author: FLY, O. J.

text:
    PARROTT et ux. v. PEACOCK MILITARY COLLEGE.
    (No. 5512.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.
    On Motion for Rehearing, Dec. 1, 1915.)
    1. Venue &wkey;>32 — Objections—Plea of Privilege — Waiver.
    Although the defendant files his plea for privilege, seeking a removal of the cause to another court, but fails to call it up for hearing at the term at which it is filed, he waives his plea, so that refusal to grant it cannot thereafter be alleged as error.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 47-50 ; Dec. Dig. &wkey;>32.]
    2. Husband and Wife &wkey;>21 — Agency of Wife for Husband.
    A wife may act as her husband’s agent, and the fact that she uses her name, instead of her husband’s, does not alter his liability.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 139, 141; Dee. Dig. &wkey; 21.]
    3. Husband and Wife <&wkey;23% — Agency of Wife — Evidence.
    Evidence held to show a. wife to have been the agent of her husband in contracting for the education of their son at plaintiff’s college.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. <&wkey;> 23%.]
    4. Contracts &wkey;>94 — Eraud — Failure to Read.
    In the absence- of a positive showing of fraud in inducing a contract, failure of one of the parties to read the contract does not, of itself, show sufficient fraud to vitiate it.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. <&wkey;>94.]
    5. Appeal and Error <&wkey;742 — Matters Reviewable — Preservation of Exceptions.
    An assignment of error which is not followed by a statement, as required by the rules of court, will not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]
    On Motion for Rehearing.
    6.Venue <&wkey;7 — Contracts—Place of Payment.
    A contract, expressly agreeing to pay money at a certain place, lays the venue of the action in that place.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. &wkey;7.]
    7.Husband and Wife <&wkey;23 — Liability of Husband — Necessaries.
    On the question of liability of a husband for the education of his son at a college, contracted for by his wife, it is immaterial whether the education is a .necessary.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 142-144; Dec. Dig. <&wkey;> 23.]
    Appeal from Bexar County Court for Civil Cases; J. PI. Clark, Judge.
    Action by the Peacock Military College against C. L. Parrott and wife. Prom a judgment in part for plaintiff, .defendants appeal.
    Affirmed.

      Templeton, Brooks, Napier & Ogden, of San Antonio, for appellants. O. O. Todd and Leonard Brown, both of San Antonio, for appellee.
   FLY, O. J.

This is a suit for $375, instituted by Peacock Military College against appellants. The suit is based upon a written contract, signed by Mrs. C. L. Parrott, in which she bound herself to pay the sum of $475 at San Antonio, Tex., for the tuition of her son. On the 18th day of December, 1913, appellant filed a plea of privilege to be sued in Hunt county, which plea was heard by the court on March 17, 1914, and overruled. The suit Was filed on July 31, 1911, the plea of privilege being filed two years thereafter. The cause was tried by a jury, special issues having been submitted by the court, and on the answers judgment was rendered in favor of appellee for the sum of $365. From that judgment this appeal has been perfected.

The testimony shows that Mrs. Parrott was the agent of her husband, and authorized to make the contract for the enrollment of their son with appellee. She signed the instrument, binding herself to pay the sum of $475 to appellee at San Antonio, Tex., stating in the contract that her son was enrolled “for the session beginning September 12, 1910, and ending May 12, 1911, for th'e entire session.” The husband testified that he had authorized his wife to take their son to San Antonio and place him in the school for the session. Contemporaneously with the signing of the contract, an oral contract was made by and between Mrs. Parrott and ap-pellee that the tuition should be paid quarterly, and she paid $100 to Prof. Peacock, the owner of the school.

The first three assignments of error attack the ruling of the court, in not sustaining the plea of privilege. The record shows that the plea of privilege was filed on December IS, 1913, during the November term of the county court; that it was not brought to the notice of the court before the end of the term. At the January term appellant sought and obtained a continuance of the case without prejudice to the plea of privilege. The plea of privilege was denied at the March term of the court, 1914. The failure to call the attention of the court to the plea of privilege at the term at which it was filed was a waiver of such plea. In the ease of Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224, the court, in discussing the statute as to pleas of privilege, held:

“We think, as indicated above, that the law imposes upon the party relying upon such a plea the duty of demanding the action of the court thereon at the time the statutes and rule above quoted require it to act in the particular case, and that his failure to do so is a waiver thereof. When he brings the matter before the court it may be continued, or the court may make such orders as the condition of its docket may render necessary, and there will, of course, be ao waiver.”

