author: BROWN, C. J.

text:
    O’NEAL et al. v. BUSH & TILLAR.
    (No. 2368.)
    (Supreme Court of Texas.
    Feb. 24, 1915.)
    1. Vendor and Purchaser <§=>95 — Rights oe Parties — Right oe Vendor to Rescind— Retention oe Liquidated Damages.
    Where sellers of real estate received from the purchasers a deposit of $10,009 to be retained as liquidated damages in case of noncon-summation of the sale and payment of price, and retained same on breach by purchasers, such sellers thereby lost their right to rescind the contract for such breach.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 158-160; Dec. Dig. <§=>95.]
    2. Vendor and Purchaser <§==>95 — Rights oe Parties — Waiver bt Vendor oe Right to Rescind.
    Where vendors of real estate, upon failure of the purchasers to pay an agreed installment of the price, agreed to act as agents of the purchasers in attempting- to sell the land to other persons, they thereby waived their right under the original contract to retain $10,000, paid thereunder as liquidated damages in ease of breach, as well as their right to forfeit the buyers’ interest in the original contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 158-160; Dec. Dig. <§=>95.J
    3. Vendor and Purchaser <§=>208 — Rights oe Parties — Conveyance by Vendor — Vendors as Agents eor Purchasers — Duty of Agent.
    Where vendors of real property undertook to negotiate a sale from the purchasers to third persons at the same price as the original contract specified, they thereby became such agents of the buyers as to bring them within the rule of law forbidding appropriation by an agent of the benefits and profits of the agency to the loss of his principal, and so could not declare a forfeiture of the original contract for nonpayment of price and sell for their own benefit.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 424; Dec. Dig. <§=> 208.]
    4. Vendor and Purchaser <§=>208 — Rights oe Parties — Conveyance oe Equitable Title by Holder oe Legal Title.
    The vendor of land with a reservation of lien to secure purchase money holds the legal title thereto, and may pass the purchaser’s equitable title with the latter’s consent .by conveyance of his own legal title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 424; Dec. Dig. <§=> 208.]
    5. Action <§=>32 — Forms oe Action — Statute —Form oe Judgment.
    There are no forms of action in this state, all suits being conducted by petition and answer under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1826, 1827, and, where the allegations of the petition are sufficient, the court may render such judgment as will meet them.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 257-261, 316; Dec. Dig. <§=>32.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by E. V. O’Neal and others against Bush & Tillar. Judgment for plaintiffs for $25,000 was reversed and remanded by the Court of Civil Appeals (140 S. W. 242), and plaintiffs bring error.
    Reversed, and judgment of the district court affirmed.
    Capps, Cantey, Hanger & Short, of Ft. Worth, for plaintiffs in error. Flournoy, Smith & Storer, of Ft. Worth, for defendants in error.
   BROWN, C. J.

We copy the following statement of facts from the opinion of the Court of Civil Appeals:

“Appellants owned about 50,000 acres of land in Scurry and other counties, which they contracted to sell to appellees. The contract was entered into on October 27, 1906, and was evidenced by a writing of that date. The price to be paid by appellees for the land was $6.50 per acre. They paid $10,000 on the purchase price at the time the contract was executed. By the terms of the contract, $15,000' of the part remaining unpaid of the purchase price was to be paid May 11, 19Ó7, and the remainder thereof at later dates. It was stipulated that, in the event appellees should violate any of the terms and conditions of the contract and ‘fail to perfect, consummate and carry out’ same, the $10,-000 paid by them should not be ‘considered or become- a partial payment upon the lands,’ but should be ‘received, held and kept’ by appellants as liquidated damages. The $15,000 due by ap-pellees May 11, 1907, was not paid by them then nor afterwards. On that day appellant Tillar and his attorney and appellees Baker, J. P. O’Neal, and W. B. O’Neal had a conference in Mineral Wells. The testimony as to what, then occurred was conflicting. That on the part of appellants was that Tillar then demanded payment of the $15,000, and, appellees refusing to pay, that he declared their rights under the contract to have been thereby forfeited. That on the part of ap-pellees was that payment of the $15,000 was waived by ¡Tillar, and that he agreed to go to Kansas City and act for them in closing a deal they claimed they had pending there with one Allen and one Rule, subject to an arrangement with Tillar as to certain details not specified in the testimony, whereby Allen and Rule were to assume their contract with appellants and pay them (appellees) the sum of $25,000. As a result of the conference, on the Monday following said Saturday, Tillar and Baker and J. B. O’Neal did go to Kansas Oity, where negotiations between Tillar and Allen and Rule were carried on, resulting in the consummation on May 22d of a contract between Tillar and Allen and Rule, whereby appellants sold the land to Allen and Rule, and agreed to convey same to Allen, for $6.50 per acre, the price appellees had agreed to pay for it, and $15,000. Appel-lees claimed that it was understood and agreed between themselves and Tillar that they should own all in excess of $6.50 per acre Allen and Rule might agree to pay for the land, that Til-lar in negotiating and consummating the sale to Allen and Rule acted for them as well as for appellants, and that they were entitled to demand and receive of appellants as their own the excess over $6.50 per acre realized by appellants as a result of the sale to Allen and Rule. Their suit against appellants was commenced and prosecuted on this theory. Appellants denied the existence of such an understanding and agreement, and, among other things, claimed that appellees were advised by Tillar, two days before he consummated the sale to Allen and Rule, that he denied their right to any of the proceeds of the sale he was negotiating, and would refuse to account to them for any part of such proceeds. The sale by appellants to Allen and Rule was entirely on a credit — the purchase price being represented by Allen’s promissory notes secured — except $15,000 thereof (by a vendor’s lien on the land), and nart of them, including said $15,000, being further secured by the guaranty of Rule and a pledge of certain life insurance policies issued to him. The $15,000 referred to as not secured by a vendor’s lien was represented by notes in favor of appellee R. B. Pyron, who claimed same was paid to him by appellants on account of an indebtedness they owed to him as the result of other transactions between them. Appellants, however, claimed the $15,000 was paid to Pyron as a commission for his services in connection with the sale made to Allen and Rule. Appellees’ suit was to recover the $10,000 paid by them to appellants at the time the contract of October 27, 1906, was entered into, and the excess over $6.50 per acre in addition to said $10,000 received by appellants on account of the sale to Allen and Rule. They obtained a judgment against appellants for the sum of $25,000 and interest thereon from May 11, 1907.”

The Court of Civil Appeals made a very clear statement of the facts of this case, and pronounced a judgment which was sustained both by the findings of the jury and by the law, whereby they affirmed the judgment of the district court. Subsequently, upon a motion for rehearing, they set their former judgment aside, and entered judgment reversing and remanding the case to the district court for another trial.

