaintiff failed, and can only recover damages for failure to water 3 of the 5 acres, for which due demand had been made. The record disclosing that the damages as found by the court were placed at $179.75 per acre, plaintiff is entitled to a recovery in the sum of $539.25 for this item of its damage.

In the trial court plaintiff recovered the sum of $12,000 .as damages resulting from failure to supply water for the irrigation of 80 acres of cabbage under the written contract of January 19, 1909.

The trial court measured the amount of the market value of the cabbage by the average market value of same from March 8th to June 5th. The Court of Civil Appeals holds that the amount should have been computed on the basis of the average market value from April 27th, the date of the injury, to the close of the season, June 5th, and set aside the judgment of $12,000, rendering the same in favor of plaintiff in the sum of $6,593.33. Defendant contends that the damages should have been based on the average from May 8th to June 5th, because under the evidence the crop would not have matured and been ready for sale prior to May 8th.

The trial court found that had water been furnished seven or eight days after April 20th, there would have been no damage. The undisputed evidence is that the cabbage would not have matured in less than two or three weeks after such irrigation. The value of the yield, when matured and ready for sale, is the proper basis for the determination of the damage. Railway Co. v. Pape, 73 Tex. 501, 11 S. W. 526. The market value prior to May 8th should therefore have been excluded. The record discloses «that the average market value of the cabbage from the 3th day of May to the 5th day of June was $1.71 per hundredweight. The Court of Civil Appeals places plaintiff’s loss at 862,000 pounds. At $1.71 per hundredweight, there would have been a gross loss of $14,740.20; deducting from this amount the cost of marketing, as found by the Court of Civil Appeals in the sum of $8,620, and the cost of harvesting, watering, and cultivating, $2,026.67, leaves a net loss to plaintiff of $4,093.53, and plaintiff is entitled to judgment in said sum in lieu of the sum of $6,593.33 allowed by the Court of Civil Appeals in reversing and rendering the judgment of the trial court.

We find no other errors in the record. We are of opinion that the judgment of the Coúrt of Civil Appeals should be reformed, awarding plaintiff damages in the sum of $539.25 for failure to furnish water for 3 acres of cabbage in lieu of judgment of $7,190 awarded by the trial court and affirm-ed by the Court of Civil Appeals, awarding plaintiff the sum of $4,093.53 for damages for failure to furnish .water to irrigate 80 acres of cabbage in lieu of the judgment of the Court of Civil Appeals of $6,593.33, and awarding plaintiff the sum of $6,280 for damages to 10 acres of cucumbers, being the amount awarded by the trial court and affirmed by the Court of Civil Appeals, making an aggregate judgment in favor of plaintiff ngainst the defendant in the sum of $10,912.7S; and, so reformed, the judgment of the Court of Civil Appeals should be affirmed.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <@3=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SADLER, J. PHILLIPS, C. J. MONTGOMERY, P. J.

text:
    BANK OF SNYDER et al. v. HOWELL et al.
    (No. 30-2667.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Principal and. Surety ⅞=174 — Indemnity — Deposit in Bank — Release of Mortgage.
    Where vendors of land deposited in bank $1,000 of total price paid in cash, to be paid over to them when they should obtain release of mortgage and place it in bank, bank occupied toward buyer position of surety for vendors, and vendors to bank position of indemnitors, they having informed bank release had been obtained, and bank having applied deposit to payment of their note held by it, and refused to pay money to buyer.
    2. Limitation of Actions <®=»56(2) — Statute of Limitations — Accrual of Cause of Action — Action Against Indemnitors.
    Enforceable cause of action did not arise in favor of bank against vendors of land, who had deposited $1,000 of price, to be repaid to them when they should obtain release of mortgage, until” bank parted with its money in obedience to judgment against it in suit of buyer of land to recover special deposit of $1,000, vendors having represented to bank release of mortgage had been obtained, and bank having applied deposit to payment of vendors’ note.
    Error tp Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the Bank of Siiyder and others against Eli Howell and another, resulting in judgment for plaintiffs, which was affirmed as to the unnamed defendant, and reversed as to the named defendant and rendered in his favor by the Court of Civil Appeals (158 S. W. 574), and plaintiffs bring error.
    Judgment of the Court of Civil Appeals, reversing and rendering as to defendant Howell, reversed, and judgment of the trial court affirmed on recommendation of the Commission of Appeals.
    Douglas Cater, of San Antonio, and Bryan . F. Williams, of Galveston, for plaintiffs in error. Mangum & Townsend, of San Antonio, for defendants in error.
   SADLER, J.