With the same effect is Millinery Company v. Melcher, 142 S. W. 100, where the authorities are collated. There can be no doubt therefore, that the plea of privilege was waived by appellants, and the suit was properly tried in Bexar county. The assignments are overruled.

There is no provision in our laws which incapacitates the wife from acting as agent for her husband, and the law of agency, as between husband and wife, is the same as between any other, two persons. If Mrs. Parrott was acting within the scope of her agency in signing the contract for the entire session, the contract bound her husband, and the fact that she may have used her name, instead of the name of her husband, would not alter the fact of bis liability. As said by the Supreme Court in the ease of Traynham v. Jackson, 15 Tex. 170, 65 Am. Dec. 152:

“Whether the act be done in the name of the principal, or in the name of the agent acting for the principal, would seem, in reason, to .be quite immaterial. Let it be done as it may, it is the agent who performs the act. By his agency alone can it be done; and, if that agency appears, it should, in the nature of things, be sufficient to bind the principal.”

Whatever may have been the strictness of the common law in regard to the rule that, in order to bind the principal, the contract must, on its face, purport to be that of tbe principal, tbe rule bas been relaxed in Texas, and tbe only question that arises is, Did the agent have the power and authority to execute the contract to which his name, and not that of his principal, is signed? We think the evidence in this case clearly indicates that Mrs. Parrott had the power and authority, as agent of her husband, to make a contract to enroll her son as a pupil for the entire session, and, no matter whether the contiact was written or verbal, it bound her husband.

The evidence shows that Mrs. Parrott entered into an agreement with appellee to place her son in tbe school for the entire session, 'and, although she may not have read tbe written contract, and may have been told by Prof. Peacock that her signing tbe contract was a mere matter of form, it would not invalidate that instrument on account of fraud or mistake. Tbe evidence fails to show that any fraud was practiced upon her, or that she made any mistake in regard to the instrument that she was signing. She must have known the terms of the written contract, and was not deceived by any one. Tbe mere failure of a person to read a contract cannot constitute such fraud as to invalidate it. If she did not read the contract, it was her fault, and not that of any one else. The fourth and fifth assignments of error are overruled.

The sixth assignment of error will not be considered, as it is not followed by such a statement as is contemplated by tbe rules. What tbe charge, of which complaint is made, contained does not appear in the brief, there being no copy of it, nor statement of its contents.

The same ruling applies to the seventh assignment of error.

For the reasons given in overruling other assignments, the eighth assignment of error is overruled.

The assignments of error from the ninth to the fifteenth, inclusive, are without merit, and are overruled.

The judgment is affirmed.

On Motion for Rehearing.

It is earnestly contended that there is no evidence that the county court was in session when the plea of privilege was filed, and consequently there was no waiver, but, if that be admitted, still, as held in the former opinion, appellants are bound by the written contract, which expressly mates the money payable in Bexar county.

It is also immaterial as to whether the education of the son would be deemed “necessaries” or not. Appellants contracted to pay the money, in writing, in San Antonio, Tex.

The motion for rehearing is overruled.
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source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    RILEY v. HALLMARK.
    (No. 843.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. Pledges &wkey;>ll — Essentials—Change oe Possession.
    Delivery is essential to a pledge; and, until there has been a change of possession and right of control sufficient to divest the owner of his right to possession by an act which must be equivalent to a delivery in case of sale, it is not a pledge, but a mere executory contract for one.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 28-35; Dec. Dig. &wkey;>ll.]
    2. Evidence <&wkey;588 — Weight — Credibility oe Witnesses — Question eok Juey.
    In a trial of right of property attached in the hands of a tenant, which was claimed by the landlord as security for a debt, the jury might properly reject the testimony of both the tenant and the landlord on the ground of interest, and answer as to a portion of the goods attached that the tenant still had possession thereof.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2437; Dec. Dig. <&wkey;588; Witnesses, Cent. Dig. § 1104.]
    3. Pledges &wkey;>34r-ELEMENTS — Sueeiciency oe Possession.
    On a trial of the right of property attached in the hands of a tenant, claimed by the landlord as security for a debt, an instruction that possession, to support a pledge, need not be actual physical possession, was properly refused, since the jury might have understood therefrom that if the contract of pledge existed, the right of possession thereunder would give the landlord possession by presumption without delivery.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. § 90; Dee. Dig. <&wkey;>34.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Action by J. V. Riley against G. T. Hallmark. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Rosser & Boyd, of Snyder, for appellant. Higgins & Hamilton, of Snyder, for appellee.
   HENDRICKS, J.