It will be necessary, in a brief way, to review the facts as they are presented in the first opinion of the Court of Civil Appeals. The contract, as it is stated in the opinion of the Court of Civil Appeals, between Bush and Tillar and the two O’Neals and Pyron, was to the effect that the $10,000 which was paid by Pyron and his partners on the purchase of the land should not be entered as a credit upon the purchase price, but should be appropriated as damages for the failure to comply with the contract. This contract provided what should be the penalty of a failure to comply, and made the forfeiture of the $10,000, if it should occur, the compensation for a failure to make the payment in accordance with the contract.

We are of opinion that this had the effect to deprive Bush and Tillar of the right to rescind the contract for the sale of the land. They .provided their remedy by the appropriation of the $10,000 as damages for the failure of Pyron and the O’Neals to perform the terms of the contract. They could not have damages for the failure to perform the terms of the contract, and at the same time destroy -that contract.

If Bush and Tillar had the right to dis-affirm the contract or set it aside on the failure to pay the $15,000 as agreed to, and if, when the parties met and the matter was discussed among them, they agreed upon a different procedure, whereby Bush and Tillar undertook for their debtors to carry out a transaction which the latter had made with other parties in Kansas City, then, we think, there can he no controversy that, by accepting such agency and agreeing to act with the Kansas City parties as substitutes for Pyron and his partners, Bush and Tillar waived their right of forfeiture altogether.

Pyron and his associates, anticipating the failure to be able to meet the contract, had made an agreement with certain parties in Kansas. City, whereby it was agreed that those parties should take the land that Pyron and the O’Neals had bought from Bush and Tillar, and be substituted in the place of Py-ron and the O’Neals, assuming their indebtedness to Bush and Tillar and taking the benefits of the contract between Bush and Tillar and the O’Neals and Pyron.

This was explained to Bush and Tillar at their conference, and it was agreed by the parties that Bush and Tillar would accept the substitution of these parties for Pyron and his partners. By this agreement Bush and Tillar certainly became the agents of Pyron and the O’Neals for the accomplishment of this purpose. Bush and Tillar held the legal title to the land in themselves, and they had the power to convey that title at the request of the owner of the equitable title, and they undertook to do just what the law authorized them to do, that is, by agreement of the owner of the equitable title one who holds the legal title can convey it, and invest the legal and equitable title in his vendee.

It is a well-settled rule, to which there is no exception, that one who undertakes to act as agent or trustee for another cannot appropriate the benefits of such transaction to himself. On the other hand, he must give to the principal for whom he acts the benefits and advantages, and if he appropriates the same he is liable to the principal, who may recover the thing appropriated or damages sustained by the act.

We can see no room for argument or discussion of this case as to the wrongful act of Bush and Tillar in appropriating to themselves the interest of Pyron and the O’Neals, consummating in their own names the identical transaction which they assumed and undertook to complete in the name of and for the benefit of Pyron and the O’Neals. We know of no authority in law or equity that will sustain any such action by an agent. Good faith on the part of the agent must be observed, and any violation of it will subject him to an action by the principal in order to adjust the rights between them. Such agent must answer to his principal fairly, truly, and justly. Messer-Moore Ins. Co. et al. v. Trotwood Park Land Co., 170 Ala. 473, 53 South. 228, Ann. Cas. 1912D, 718.

“The relation of an agent to his principal is ordinarily that of a fiduciary, and as such it is his duty to act with entire good faith and loyalty for the furtherance and advancement of the interests of his principal in all dealing's concerning or affecting the subject-matter of his agency, and if he fails to do so he is responsible to his principal for any loss resulting therefrom, or the principal may repudiate the acts of the agent and recover back any money or property paid him, less the agent’s proper charges and compensation; and an agent who has defrauded his principal cannot set up the negligence of such principal as a defense to an action for an accounting.” 31 Cyc. p. 1430.

The facts found by the court of civil appeals show a gross fraud by Tillar and Bush in appropriating to their own benefit the transaction with Rule and Allen, when they had agreed to consummate it for the benefit of Pyron and the O’Neals. The Court of Civil Appeals affirmed the judgment of the district court which was in favor of the plaintiffs in error here, but upon motion for rehearing they set aside that judgment for a very peculiar reason.

The court seems to hold that Bush and Tillar, who held the legal title to the land, could not by the consent and at the direction of Pyron and the O’Neals pass the equitable title to the purchasers in Kansas City. They did not cite any authority for that proposition, and we have not been able to find any that tends to support that position. It is unquestionably true that, as a matter of law, the vendor of land with a reservation of lien for the purchase money holds the legal title, and, on failure of the vendee to pay, the vendor may revoke the sale and resume.the equitable as well as the legal title. The writer has not been able to find authority to support the proposition that one who holds the legal title cannot, by consent of the holder of the equitable, pass the equitable by the conveyance of the legal title. The legal title is paramount to the equitable title under such circumstances.

There can be no reasonable doubt about the proposition that, with the consent of the cestui que trust the vendor, in this case the trustee, might convey the whole right, legal and equitable, to the agreed purchaser, and the Court of Civil Appeals erred in setting the judgment aside.

We have no forms of action in this state, but every suit is conducted by petition and answer. Articles 1826 and 1827, Vernon’s Sayles’ Civil Statutes; Carter v. Wallace, 2 Tex. 206.

When the allegations of the petition are sufficient, the court will render such judgment as will meet the requirements of the allegations in the petition, without regard to the form of action. If the party is entitled to damages and alleges facts which entitle him to damages, the court will give Mm damages. If a party alleges facts which entitle him to rescission, the court will give him rescission. If a party is entitled to an enforcement of a contract, the court will find in his favor to enforce it, without regard to the forms of action in the trial court, and will administer justice according to the allegations in the petition and briefs which are presented.

It is therefore ordered that the judgment of the Court of Civil Appeals upon rehearing, by which it set aside its former judgment and rendered judgment in favor of the appellants in this case, be and the same is hereby set aside and held for naught. And it appearing that the first judgment of.the Court of Civil Appeals was by that court set aside on a question of procedure, it is ordered that the judgment of the district court be affirmed.

Judgment of district court affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, J.

license: Public Domain

text:
    HENNESSY et al. v. BLAIR.
    (No. 2367.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    1. Vendor and Purchaser @=5239 — Bona Fide Purchasers.
    Generally, the equity of an innocent purchaser cannot be asserted without the ownership of a legal title, but a bona fide purchase for value and without notice of what constitutes the legal title is a defense to a suit to enforce a paramount equitable title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dee. Dig. @=5239.]
    2. Public Lands @=>176 — Patents.
    The state is the source of title, and a patent issued under its authority, regular on its face, confers legal title.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. @=>176.]