Howell & McCue, as partners, were the owners of a tract of land in Oklahoma, near Snyder, against which there existed a mortgage securing an indebtedness of $1,000, due by Howell & McCue, and held by 2Etna Life Insurance Company. They were and had been doing business with the Bank of Snyder, Okl., carrying in said bank a general and a special account.

In 1906, tliis condition existing, they sold to E. A. Patterson a tract of land for $3,200, obligating themselves to pay off and obtain release of the mortgage debt against the land. Deed was made to Patterson, and' he paid all of the consideration in cash, $1,000 of which amount was December 20, 1906, placed by Howell & McCue to their special deposit account in the Snyder bank, under a written contract filed in the bank authorizing it to pay over the sum to Howell & Mc-Cue when they should have obtained release for the mortgage and placed same in the bank. The contract provided that the release should be obtained within 30 days or within a reasonable time thereafter.

Howell & McCue became indebted February 21, 1907, to the bank on a note for $1,000. Some time during the summer of 1907, the $1,000 note held by the bank being past due, its president sought its collection. He approached Howell, and asked him with reference to the special deposit and whether it might be applied to the payment of the note. Howell informed him that the release had been obtained; that the matter had been closed up long ago, and that there was no objection to applying the deposit to the note. After a conference with McCue, who also informed the president of the bank that the $1,000 belonged to the firm, the deposit, either by check of Howell & McCue or by consent and acquiescence, was applied to the payment of the note held by the bank, the note marked paid and delivered to Howell & McCue.

Shortly thereafter Patterson called upon the bank and notified it that the release had not been obtained, that the mortgage debt had not been paid, and demanded the $1,000 special deposit. This the bank refused to pay, advising Patterson of the claim of Howell & McCue, and that it had under their direction applied the proceeds of the deposit to the payment of the note held by it.

On conference with McCue, who was acting for Howell & McCue, as well as on conference with Howell, they insisted that the bank contest the claim of Patterson to the $1,000 special deposit. The bank fought the Patterson suit to a final determination, and paid, in satisfaction of the judgment obtained against it by Patterson, $1,273, this payment having been made the 1st day of January, 1911.

A short time afterwards this suit was filed in the district court of Bexar county by the bank against Howell & McCue to recover the amount of money which it had paid in satisfaction of the Patterson judgment. While the evidence is conflicting on the above facts, yet the findings of the jury and of the Court of Civil Appeals are in accordance with the statement made above.

In the suit McCue did not answer. Howell, among other answers, pleaded the bar of the two and four years statutes of limitation. A trial in the district court resulted in a verdict in favor of the bank against the defendants for $1,273, with interest thereon at 6 per cent, from January 1, 1911. Erom that judgment an appeal was had to the Court of Civil Appeals by Howell alone. The Judgment of the lower court as to McCue was affirmed, and as to Howell reversed and rendered in his favor (158 S. W. 574); the Court of Civil Appeals holding that the suit was one arising out of fraud and debt, and that the claim of the bank against Howell was barred, the cause of action in favor of the bank against Howell accruing more than two years prior to the commencement of the suit in the district court of Bexar county.