This is a case of a trial of the right of property. The appellant, J. V. Riley, by filing the affidavit and bond, claimed 12 bales of cotton, which the appel-lee, Hallmark, had levied upon by writ of attachment. C. F. Veach was a tenant on a farm belonging to the appellant, Riley, and appellee, Hallmark, had instituted a suit against him, in the justice court for debt, issuing and levying attachment upon cotton, Riley claiming the same in this suit upon an agreement with Veach that the cotton was to be gathered and delivered to him as security for debt. At the time of the levy 5 bales of the cotton had been ginned, and cotton to the amount of 7 bales had been gathered and was in the field at the time of the levy. Upon the submission of special issues the jury answered that the 5 bales of cotton were in the possession of Riley, and that the 7 bales, in the field, were in the possession of Veach, the tenant. There is no claim in this record that Riley, as the landlord of Veach, the tenant, was entitled to the cotton by virtue of any landlord’s lien. As to the 7 bales which the jury answered were in the possession of Veach, the tenant, appellant assigns error that there is no testimony to sustain such a verdict, and that the possession of said cotton was really his possession.

Riley’s claim is necessarily under a contract of pledge. Delivery is essential to a pledge. Luckett v. Townsend, 3 Tex. 119-129, 49 Am. Dec. 723. Until the possession and the right to control the property has passed from and been vested out of the owner, it is not a pledge, but a mere executory contract for one. Adoue v. Seeligson, 54 Tex. 593-602. The change of possession, to create a proper pledge, is the same as would amount to a sufficient delivery in ease of sale. Brown v. Hudson, 14 Tex. Civ. App. 605, 38 S. W. 653.

Riley and Veach being interested parties to this litigation, and the former especially being a party to this suit, and directly interested in the result, the jury had the right to reject their testimony on the question of delivery and possession, and answer as to a portion of the cotton that Veach still had possession of same and had not yet surrendered that dominion to Riley, as to constitute a transition of same. Rayner v. Posey, 173 S. W. 246, and numerous cases therein cited.

Upon reading this record, we are convinced that reasonable minds might differ upon the question of delivery and change of possession; hence the testimony is not conclusive against the contention of appellee.

T]ie appellant requested this charge:

“You are further charged that possession need not he actually physical possession, -hut if the right of possession exists, possession will be presumed.” '

The jury might have understood that if the contract of pledge existed, the right of possession thereunder would give appellant possession by presumption, without any element of delivery whatever, which is clearly not the law.

We find no such injury, under the present rule, on account of the introduction of testimony, complained of by appellant, as will cause the reversal of this case, and it is accordingly affirmed.
      d^soFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    STONE v. ROBINSON et al.
    (No. 838.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. CONTRACTS <&wkey;143 — Construction.
    In construing a contract the court must seek the parties’ intention from the words used, the subject-matter, and the purpose of the agreement, placing itself, if the intention is not clearly expressed, in the position of the parties, and then, from a consideration of the instrument as a whole, in the light of all circumstances, endeavoring to reach its real meaning, reconciling clauses apparently in conflict, if possible, to render the agreement fair, customary, and such as reasonable business men would execute.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 723, 743; Dec. Dig. &wkey;143.]
    2. Vendor and Purchaser &wkey;>267 — Vendor’s Lien — Reuease.
    Where the vendor of 40 acres to be divided into lots by the buyer and sold, being about to be much absent from the state, executed a power of attorney to a third person, it being stipulated in the power that, if at any time the buyer should pay to the vendor or a bank for his credit the sum of $30 per lot, the vendor should release the lot from his lien, a subsequent clause providing that the attorney also might and should execute releases for any lots when the buyer should make the payment, “except the lots or plot of ground on which is situate the house,” which house was worth $1,500, a construction of the power of attorney that it required the vendor, if requested, to release the four lots upon which the house, worth $1,500, was located, upon the payment of $30 per lot, was improper, rendering the contract unfair, not customary, and not such as prudent business men would naturally execute, tending to render the specified clauses of the power repugnant, and the contract inequitable to the vendor. A proper construction of the phrase “except the lots or plot of ground on which is situate the house” was that it was equally applicable to the vendor or his attorney, and required neither to release the lots on which the house stood.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. &wkey;>267.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by John B. Stone against Jim Robinson, Jr., and others. Judgment for plaintiff, and he appeals on an agreement made under Rev. St. 1911, art. 2112.
    Reversed and remanded.
    Bean & Klett, of Lubbock, for appellant. Benson & Spencer and Jas. R. Robinson, all of Lubbock, for appellees.
   HALL, J.