      3. Public Lands <@^176 — Patents — Issuance.
    Where the officers of the state issued a patent on a forged assignment of an unlocated land certificate, their erroneous action is, at most, only voidable.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. @=3176.]
    4. Public Lands (§ 174*) — 'Certificates—Assignments.
    An unlocated certificate for public lands may be assigned.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 552-554; Dec. [Dig. @=>174.]
    5. Public Lands @=>176 — Bona Fide Purchaser — “Title.”
    A transfer of a certificate for public land was forged, but the transferee obtained a patent from the state, and then conveyed the land to a third person without actual notice of the fraud. There was nothing on the face of the patent or in the record of the land office giving notice that the patent was fraudulently obtained. An inquiry would have disclosed a holding by the patentee and his grantees for many years during which there was no claim, but Ownership by the holder of the certificate or his heirs. Held that, as under doctrine of bona fide purchase the patent constituted “title,” the rights of the bona fide purchaser could not be overthrown by the heirs of the owners of the certificate.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dec. Dig. @=>176.
    For other definitions, see Words and Phrases, First and Second Series, Title.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by T. D. I-Iennessy against J. M. Blair, in which. P. A. Newport and others intervened. A judgment for plaintiff and interveners was reversed by the Court of Civil Appeals (138 S. W. 1076), and plaintiff and interveners bring error.
    Affirmed.
    John G. Tod, of Houston, and Wm. Watson, of Centerville, for plaintiffs in error. Tharp & Whitehead, of Houston, and J. M. Chatham, of Centerville, for defendant in error.
   PHILLIPS, J.

The question presented for decision by the present case is whether, in an action for land one holding the title by regular chain of transfer under the patent of the state, acquired for value in good faith and without notice of any defect, is to be denied the status of an innocent purchaser because of the forgery of the assignment of the land certificate upon which the patent issued.

Briefly stated, the facts are as follows:

The board of land commissioners of Brazo-ria county, some time prior to the year 1839, issued to Lucius Hibbard a certificate for one-third of a league of land. A transfer of this certificate to Tapley W. Bennett, purporting to have been executed on May 16, ÍS44, is on file in the land office. A patent to the land was. issued to Bennett as assignee of Hibbard on October 8, 1845. The assignment of the certificate was a forgery; Hib-bard having died in 1839. On the same date the assignment purports to have been executed Bennett conveyed an undivided one-third interest in the one-third of a league to Alexander Patrick for his services in locating the certificate. The land was partitioned between Bennett and Patrick by a judgment of the district court of Harris county in 1875. Bennett and Patrick and their vendees have continuously claimed the land, paid the taxes upon it, and exercised ownership over it. J. M. Blair, the defendant in error, holds 924 acres under the Bennett title, and 251 acres under the Patrick title; these two tracts comprising the land in controversy. He purchased without any notice of the claim of the appellees, paying the sum of $3,400, in good faith believing that he was acquiring the title. No claim to the land was ever asserted by the heirs of Lucius Hibbard until April 11, 1904, when two of his heirs by deed conveyed their interest to Hennessy, one of the plaintiffs in error. Blair purchased before the record of this deed. The land was not located by Hibbard under the certificate, but by Patrick, for Bennett, as assignee. The recitals of the patent issued to Bennett afforded no notice of any vice in the assignment of the certificate, and contained nothing that would suggest inquiry respecting its validity. There has not been sufficient occupancy and use of the land to perfect in Blair title by limitation.

The suit was instituted by Hennessy. Heirs of Lucinda Hibbard, a sister of Lucius Hibbard, intervened. In the trial court judgment was rendered in favor of Hennessy for an undivided two-thirds interest in the land, and in favor of the interveners for an undivided two-fifths interest of the remaining one-third. This was reversed, and judgment rendered for Blair by the honorable Court of Civil Appeals.

As a rule, the equity of an innocent purchaser is incapable of assertion without the ownership of the legal- title. York’s Adm’r v. McNutt, 16 Tex. 13, 67 Am. Dec. 607; National Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S. W. 979. But the bona fide purchase for value and without notice of what constitutes the legal title is a perfect defense in equity to any suit which seeks to enforce a paramount equitable title or interest. Pomeroy’s Eq. Jur. § 767. It has been held a perfect defense in suits by the government to set aside patents to lands which had been procured through fraud. United States v. Stinson, 197 U. S. 200, 25 Sup. Ct. 426, 49 L. Ed. 724; Colorado Coal & Iron Co. v. United States, 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182.

Whether, therefore, this defense was available to Blair depends, it seems to us, upon the legal effect of the patent issued to Bennett, as influenced by the admitted fact of the forgery of the assignment of the certificate upon which it was founded, since plainly lie occupied the position of a purchaser for value in good faith of whatever interest Bennett acquired, under a regular and duly recorded chain of transfer, without notice of the adverse claim. If, notwithstanding the forgery of the assignment, the patent issued by the state carried the legal title to the land, as the holder of such title the equity of an innocent purchaser should protect him. If, because of the forgery of the assignment, the patent was ineffectual to confer the legal title, he is without a defense.

As used in respect to bona fide purchasers, the word “title” has no reference to what may be the real beneficial interest of the vendor as disclosed by extrinsic proof. It has relation merely to what constitutes the evidence of his right. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909. As is clearly explained in that ease, if this were not so, there could be no instance of an innocent purchase unless the vendor were, in fact, invested with the beneficial interest. As used in this sense, therefore, “title” does not mean the beneficial interest in the property conveyed. It means such written evidence as under the laws of the state confers upon the vendor the legal estate in the land. Nothing else appearing, this constitutes a legal title in the vendor — the apparent title, ujjou which the good-faith purchaser may rely, though, as between himself and others, the vendor may have no actuai right to the land. “The question is not one of real beneficial ownership or of superior right, but of apparent ownership evidenced as the law requires ownership to be.” Id.

With us the state is the source of title. The patent issued under its authority is the record of its title. It evidences the apparent ownership of the title as the law requires. If the authority for its issuance exists, and it be regular on its face, there can be no doubt, therefore, of its conferring “the legal title” to the land in the full sense of that term as used in reference to bona fide purchasers. Because of the faith and credit it carries as a muniment of title, subsequent bona fide purchasers for value, without actual notice, are not chargeable with constructive notice of latent defects in the transfer of the certificate upon which it issued, where it is issued under authority, and its recitals afford no notice of them and suggest no inquiry which would reveal them. Wimberly v. Pabst, 55 Tex. 587; Durst v. Daugherty, 81 Tex. 650, 17 S. W. 388.