Writ of error was granted by the Supreme Court (170 S. W. xx) in the view that the bank suit against Howell & McCue was one arising out of indemnity, and that the statute of limitation did not begin to run, the cause of action not accruing until the bank paid the Patterson judgment. Under this state of the record, the only question we have for consideration is as to the correctness of the holding by the Court of Civil Appeals that the cause of action was founded in fraud and debt arising therefrom rather than in indemnity.

Opinion.

In order to determine the rights involved in this case, it is necessary, first, to ascertain whether the Court of Civil Appeals correctly applied the substantive law determining the character of action arising on the pleadings and evidence in favor of the plaintiff.

The Court of Civil Appeals reaches the following conclusion with reference to the law applicable to the cause of action:

“This suit was brought upon the theory that appellee’s cause of action accrued at the time it actually paid the judgment of Patterson, and that its action was one for indemnity, and not of debt. But that is not the law. It is well settled in this state that, in cases where one has been caused to suffer loss by reason of the deceit or fraud of another, the cause of action thereon accrues at the time the deceit or fraud is discovered, or when it should have been discovered by the use of ordinary diligence on the part of the one damaged, and limitation begins to run against such cause of action at that time.”

It further concludes:

“Therefore, when appellee on April 15, 1908, discovered that the representations made by Howell & McCue, upon which it surrendered their note, were false, and that the release provided for in the escrow agreement had not been procured by them, two recourses, were open to them: They had the right to sue Howell & McCue upon the original note, or to bring an action against them for damages for deceit. In the former alternative the statute of limitation would have been four years from the maturity of the note, and in the latter it would have been two years after the date of discovery of the fraud. The bank elected to pursue neither of these courses, but defended the action of Patterson until final judgment, and after paying the judgment against it sued Howell & McCue for indemnity of their loss. When it finally filed its suit on September 12, 1911, the bar of the four-year statute of limitation was perfected against the note, and that of the two-year statute against its action for deceit.”

If the Court of Civil Appeals is correct in its conclusion with reference to .the legal character of plaintiff’s cause of action — the basis of its right of recovery — then its finding that the bar of the statute of limitation precluded plaintiff’s recovery against Howell is correct. However, if plaintiff’s cause of action and right of recovery arises out of indemnity, the bar of the statute is not applicable, since plaintiff’s suit was filed in ample time to prevent the running of the statute. City of San Antonio v. Talerico et al., 98 Tex. 151, 81 S. W. 518.

To assist in the solution of this question, it is proper to analyze the relationship of the parties as disclosed by the evidence. At the time of the transaction between Howell & McCue and Patterson, the obligation rested upon Howell & McCue to procure the release of the mortgage lien debt then existing against the land sold to Patterson. This was not only the indebtedness of Howell & McCue originally, but they were under the further contractual obligation with Patterson to procure the release of this indebtedness, which carried with it the obligation of payment of the debt, if such should be necessary, as a condition to obtaining the release.

At the time the $1,000 was placed as special deposit with the bank, this contractual relationship existed between Patterson and Howell & McCue. The deposit was a security to Patterson guaranteeing the faithful performance of the contractual obligation resting upon Howell & McCue. The bank, as a depository, was under the obligation to Howell & McCue on the one part to pay over the $1,000 upon the procurement of the release of the mortgage debt, and on the other part to hold the indemnification for the benefit of Patterson.

With reference to the note that the bank held against Howell & McCue, these parties were under contractual obligations to pay this note at its maturity and in accordance with its terms. After the maturity of the note held by. the'bank, acting upon the representations and assurances of Howell & Mc-Cue that they had performed their contractual obligation to Patterson, and that they were the owners of and entitled to the special deposit with their authority or acquiescence, the bank applied the special deposit upon the contractual indebtedness held by it against them, canceled it, and delivered it to them.

At this time what was the status of the parties? What legal obligations rested upon each? The bank under the escrow agreement was obligated to do one of two things in relation to the rights of Patterson — either to replace the $1,000 to the special deposit Recount, or to perform the contractual obligation of Howell & McOue with reference to the release of the lien indebtedness to the extent of $1,000 in the event that release had not been obtained.