September 9, 1909, J. B. Stone executed the following power of attorney:

“The State of Texas, County of Lubbock.
“Whereas, I, J. B. Stone, joined by my wife, Barbara Stone, did this day convoy to Jim Robinson, Jr., the northwest one-fourth of the southwest one-fourth of survey No. 7, in block B, located by virtue of land script No. 307, issued to T. T. Railway Co., and patented to Z. J. Brown, assignee, and situated in Lubbock county, Texas; and,
“Whereas, the said Jim Robinson, Jr., has surveyed the same in lots, streets, and .alloys and has published the same as the Robinson addition to Lubbock, dedication the streets and alleys to the public for public use; and,
“Whereas, to secure part payment of the consideration of said sale, said Jim Robinson, Jr., has executed and delivered to me his two certain vendor’s lien notes of this date, each for the sum of $3,500.00, maturing on or before one and two years from date respectively ; and,
“Whereas, the said Jim Robinson, Jr., is selling and disposing of said lots, and it is agreed and understood by and between us that at any time the said Jim Robinson, Jr., shall pay or cause to be paid to me or the Lubbock State Bank for me the sum of $30.00 per lot in said addition, then the same shall be released from the vendor’s lien executed to secure the payment of said notes, and I hereby delegate myself so to do; and,
“Whereas, I, the said Stone, contemplate being absent from the state a great deal of my time, and in order to carry out our understanding as aforesaid without delay, I, J. B. Stone, of the county of Lubbock and state of Texas, have this day made and constituted and appointed, and by these presents do make, constitute, and appoint, W. S. Posey, of the county of Lubbock, state of Texas, my true and lawful attorney in fact, for me and in my name to execute releases from the vendor’s lien existing as aforesaid on any lot or lots in said addition, when the said Jim Robinson, Jr., or his assigns or vendees shall pay or cause to be paid to the Lubbock State Bank of Lubbock, Texas, the sum of $30.-00 per lot, except the lots or plot of ground on which is situate the house for my credit with said bank; and I further authorize the said Posey or said bank to receive from the said Jim Robinson, Jr., any sum or sums of money that said Robinson, Jr., or his vendees or assigns may pay or cause to be paid to said bank, to be applied on said two $3,500.00 notes, and when said notes, or either of them, is fully paid off by money deposited in said bank to my credit, to execute and deliver proper and sufficient release therefor.
“Hereby ratifying and confirming any and all acts by my said attorney in fact lawfully done in and about the premises as fully as if I were personally present and acting for myself.
“Witness my hand at Lubbock, Texas, this September 9, 1909.”

This instrument was duly acknowledged and filed for record on the same day.

Appellant brought suit to recover the balance due on the two $3,500 notes described in the foregoing instrument and to foreclose the lien reserved in the deed therein mentioned upon a large number of lots, including the four lots upon which the house mentioned in the foregoing instrument was situated. A number of vendees of Jim Robinson, Jr., were made parties to the suit, but personal judgment was sought against Robinson only; the appellant praying for a foreclosure of the lien as to all of the defendants. The case is before us upon an agreement made in accordance with article 2112, R. S., in which it is stipulated:

“That the point at issue in this case and the appeal thereof is whether the court, in trying this case, properly construed the meaning and legal effect of the power of attorney given by plaintiff to W. S. Posey.”

The judgment of the court was in favor of the plaintiff against Jim Robinson for the sum of $1,450.61, balance due on the two notes and- foreclosing the vendor’s lien as against all of the defendants upon certain lots not necessary to be mentioned here. It appears that the four lots in question had been conveyed to James Scott and wife by Robinson, and, the court having instructed the jury to return a verdict against the foreclosure of appellant’s yendor’s lien upon said lots, judgment was entered accordingly. The only complaint made here is of the failure of the court to foreclose the lien upon said four lots.