The patent issued to Bennett being regular upon its face, and carrying no notice of the forgery of the assignment of the certificate, and there being nothing in its recitals to suggest inquiry, the question hero involved is reduced to that of the validity of the patent. If it was not rendered void by the forgery of the assignment, but upon that account was merely voidable, it clearly passed the legal title to the land as between the state, the source of title, and Bennett, the patentee; and upon such evidence of apparent ownership Blair was entitled to rely in making his purchase. The forgery of the assignment of the certificate did not invalidate the patent; its effect was only to render it voidable. League v. Rogan, 59 Tex. 427. The certificate constituted a legal claim for the one-tliird of a league of land for which it called: It was located, not by Hibbard, but for Bennett by Patrick. Until located it was only personal property in Hibbard’s hands, and conferred no title to land. The patent was issued under the authority of law, by officers empowered to issue it and to pass upon the sufficiency of the transfer of the certificate as the predicate for its issuance. With the officers of the state invested with the power to act in the issuance of the patent, their erroneous action was not void, but, at most, only voidable.

As said by Judge Stayton in League v. Rogan:

“The patent under which the appellees claim is regular in form, issued by officers empowered to issue patents, and upon a valid claim against the state for land; and neither the forgery of a remote transfer of the certificate upon which it issued, nor the failure of the commissioner tc detect that forgery, can render it void. * * * Here the patent passed the legal title to the per son under whom the appellees hold by regula* chain of transfer, and the vice in the title, if there be one, lies back of the patent, which is the sole source, in this case, of legal, as distinguished from equitable or imperfect, title, and even of that vice it does not appear that the patentee or those holding under him had any notice, which would not be important upon the question of limitation.”

In that case the question was whether a patent issued on a forged assignment of the certificate carried such title as would support limitation under the three-year statute. The patent there was held, not to have been void, but effectual to pass to the patentee the naked legal title to the land, which was all the state had to convey at the time the patent issued. Like effect cannot, therefore, be denied this patent. Blair being an innocent purchaser for value of the legal title which the patent carried, the paramount title in the Hibbard heirs is not enforceable in equity against him.

Among the authorities relied on by the plaintiffs in error is Brush v. Ware, 15 Pet. 93, 10 L. Ed. 672. But it is there disclosed, as was pointed out in the discussion of that case in Wimberly v. Pabst, that Brush, who was defending against the paramount equitable title of Hockaday’s heirs, acquired the land warrants, the basis of his claim, through a sale by Ware as executor of Hockaday’s estate. Under Hoekaday’s will, Ware, as executor, had no power to convey them. Since the sale by Ware was in Brush’s chain of title, it was held that he was bound to take notice of the powers of Ware under the will. In other words, Brush’s title rested upon a sale by one who had no power to sell. It is the recognized rule in this state that the defense of innocent purchaser does not apply to a purchase of the legal title from a holder who has not the power to convey it or the capacity to contract. Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815. But no such question is involved here. The state held the legal title to the land, and there can be no doubt of the power of the officers of the state to issue the patent upon the certificate. Nor, going behind the patent, could there be any doubt of the power of Hibbard, the owner of the certificate, to transfer it. Accordingly, had it been incumbent upon Blair to inquire beyond the patent, and, had he consulted the records in the land office, he would only have found what appeared on its face as a regular transfer of the certificate from one clearly competent to assign it.

The difference between the title carried by a patent issued upon a forged assignment of the certificate and that resting upon a forged deed in the chain of transfer, as affecting the defense of an innocent purchaser, is apparent. A forged deed is an absolute nullity; a purchaser under it acquires no title; and it therefore affords no foundation for the defense. In the former ease, as has been stated, the patent is not a nullity, but passes the legal title to the patentee and those holding under him.

The honorable Court of Civil Appeals, in the clear opinion delivered by its learned Chief Justice, correctly determined the case in rendering judgment for Blair as an innocent purchaser of the land, and its judgment is therefore affirmed.
      (g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    BARLOW v. COTULLA.
    (No. 2359.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    Contracts @=3237 — Modification—Consideration.
    A contract, without a new consideration, which entitles a creditor, secured by a lien on a tract of land, to retain the interest on a note given to the debtor by a purchaser of a part of the land, is not enforceable where the creditor under the original contract agreed, in consideration of the transfer to him of the note, to credit the principal and interest when collected on ■the debt.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1119-1122; Dec. Dig. @=237.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Joseph Cotulla against M. J. Barlow. There was a judgment of the Court of Civil Appeals (141 S. W. 292) affirming a judgment for plaintiff, and defendant brings error.
    Affirmed.
    C. L. Bass, of San Antonio, for plaintiff in error. C. C. Thomas, of Cotulla, and Charles Rogan, of Austin, for defendant in error.
   PHILLIPS, J.

Cotulla, being indebted to Barlow in a large sum, ’secured by a lien upon land, sold a tract of the land to Har-gus, receiving as part of the consideration the latter’s vendor’s lien note for $2,596.15, payable to his order, three years after date, bearing 8 per cent, interest. Cotulla transferred this note to Barlow a few days after he received it, upon a verbal agreement with Barlow, as he contended upon the trial, that its principal and interest, when collected, should be applied upon his indebtedness to Barlow, and that, in consideration for such transfer, the latter would release his lien upon the tract conveyed by Cotulla to Hargus, so as to give Hargus an unincumber-ed title. Barlow collected from Hargus the principal and interest upon the note, but refused to account for of pay to Cotulla the amount of the interest, the subject-matter of the suit at- the time of the trial, and for which amount Cotulla recovered judgment against him. The date of the conveyance of the tract by Cotulla to Hargus was February 23, 1904. Barlow executed a release of his lien upon that tract on February 26, 1904, reciting that Cotulla had that day indorsed to him the Hargus note.

The basis of Barlow’s asserted right to the amount in controversy was an instrument in writing executed by Cotulla and himself, of date March 3, 1904, reciting that, in consideration of Barlow having released his lien upon the tract conveyed to Hargus, he should collect the principal and interest of the Hargus note, at its maturity, credit Cotul-la’s indebtedness with the amount of the principal, and that he should have, as a consideration for releasing his lien on said land, all interest collected on the note.

Cotulla pleaded against this written instrument that the agreement it embodied was without consideration, since prior to its execution Barlow had already verbally agreed in consideration of the transfer to him of the Hargus note, then delivered to him, to release his lien upon the Hargus tract and credit Cotulla’s indebtedness with the principal and interest of the note when collected, and that the note had been delivered to him with that understanding.