The release had not been obtained, the lien indebtedness had not been satisfied by Howell & McCue or for their account. It, therefore, became necessary, in order for the bank to carry out and perform the obligation resting upon it, to return to the special deposit account and hold for Patterson the $1,000, or to pay whatever sum might be necessary, not exceeding $1,000, to satisfy the lien indebtedness against the land which Patterson had purchased, and to perform the obligation resting upon Howell & McCue. Patterson had the right to demand one or the other of these acts on the part of the bank. Upon Patterson’s demand being made, the bank sought to ascertain the facts, and Howell & McCue insisted that they had performed their contract with Patterson, and that the special deposit was their property and belonged to them, and that they were authorized to apply it to the payment of the note held by the bank.

Under this state of facts the bank was presented with the determination of two courses affecting its rights: One to rely upon the statement of Howell & McCue and refuse to accede to Patterson’s demand; the other to give credence to Patterson’s claim, and then seek a recovery against Howell & McCue on the note, since if the bank, at Howell & McCue’s instance, had misinterpreted the facts, and wrongly appropriated the special deposit to the payment of the note under a misrepresentation on the part of the makers of the note, there was no payment, and the obligation created by the note still existed, although the evidence of the obligation had been surrendered to the makers. The bank relied upon the representation of Howell & McCue and retained the money paid.

Under this state of the record, Patterson had no claim against Howell & McOue, if the lien indebtedness was in fact paid, unless, perhaps, it may have been such small expense as might have been incurred in obtaining the release. The only theory upon which Patterson could sustain his claim to the special deposit arose on account of the fact that it required the amount of the special deposit, or more, to satisfy the lien indebtedness and to obtain the release necessary to clear the title to his land.

' Patterson had the right to have brought a suit against Howell & McCue to recover from them the amount of money which he may have had to pay in order to relieve the indebtedness against the land, the payment of which was the primary liability of Howell & McCue. •>

The transaction between Howell & McCue and the bank, whereby the special deposit was applied to their indebtedness, also gave to Patterson the right to demand of the bank as much of the special deposit as was requisite to hold him harmless for the default of Howell & McCue. He elected to pursue this remedy. Under this state of the record, it is believed that the bank occupied toward Patterson the position of a surety for Howell & McCue, and Howell & McCue to the bank that of indemnitors. Such being the relationship, a right may have existed in behalf of the bank against Howell & McCue, under the facts, at the time that Patterson made his demand on the bank, but it had not ripened into an enforceable demand. The amount of recovery could not be known until the rights of Patterson, as against the surety and indemnitee, should be determined and definitely fixed. Bank v. Wallace (Civ. App.) 161 S. W. 957; Livingston & Co. v. Philley, 155 Ky. 224, 159 S. W. 665. In the suit which Patterson brought against the bank, it is manifest that the bank was treated as a surety, since the allegations appear in the petition filed in* Oklahoma in the suit of Patterson against the bank, excusing the failure to make Howell & McCue parties by alleging and showing that they were insolvent and were beyond the jurisdiction of that court, being in other states.

The suit against the surety was carried to a termination, and resulted in fixing the liability of the bank for the obligation of its principals by the solemn decree of the court, which liability was met by the payment of the judgment. During the time of pendency of this litigation in Oklahoma, the primary obligation rested upon Howell & McCue to pay the necessary indebtedness secured by the mortgage lien and to protect Patterson from loss or damage. Hence, as to Patterson, the real obligation that rested upon Howell & McCue was that of indemnitors; they being obligated under their contract to protect him from liability on account of the lien existing against the land which they had sold to him. Also, during this time, the obligation rested upon Howell & McCue to protect their surety and indemni-tee from liability for such amount as it might have to pay in order to meet the obligation resting upon them in favor of Patterson.