The facts proven upon the trial and set out at length in the agreement are, in substance, as follows: Prior to September 9, 1909 (the date of the execution of the power of attorney), J. B. Stone was the owner of 40 acres of land near the town of Lubbock, and on said date, joined by his wife, he conveyed the same to Jim Robinson, Jr., by warranty deed, retaining the vendor’s lien to secure the payment of the two notes sued upon. At the time of the sale Stone knew that Robinson intended to subdivide the land into blocks, lots, streets, and alleys and make the same an addition to the town of Lubbock, and to place said lots upon the market for sale. W. S. Posey was agreed upon as the party who should act for Stone in receiving payments for the lots, crediting the amounts upon the two notes and in executing releases. Stone, Robinson, and Scott relied upon £he power of attorney set out above as evidencing the agreement between Stone and Robinson with reference to payments and releases. Scott and wife had no knowledge of any agreement between Stone and Robinson with reference to releasing the lien upon lots in said addition, except the notice given them by the recordation of the power of attorney. The lots mentioned in the power of attorney and upon which the house was situated are the same as lots 8, 9, 10, and 11 in block 4, and are the premises upon which the James Scott residence is located. At the date of the sale from Stone and wife to Robinson the residence was situated on said land, and is still there. That it is in good repair. That it is the house referred to in the power of attorney and is valued at $1,500. By mesne conveyances Scott and wife acquired the land from Robinson, Jr., and took possession of the land, occupying the house thereon. None of the subvendees of Robinson had any conversation with Stone before purchasing said property with reference to Stone executing or authorizing any one else to execute releases to said lots upon payment of $30 per lot, or any other sum. After the sale and the execution of the power of attorney Robinson sold about 45 lots, turning the proceeds, amounting to $1,320, over to Posey, which amount was duly credited on the notes held by Stone and a release of the vendor’s.lien on said lots was duly executed. Thereafter, and before this suit was filed, Robinson made further payments, aggregating about $2,200, which were by Posey and Stone credited upon the notes. After the institution of the suit, and before the defendants had answered, Robinson designated, among others, as lots he wished released from plaintiff’s lien, the four lots herein-before mentioned, being the property upon which the house was situated. Stone refused to release said four lots or permit Posey to release them, unless Robinson would pay the balance due on the two $3,500 notes.

In construing a contract, the cardinal rule Is to ascertain the intention of the parties. Their intention is to be ascertained from the words used, the subject-matter of the contract, and the purpose of its execution. If the intention is not clearly expressed in the writing, the court should, as far as possible, place itself in the position of the parties when their minds met upon its terms, and then, from the consideration of the instrument as a whole, in the light of the surrounding circumstances, endeavor to arrive at its real meaning. If the instrument contains clauses apparently in conflict, they should be reconciled, if.it can be done by a reasonable interpretation; that is, “such a construction as will make the agreement fair, customary, and such as prudent business men would naturally execute.” The court should not construe a contract uncertain in its terms or one containing apparently repugnant clauses so as to render it inequitable or oppressive to either party in its operation, if such a construction can be avoided, because it will not be presumed that the parties intended to enter into a contract which is unjust or inconsistent in its terms. Effect must be given to every part, and the whole be permitted to stand, if possible. Johnson v. Clements, 23 Tex. Civ. App. 112, 54 S. W. 272; Cleburne Water, etc., Co. v. Cleburne, 13 Tex. Civ. App. 141, 35 S. W. 733; San Jacinto Oil Co. v. Ft. Worth Light, etc., Co., 41 Tex. Civ. App. 293, 93 S. W. 173; Texarkana Lumber Co. v. Lennard, 47 Tex. Civ. App. 116, 104 S. W. 506; Tittle v. Vanleer, 89 Tex. 174, 29 S. W. 1065, 34 S. W. 715, 37 L. R. A. 337; McHugh v. Gallagher, 1 Tex. Civ. App. 196, 20 S. W. 1115; Smith v. Brown, 66 Tex. 543, 1 S. W. 573; Knapp v. Patterson, 99 Tex. 400, 90 S. W. 163; Moore v. Waco, 85 Tex. 206, 20 S. W. 61; Linch v. Paris Lumber Co., 80 Tex. 23, 15 S. W. 208; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Rep. 542; Linton v. Brownsville Land Co., 46 Tex. Civ. App. 225, 102 S. W. 433; Whitis v. Polk, 36 Tex. 602; 2 Elliott on Contracts, §§ 1508, 1514, 1517; 2 Page on Contracts, § 1113; 6 R. C. L. “Contracts,” §§ 225, 226, 227, 236, 239, 241.