The trial court submitted to the jury the issue as thus made, which was resolved in Cotulla’s favor.

If, prior to March 3, 1904, Cotulla had transferred to Barlow the Hargus note, and in that transaction it was understood between them that the consideration for such transfer was an agreement on Barlow’s part to release his lien upon the land conveyed to Hargus, and credit Cotulla’s indebtedness with the principal and interest of the note, when collected, it is apparent that the agreement expressed in the writing of March 3, 1904, was without consideration and of no effect, since it was not claimed by Barlow to have been supported by any other consideration moving from him than that it recited, namely, tile previous release of Ms lien. It was not improper, therefore, for the court to submit the issue in that form, made, as it was by Cotulla’s pleading, and having support in the proof. The interest accruing upon the Hargus note was originally the property of Cotulla. Barlow had no right to it unless Cotulla agreed that he should retain it in consideration for the release of the lien. The jury found that the instrument of March 3, 1904, which purported to invest Barlow with the right to it, was without any consideration to support it, because Barlow had already obligated himself, in his previous acquisition of the note, and in consideration for its transfer, to release his lien, which he had actually done, and to account to Cotulla for the principal and interest. That settled the matter. Cotulla v. Barlow, 115 S. W. 294.

The judgments of the Court of Civil Appeals and the district court are affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BOGUE v. TEXAS TRACTION CO.
    (No. 2345.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    1. Appeal and Error <@=>1175 — Determination.
    A judgment for an employs should not be reversed without remand on account of his contributory negligence, if the evidence, when considered in the light most favorable to the employs, was such that a jury might fairly find he was free from contributory negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. <§=> 1175.]
    2. Street Railroads <@=>98 — Operation — Collision — Contributory Negligence.
    A street railway motorman, knowing that a car operated by another company on the same track was directly ahead of him and that such car carried no rear lights, propelled his car at a high rate of speed, in violation of the rules of his company. Despite the approach of a car from the opposite direction, he did not wait for it to cross an intersecting street, as required by the rules, but ran his car across the street and collided with the one ahead of him. Held, that the motorman was guilty of contributory negligence, as a matter of law, precluding recovery against the owner of the car with which he collided.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. <@=> 98.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by E. L. Bogue against the Texas Traction Company. A judgment for plaintiff was reversed and rendered by the Court of Civil Appeals (139 S. W. 1042), and plaintiff brings error.
    Affirmed.
    Barry Miller, Ed. Sewell, and Carden, Starling, Carden & Hemphill, all of Dallas, for plaintiff in error. T. B. Williams and M. B. Templeton, both of Dallas, for defendant in error.
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement with reference to the case:

“This is a suit by appellee to recover of the Texas Traction Company damages for personal injuries received by him by reason of the car operated by him on the Metropolitan Street Railway running into the rear end of a car operated by the traction company on the said street railway track. Appellant pleaded the general issue, assumed risk, and contributory negligence. A trial resulted in a verdict and judgment for ap-pellee, and appellant prosecutes this appeal.
“The first assignment of error complains of the court for refusing to submit to the jury a special instruction as follows: ‘You are instructed in this case to return a verdict for the Texas Traction Company.’
“The facts show that Bogue was an employé of the Metropolitan Street Railway Company in the city of Dallas, and at the time of the accident was operating one of its cars as motorman. The Texas Traction Company operated an interurban line from Dallas to Sherman, and in the city of Dallas its cars run over the track of the Metropolitan Street Railway Company. The street railway company has double tracks extending north and south (general direction) across East Dallas along Peak street, a distance of probably a mile or more. These tracks cross at right angles streets of the city, a distance from one another of 300 to 400 feet, at which crossings arc lights are swung by the city in the usual way. The city cars are called ‘North Belt cars,’ and go the full length of Peak street, crossing Bryan. The interurban cars leaving the city pass out over Peak street to Bryan, then turn at right angles going into Bryan street and in a northeast direction out of the city. The incoming cars enter the city over the same line.
“The accident occurred at 11:45 o’clock at night. The incoming interurban ear turned out of Bryan street into Peak street ahead of the city car. As the turn was made, the city car was some 400 or 500 feet north on Peak street. Bogue, the motorman, saw the interurban as it swung around the corner at Bryan and passed over the switch to the right-hand track, coming in. By that time Bogue had approached still nearer the car. He could see the interurban because its side was 'turned towards him and the inside was brilliantly lighted with electric lights. Bogue discovered at that time that there were no lights upon the rear end of the. interurban car. The collision occurred at Swiss avenue crossing, being the second crossing south of Bryan. The surface is level from Bryan to Swiss, rising just a little. The incoming interurban had stopped on the south side of Swiss avenue about the same time the outgoing interurban came up alongside of the incoming car and stopped, or almost stopped. At this time the city car approached Swiss avenue from the north.
. “Appellee testified: ‘There were no red lights on the rear end of the incoming interurban car. I discovered that just after I hit it; and before he taken the cross over on Bryan street I did not see any red lights on the rear end of it. The first time I discovered there were no red lights on it was after it had turned into Peak street. After it passed I did not think very much about it. I knew it would pull right off and leave me like they always do. I did ntt think anything about running behind a car that had no red lights on it. I was not dreaming of any such thing as running behind that car; did not know anything about it; never had thought of it. I was not expecting to run into it. When I first saw it I never thought much about it, only I thought it did not have any markers on the back of the car. I have seen them several times since. I don’t know that I ever noticed it before. I know that at that time they did not often carry them, but did not know it at that time. I also knew that a bright light was shining in my face. I think that if you were going south and following another car going- south, and there is a car on the other track going north, there would be a time when the car in front going south would prevent you from seeing the car going north on the other track. I was running something like six or seven miles an hour when I got to the north edge of Swiss avenue and the south-bound interurban car something like six or seven feet, something like that, below Swiss avenue. The north-bound interurban car was just sticking over a little bit into Swiss avenue, or aboxxt even with Swiss avenue, or something like that. When I came up to Swiss avenue, and going into Swiss avenue, I think I was going aboxxt six or seven miles an hour. When I got to the south edge of Swiss avenue I was making about three miles an hour; not over three miles an hour. I had to pass the headlight of the north-bound Texas Traction Company car before I saw the soxith-bound Texas Traction Company car, which xvould put me around about the soxxth side of Sxviss avenue when I discovered the south-bound Texas Traction Company car. The reason I did not see it sooner is because the headlight on . the north-bound traction company car was so bright it blinded me, and I could not see it. The headlight of the north-bound Texas Traction Company car, which was on the opposite track from the track I was on, was so bright it blinded me. That headlight was very bright, in full blast. They usually use a screen of white cloth over the headlight to make it dim. They do that to screen the headlight so it would not burn so bright. It is to blind it. I have seen those screens of cloth used on this Ft. Worth interurban — the Northern Texas Traction Company; and then they have used that on these Sherman interurbana since. The Texas Traction Company have xised them since I had the accident. They either used the screen, or, when they come out Peak street here, they cut their lights oxxt very nearly. * * * There is a rule in the rule book of the Dallas Street Railway Company about the speed of cars passing cars that are standing still. * * * The rule is that when one car is standing still, and you are approaching with another car, the speed is three miles an hour, and over switches the same way. You are supposed to go over sxvitches at tlu-ee miles an hour when an inspector is around. I don’t know how fast a motorman oxxght to run. I did not know when I was in the service. All I cared was to make the schedule time that xvas given. I xvas due at the loop on Market street that night at 12 o’clock. I had only 15 minutes to run from Bryan street to toxvn. I don’t know how far that is, but suppose it is over two miles. The rule in regard to spacing between cars while in motion is 300 feet, and at rest, 25 feet. * * * When the interurban car turned off of Bryan street into Peak street I guess I was about three blocks north of it, something like that. I suppose it would be about 600 feet. That would throw the north side of the interurban car towards me as it took the crossing off of Bryan into Peak street. While operating a street car, the motorman is supposed to stand in the center of the car in the front end, in order to operate both his brake and con-trollei-. They are located right there ; one on one side and the other on the other side. The rule respecting attention and observation in respect to the track in front is to look ahead of you continxxally while the car is in motion. I understood that at the time. I saw the interurban car ahead turn in on Bryan and Peak street. * * * When I pulled out from Bryan street south, I don’t know bow far ahead of me the interurban car was. * * * I knexv about the time I got to Swiss avenue that the northbound interurban car was standing still. I saw the light before that, but you can’t tell whether they are moving or not. I did not know it was standing until I got up to about the edge of Swiss ax'enue, as well as I remember. My judgment is I was something like the north edge of Swiss avenue when 1 discovered the north-bound interurban car ahead stopped. It was on the south side, with the body of the car down Peak. * * * Having discovered it, it did not occur to me that it had stopped in order to let another car pass. I thought it had stopped there because about a montli before this there was a Sherman interurban car hit a wagon there on Swiss avenue. The first thing struck me was it was something like that. I never thought of this other car. * * * If it had not been for that thought about the xvagon I would have stopped anyway, because, after I saw the car had stopped, I xvould hax'e_ to roll on down just like I had to pass a car, just like I always pass a cai* standing still. I never thought about the fact that the motorman on the interurban car ahead of me would have to stop his car on account of that regulation, and that he might be standing there in the dark. There were lights on the inside of the car ahead of me. There are lights in all cars. I saw them through the glass door. I saw the lights as the car passed Bryan street at the crossing over there. .* * * I would not swear that it is an electric light. I do not know a thing in the world about the headlight on one of thesg interurban cars. The lights on our cars are just like the lights here in the courtroom — 16 and 32 candle power. We had a light on the rear end of our car, but not a red light. It was not our order to have red lights on the rear of the car. I don’t know that the city ordinances requix-e that. * * * For stopping the car, my car was equipped xvith a hand brake and a reverse lever. The reverse lever is attached to the controller of the car at the front end, and it has three notches on it; one locks the controller, and the notch ahead feeds the controller when you put the juice or current to it. The hand brake is used ta stop the car. We do not use both the hand brake and the reverse to stop the car. The reverse lever is used only in emergencies. The stopping power comes from the brake operating- against the wheel. When you jerk the re-vex-se lever, that turns the wheels in the opposite direction. To reverse a car you pull the lever and feed the controller; that is, feed the current into the reverse machine of the car. You can use both bands and do that all at once. The car xvas in good condition, except a little tight with the brakes kicking. A kicking brake is one that is not adjusted right and jerks a little. I was pretty well qualified to perform my duties, and thought I understood what they were. I familiarized myself with the rules and regulations; had them furnished me by my superiors in the service, and studied them while I was breaking into the business. Of course, I understood that I was expected to obey the rules and regulations. I knew that in passing over Peak street xve passed the interurban cars now and then. There are two tracks out on Peak street, and all cars going north go on the right-hand track. Peak street is double-tracked to where Washington avenue car line runs. Going north, the cars ax-e on the right-hand side, and coming south, it is the same way. As the cars pass, there is a space, I guess, of two or three inches between them. There is no rule about speed in regard to passing ears -while they are in motion. There is a rule in the rule book of the Dallas Street Railxvay Company about the speed of cars passing cars that are standing still. I haven’t the booh with me. We are not allowed to keep it after we quit. The rule is that when one car is standing still, and you are approaching with another ear, the speed is three miles an hour, and over switches the same way. * * * I don’t know of any rule of the interurban company that when one interurban meets another it had to come to a stop, and there is no reason that I know of for the north-bound ear to stop when it met the south-bound. I never had any order to put any lights or signals on the rear end of my car. Our instructions are to keep our headlights cut out on the rear end of our ears. The interurban cars put signals on the back end of their cars because they are easily seen, and that is why they used red lights instead or white lights. I don’t know whether they had been running with red lights back there in the rear before I was hurt or not. When you are meeting one of these interurban cars with a bright headlight burning, you are not able to tell whether the car is moving or not until you get pretty close to it.’
“Bogue made a signed written statement to his company within a few hours after the accident. He said: When I first saw the .car I was only 15 or 20 feet away from it. It was standing, and I was running about 10 or 12 miles an hour when I first saw it. The Texas Traction cars had met there and had stopped. The one going north had the headlight burning very bright, and blinded me so I could not see the other one. There was ’no red light on the rear end of the south-bound Sherman car. There were no lights of any kind. They were about a car length south of Swiss avenue. When I first saw the Sherman car, I set up my brakes and reversed and blew the overhead. Then I ran into the Sherman car. The front end of my car was crushed in, and the top of the controller was turned loose, but never fell. I had my foot under the bottom of the controller; and I think when the top was turned loose it fell back and caught my toe under the edge of it is what hurt my foot. I was knocked down, but fell- down against the end of the car. I could see the headlight on the northbound car from the time I crossed Bryan street until I struck the south-bound car. I have had no orders about passing Sherman cars. I had several passengers on my car, and none of them were hurt. I am not hurt anywhere, except my foot. Dr. Doolittle saw my foot. He said there were no broken bones. My car was not in good condition. The brakes were bad. I bad not reported them. I had had the car since 5 :30 p. m. I do not hardly know what was the matter with them, except that they were what we call a kicking brake. I do not know how they were at this particular time. I had to commence trying to stop a good piece back from where I wanted to stop on account of the condition of the brakes.’
“One of the printed rules of the street car company reads as follows: ‘When passing cars that are at a standstill on opposite tracks, cars that are about to stop, or when passing cars in any part of the city where the street traffic is heavy, or pedestrians or vehicles are near by, the car must be slowed down to a speed not exceeding three miles per hour, and must be under absolute control so that instant stop is possible.’ Another rule: ‘Gars must be under control crossing intersecting streets. Cars running in opposite directions must not cross intersecting streets, steam or electric railway tracks at the same time. The car reaching the street, steam or electric railway tracks first will have the right of way and the other car must wait until the first car has passed over.
“The evidence was conflicting with reference to the interurban car having a light on its rear end at the time of the collision, and it was sufficient to support the jury’s finding that there was none. It also shows that appellee was injured by the collision. Plaintiff offered in evidence an ordinance under date 1877, of the city of Dallas (chapter 4), entitled: ‘Buies governing the operation of street railways; street railways subject to the conditions of this chapter.’ It was provided that the rules and regulations concerning the running and operation of street railway cars shall be binding upon every person, firm, or corporation operating a street railway within or leading into the city. 'Section 8: ‘The cars after sunset shall be provided with signal lights.’ It is shown that in 1908 Texas Traction Company owned and operated an interurban railway from Sherman to Dallas, having tracks, right of way, depots, etc., and running into the city over the lines of the city street railway by virtue of an ordinance of the city granting the right and permission to operate its cars over the track of certain railway companies, and that said ordinance was granted subject to the existing charter and ordinances of the city of Dallas and such future charter and ordinances as may hereafter be passed, etc. It was also shown, by the city charter adopted in 1907, that interurban railways are therein defined to be, within the meaning of the charter, ‘railways operating their cars by electricity for the carriage of freight and passengers for hire, not wholly within the city and its suburbs, but as linos extending from the city of Dallas and its suburbs to other towns, cities or villages.’ ‘That the board of commissioners shall have power, subject to the terms and conditions contained in this charter, to grant to a person or corporation, desiring to extend an interurban railway into the city, the right to lay tracks and operate ears over the streets or other property of the city and over the tracks of other street railways for a term not exceeding twenty years.’ Also: ‘The right mentioned in the preceding section shall be granted by ordinance only, which shall not be finally passed until after three separate readings, etc. * * * The ordinance granting such right or franchise shall contain such conditions as may seem proper to the board of commissioners, and shall provide for such reasonable compensation to the city as may seem just,’ etc. It is then provided in the next section: ‘The terms of this charter concerning the granting of franchises to persons or corporations, for the purpose of rendering any public service wholly within the city of Dallas and its suburbs, shall not apply to interurban railways, except as specified in the four preceding sections and in the various sections providing for the referendum.’ The city ordinance provided that: ‘Gars driven in the same direction shall not approach each other within a distance of 300 feet, except in case of accident.’ Ordinance also provided: ‘It shall be unlawful for any person to propel, drive or move any street car at any place in the city of Dallas at a greater rate of speed than 12 miles per hour.’ It is also provided by city ordinance that 12 consecutive hours shall be the limit to keep conductors, motormen, etc., on the cars. Also a rule of the company that, in passing cars at a standstill on opposite tracks, the speed in no event to exceed three miles per hour, and must be under absolute control, so that instant stop is possible; also at street crossings make full stop on opposite side of street to let the car upon the opposite side, reaching it first, pass over, etc.”