It may be conceded, for the purposes of this opinion, that Howell & McOue were guilty of fraud in the. transaction wherein the bank accepted the special deposit in payment of their note to it. This fraud simply brought about a condition out of which arose the relationship of the parties; of the bank to Patterson, and the implied contract of indemnity of Howell & McOue to protect the bank from liability to Patterson by reason of the application of the special deposit to the payment of the note held by it. 22 Oye. 95. In our yiew, it is immaterial upon the question as to whether Howell & McOue acted fraudulently in procuring the application of the special deposit to their debt' to the bank. The rights of the parties would be the same if they had directed the payment under an honest belief of right to do so, although mistaken therein.

It is therefore our opinion that, under the state of the record, an enforceable cause of action did not arise until the bank parted with its money in obedience to the judgment rendered against it. In other words, that, although the right may have existed in favor of the bank to demand recoupment of Howell & McOue from the time of the appropriation of the special deposit to the payment of the note held by the bank, yet this right did not ripen into a mature obligation until a fixed damage had accrued; that is, until the actual payment by the bank of the amount of the judgment rendered in favor of Patterson against it.

If we are not in error in our conclusions with reference to the relationship of the parties — and we are convinced that we are correct in our position — then the basis of this suit arises out of indemnity, and the rules of law applied to the rights of the parties are those rules which are applicable in matters of indemnification. Such .being our conclusion, we are of the opinion that the Court of Civil Appeals erred in their application of the law to the facts presented in this record, and therefore that the bar of the statute of limitation cannot avail Howell.

We are therefore of the opinion that the judgment of the Court of Civil Appeals, wherein it reversed and rendered as to Howell the judgment of the district court, should be reversed, and that the judgment of the district court should be affirmed.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

MONTGOMERY, P. J.

(concurring). The writer, after carefully considering the opinion prepared by Judge SADLER, in this case, agrees to the disposition made of the case, and will briefly state the reasons therefor. The evidence was sufficient, in the opinion of the writer, to authorize the finding of the following facts, and, in support of the judgment of the district court, we are authorized to assume that such facts were found, viz.: That the Bank of Snyder, at the request or direction of Howell & McCue, appropriated the special deposit to the payment of a debt of Howell & McCue due to the bank; that the bank acted innocently, relying upon the representation of Howell & McCue that the release provided for in the contract between Patterson and Howell & McCue had been obtained; and that when the fund was claimed by Patterson that Howell & McOue in effect advised the bank to defend the suit brought by Patterson, and consulted with the bank as to what defenses should be presented.

Under these circumstances, the writer thinks there was an implied agreement that, if the suit was lost, Howell & McCue would indemnify the bank.

“When an act has been done by the plaintiff under the express directions of defendant, which occasions an injury to the rights of third persons, defendant will be bound to indemnify plaintiff against the consequences of the act, provided such act is not apparently illegal in itself, and is done honestly and bona fide in compliance with defendant’s directions.” 22 Cyc. p. 95.

We think the principle announced above applicable to this case. The bank held the $1,000 deposit subject to the terms of the contract between Howell & McCue and Patterson. It was its duty to hold the fund until Howell & McCue had performed their agreement to obtain the release. Howell & McCue represented to the bank that the release had been obtained, and directed the bank to apply the deposit to the payment of Howell & McOue’s debt. Under these circumstances, the law implied an agreement on the part of Howell & McCue to indemnify the bank against the claim of Patterson to the fund.

When the bank was compelled to pay the judgment obtained by Patterson, it, for the first time, had a cause of action based on the implied contract of indemnity, and therefore the cause of action was not barred by limitation when this suit was brought. Ample authority is cited in the opinion of Judge SADLER to support the last proposition. The writer thinks it necessary, in order to indicate clearly the reasons for his concurrence in the disposition of this case, to furnish the foregoing memorandum of his views.
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