In one clause of the power of attorney it is stipulated that, if at any time Robinson shall pay or cause to be paid to Stone or to the bank for the credit of Stone the sum of $30 per lot, the same shall be released from the vendor’s lien. A subsequent clause provides that Posey, as attorney in fact for Stone, shall execute releases for any lots when Robinson or his vendees shall pay or cause to be paid to the bank for the credit of Stone the sum of $30 per lot, “except the lots or plot of ground on which is situate the house.”

Appellees argue that, according to the wording of these clauses, Stone could be compelled to release any lot upon payment of $30, and Posey could release any lot except the ones upon which the house was built. We can conceive of no reason for a limitation upon the power of Posey to do a thing which his principal might be forced to do at any time, and appellees suggest none. The fallacy of this contention is emphasized by a provision in the last clause which authorizes Posey, equally with the bank and Stone, to receive any sums of money from the purchasers of any of the lots.

The court filed no findings of facts or conclusions of law, but in the record it is agreed:

“As a fact that the court did construe the meaning and legal effect of said power of attox--ney to be that upon the payment by Jim Robinson, Jr., of $30 per lot (or $120) on the note sued on, and the designation of said lots as the ones he desired released, that he was entitled to have them released from appellant’s vendoi'’s lien, and that the payment of said sum of money and designation of said lots or tract of land canceled the lien on said lots or tract of land, although there was at the time of the payment and time of the trial of the cause a large sum of money due on each of the notes sued on; and the court further held that the said power of attorney did not provide or mean that the said lots or tract of land were to be excepted from the right of being released upon payment of $30 per lot, and designating them to be released until the whole amount due on the notes given by Jim Robinson, Jr., to J. B. Stone should be paid.”

The evident purpose of the contract was to enable Stone to dispose of his 40 acres of land and improvements upon such terms as would permit Robinson to pay for it by the sale of lots into which the tract should be subdivided. In order to facilitate the sale it was stipulated that Robinson might have any number of lots released from the lien by a payment of $30 per lot. From a reservation of the vendor’s lien and retention of the superior title in Stone the fair and necessary inference is they intended that Stone should be at all times amply secured. The record does not disclose the total number of lots nor the full consideration named in the deed. However, appellees’ construction of the contract would have permitted Robinson to first sell and have released the four lots upon which the house, worth $1,500, was located by the payment of only $120. Such an amount would not, of course, be a fair consideration for the house and lots, and the release of them from the lien would seriously impair the value of the security. The fact that several years elapsed between the date of the sale of the lots in question by Robinson and the demand by him for their release, and the further fact that the demand was not made until after this suit was filed, may be taken as a practical construction of the contract by Robinson himself in favor of appellant’s contention. If we place ourselves in the position of the parties at the time the contract was executed, we find Robinson purchasing property for which he did not, and possibly could not, pay all cash. Manifestly, after subdivision, the lots, with the house upon them, would be, when compared with a like number of vacant lots, the most valuable and desirable portion of the contract. The sale value of the remaining lots to Stone was estimated at $30 each. Their total value at $30 apiece, added to the value of the four improved lots, made up the entire consideration for the conveyance. To place such a construction upon the contract as would enable Robinson to first dispose of the most valuable and salable part of the entire tract for an inadequate consideration moving to Stone does not, in our opinion, “make the agreement fair, customary, and such as prudent business men would naturally execute.” Such an interpretation would tend to make the two clauses repugnant and render the contract inequitable to Stone. To construe the phrase “except tlie lots or plot of ground on which is situate the house” as being equally applicable to Stone and Posey is consistent with reason and equity, as well as the practical construction which we think has been placed upon the contract by the parties themselves.

In the light of the record before us, we are of the opinion that the trial court erred in its construction of the contract, and the judgment will therefore be reversed. It appears, however, that the facts have not been fully developed, and the cause will be remanded.