The Court of Civil Appeals should not have rendered the judgment in this case if the evidence is such that a jury might fairly arrive at the conclusion that the plaintiff was not guilty of contributory negligence by his act of running into the rear of the ear of the street .car company. Stevens v. Masterson, 90 Tex. 417, 39 S. W. 292, 921; Warren v. Harrold, 92 Tex. 417, 49 S. W. 364. This presents usually a difficult question for this court, for it calls upon the court to place itself in the attitude of the jury, to determine the weight of the evidence most favorable to the plaintiff, discarding all evidence to the contrary. If, therefore, fairly considering the evidence with a view of arriving at a just solution of the issue between the railway company and the plaintiff, the jury might have concluded that the plaintiff wae not guilty of negligence which contributed to his injury, then we must reverse the judgment of the Court of Civil Appeals and remand the case for another trial.

Tn order to present this question, we will briefly state the points in the evidence of the plaintiff which tend to show the character of his act. In the first place, on the same track he had fallen in behind, and followed for some distance, the car of the interurban company, into which he ran subsequently, and he saw that it had no light in the rear. There was no evidence that the interurban car was required to carry a light in the rear, but we will consider the question upon the assumption that it was the duty of that company to have provided rear lights for its cars under such circumstances.’ We will therefore assume that the motorman on the interurban car was guilty of negligence in failing to have a light on the rear of the car, with which the car, which the plaintiff was operating, collided. This reduces the question to: Was the plaintiff guilty of such negligence as contributed to his injury as should prevent him from recovering?

It appears from the opinion of the court that there was a rule of the street car company for which the plaintiff operated its car; that no car should run at a higher rate of speed than three miles an hour in crossing a street. There was also a rule that, when a car was standing on the opposite side of a street which was being approached, the car approaching should not cross, but should stop and wait until the standing car had crossed over.

The plaintiff’s evidence is to the effect that he was running at about 12 or 13 miles per hour until he was within 20 feet of Swiss avenue, and about 3 miles per hour when his car crossed the avenue. When the collision occurred, the front of his car was crushed, which would justify the conclusion that Bogue was mistaken as to the speed at which the car was moving when the collision occurred. When the car was running three miles per hour, it could not produce such result. But he says he saw the north-bound interurban car standing on the south side of Swiss avenue, and the rule by which he should have been governed required that he should come to a stop, and remain until the interurban car had passed. Bogue disobeyed that rule, and proceeded to cross the street, whereby he was injured.

The disregard of the requirements of that rule of his company was negligence, as a matter of law, and the Court of Civil Appeals correctly reversed the judgment of the trial court, and, under the undisputed evidence, properly rendered judgment for the street car company. It is therefore ordered that the judgment of the Court of Civil Appeals be and it is hereby affirmed, and that the defendant in error recover of Bogué all costs in all courts.

Affirmed.
      <gu^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MITCHUM v. CHICAGO, R. I. & G. RY. CO.
    (No. 2357.)
    (Supreme Court of Texas.
    Feb. 17, 1915.)
    1. Appeal and Error @=>1175 — Reversai>-Rendering Judgment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, providing that when the judgment below shall be reversed the Court of Civil Appeals shall render such judgment as the court below should have rendered, the Court of Civil Appeals cannot enter judgment therein unless tho evidence is such that the district court should have instructed a verdict for the appellant, or such that a jury could not find for the appellee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. @=>1175.]
    2. Appeal and Error @=>1091 — Review— Sufficiency of Evidence.
    On error to the action of the Court of Civil Appeals in reversing judgment for plaintiff and rendering judgment for defendant, the Supreme Court must give to all the evidence which would tend to show that plaintiff was guilty of negligence the construction most favorable to him, and construe the testimony favorably to him in support of the finding of the jury which was reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4302-4311, 4331; Dec. Dig. @=>1091.]
    3. Master and Servant @=>289 — Action for Injury — Question for Jury — Negligence.
    On evidence in a section hand’s action for injury from a train approaching from the rear while attempting to remove his hand car from the track, held, that his failure to look for the approaching train was not as a matter of law negligence which would defeat his action.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. @=>289.]
    4. Master and Servant @=>246 — Action for Injury — Negligence—Right to Recover.
    In such case, the section hand’s negligence, if any, was not such negligence as would defeat his recovery, since it was an effort to perform a duty to protect those on the train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 789-794; Dec. Dig. @=>246.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by J. H. Mitchum against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (140 S. W. 811), and plaintiff brings error.
    Reversed and remanded.

      R. E. Carswell, of Decatur, Bell & Milam, or Ft. Worth, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for plaintiff in error. Lassiter, Harrison & Rowland, of Ft. Worth, and T. J. McMurray, of Decatur, for defendant in error.
   BROWN, C. J.

The Court of Civil Appeals found the following facts upon which we must determine the issues between the parties here:

“Appellee was in appellant’s employ as a section hand on its line of railway. In the latter part of January, 1907, as he testified, he and his brother, John Will Mitchum, and one Abies, also section hands, with one Wicher as their foreman, in the discharge of their duties as employes of appellant, were traveling from Park Springs on a hand car moving south on appellant’s line of railway. When the hand car reached a point on said line of railway 250 or 300 yards from a curve in a cut ahead of them, Wicher, saying he thought he heard a train coming, directed appellee and the other employes to stop the car and wait there while he walked ahead and ascertained if a train was approaching from the south. The car was stopped, and Wicher walked on to the curve, or to a point near it, and then, by waving his hand, signaled appellee and the other section men to come on. In obedience to Wieher’s signal, they propelled the car to a point about 50 yards further south, when a ringing of the rails warned them that a train was approaching; whereupon they jumped from the hand car, and, looking north, discovered that a passenger train running 40 or 45 miles an hour was coming towards /them and was only about 50 yards from them. In assisting the other men in getting the hand car off the track, appellee claimed he fell, and so received the injuries he complained of. He recovered a judgment for the sum of $7,500.”

Looking to the statement of facts, we find that defendant in error testified as follows:

“This hand car had four pieces of wood, about that long, by which we could take hold of it and lift it off; one piece on each corner of the car, and two in the middle. They were there for the purpose of lifting it off the track. I took hold of one outside piece and one center one, on the southeast corner of the' car. We got pretty near straight with the car. I mean by that, got up straight, moved it straight. It was awful heavy, and I think I had made one step, and my foot slipped. I had stepped east, to move it off. Fuller Abies was then standing on the back of the ear. He was standing there to make it lighter for us to lift the other end off. When I straightened up with the car and made one step, my foot slipped from under me, and I fell. 1 fell across the rail, crossways, across the iron railroad rail. My back and side hit the rail. I don’t know what I done then.” (Statement of Facts, p. 5.)

The following article of the statute is the authority of the Court of Civil Appeals to render judgment after reversing a case appealed to it from one of the inferior courts:

“When the judgment or decree of the court below shall be reversed; the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases tlie cause shall be remanded for a new trial in the court below.” Article 1626, Vernon’s Say les’ Civil Statutes.

Under this statute this court has uniformly held that the Court of Civil Appeals, after reversing a judgment, cannot enter judgment in that court unless the evidence is of such character that the district court should have instructed a verdict in favor of the appellant.

The only question presented to us by this writ of error is whether the facts of this ease were so conclusive of the negligence of the plaintiff in error that the district judge should have instructed the jury to return a verdict against him, or, as it is otherwise stated in some of the eases, the facts must be of such nature that a jury could not find a verdict in favor of him. Choate v. S. A. & A. P. Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Id., 91 Tex. 406, 44 S. W. 69; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323.

This brings us to the only question, which is: Are the facts as shown in the record of this case so conclusive of the negligence of the plaintiff in error as to bring the ease within the rules of the law and within the power of the court to enter a judgment? In order to test that question, we must give to all evidence which would tend to show that he was guilty of negligence the construction most favorable to him, and determine the question by the construction of the testimony most favorable to him in support of the finding of the jury.

The facts are not capable of much discussion, but it appears to us very clearly that the jury looked at conditions as they existed, with the plaintiff upon a hand car standing upon the track and with the foreman at the south of him, to discover whether the train was coming from the south or not. He believing that it was, and his attention being called in that direction, can it be said that because he did not turn and look for the train due to come from the north he was therefore guilty of negligence? We must bear in mind that it was the duty of operatives of the train from the north to have given a signal to those on the track in order to warn them of the approaching danger. Yet they gave no such signal, and the approach was not discovered until they were within a short distance of the car. Under such conditions, it became the duty of the men on the car to remove it, if they could, to prevent collision with the car and injury to the persons in the passenger coaches, and in the removing of the ear he was not guilty of negligence. They removed it to a place where it did prevent a collision.

Under such circumstances, the action of the plaintiff in this case, in our opinion, cannot be said to be, as a matter of law, an act of negligence which would defeat his right to recovery for injury which evidently grew out of the approach of the train from the north. It is difficult to argue a proposition which is so manifest to the mind of the writer as this is, that, if negligence at all, it is not such negligence as would defeat the recovery, because of the fact that it was an effort to perform a duty to protect those on the train.

We are of opinion that the Court of Civil Appeals erred in entering judgment in this case. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed, and the cause remanded to the district court for trial.

Reversed and’ remanded.
      @=>For other oases see same topic and KEY-NUMBERin all Key-Numbered Digests and Indexes