Reversed and remanded.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CAPPS et al. v. EDWARDS.
    (No. 835.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.
    Rehearing Denied Nov. 27, 1915.)
    1. Venue <&wkey;5 — Natuee and Fobm oe Action — Peesonae ob in Rem.
    Where plaintiff entered into a contract with defendant for the sale of land, plaintiff delivering to defendant at the execution of the contract a deed to the land, an action by plaintiff for the foreclosure of a vendor’s lien, based on the assumption that defendant had accepted the deed, was not an action for specific performance, and thus personal in its nature, so as to require the action to be brought in the county of defendant’s residence, but was an action in rem, which could properly be brought in the county in which the land was situated.
    [Ed. Note.- — For other cases, see Venue, Cent. Dig. §§ dr-11; Dec. Dig. &wkey;?5.]
    2. Venue c&wkey;5 — Place ox Trial — Foreclosure.
    Rev. St. 1911, art. 1830, exception 12, providing that action for foreclosure of a mortgage or other lien must be brought in the county where the real estate is situated, applies to the foreclosure of an equitable vendor’s lien, as well as to contractual liens.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;5J
    3. Deeds <&wkey;208 — Delivery—Intent.
    Evidence held, to require a finding that a deed was not delivered to and accepted by the purchaser with the intent to transfer title.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. &wkey;208.]
    4. Deeds <&wkey;56 — “Delivery.”
    The term “delivery,” when used in reference to a deed, ordinarily implies acceptance, but a transfer of manual possession of a deed for examination, or other purposes, without acceptance, is merely a tender of the deed.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. §§ 117-123, 125; Dee. Dig. &wkey;56.
    For other definitions, see Words and Phrases, First "and Second Series, Delivery.]
    5. Deeds i&wkey;05 — Conditional Delivery.
    Where the purchaser of land at the execution of the contract of sale, stipulating for a merchantable title, received a deed to the land from the vendor with the intention of retaining the same if the abstract exhibited a merchantable title, the delivery and acceptance of the deed were conditional.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 144; Dec. Dig. &wkey;65.]
    6. Appeal and Error <&wkey;934^-REViEw — Presumptions.
    Where a particular issue in an equitable suit is submitted to the jury by special interrogatories, and all other issues raised and tendered by the pleadings are waived, the appellate court cannot presume, in support of the judgment, that the court found other issues upon the testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8777-3782; Dec. Dig. <&wkey;> 934.]
    Appeal from District Court, Deaf Smith. County; W. H. Russell, Special Judge.
    Action by S. B. Edwards against William Capps and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Ocie Speer, of Ft. Worth, for appellants. Carl Gilliland, of Hereford, for appellee.
   HENDRICKS, J.

S. B. Edwards, of Deaf Smith county, instituted this suit against William Capps and W. C. Forbess, of Tar-rant county, and against W. B. Forbess, of the state of Colorado, said suit involving a contract for the sale and purchase of land. On the issue of a plea of privilege, the nature of the cause of action, instituted by Edwards against the appellants, is very much in dispute, the latter insisting that the action is one of specific performance of the written contract, constituting a personal action, requiring the cause to be litigated in the forum of their residence, the appellee Edwards contending that the contract is one for the sale and conveyance of the real estate, vesting title to the same in the purchasers, and that, with the additional allegations of a delivery of the deed to the purchasers, with a breach of the contract, made the case one of enforcement of a lien upon real estate, coming within the purview of exception 12, art. 1830, Rev. St. 1911, permitting the “foreclosure of a mortgage or other lien” in the county in which the land is situated.

The contract is; “An agreement whereby first parties have sold to second parties the following described land [omitting the description] for the sum of $16,275.00, on the following terms and conditions, viz., $1,275.00 cash in hand paid, the receipt of which is hereby acknowledged, $3,000.00 December 1, 1913” — and providing for successive equal payments annually for each successive year for the balance of the consideration, “all deferred payments to be on or before and to bear six per cent, interest from the date of delivery of deed until maturity.” The contract provides that the vendor should furnish, within 60 days, a warranty deed, with “abstract showing a good and merchantable title,” and in the event the vendor failed in that respect, the cash payment was to be refunded “in full settlement of all damages.” An irrigation plant, then in course of construction, was to be installed, and a certain house was also to be constructed at the earliest possible moment. The appellee alleged that he had delivered the deed and the abstract, and had complied with the Contract requiring him to furnish an abstract exhibiting merchantable title, and alleged in that connection:

“That the defendants accepted said deed, kept it, exercised dominion over it, and still had it in their possession.”

In the alternative, he pleaded that if there were any defects in the title shown by said abstract, the purchasers, by accepting the deed of conveyance and “retaining and keeping the same, waived any and all defects that said title may have had.”

If we interpret properly the contention of appellants, Wm. Oapps and W. C. Forbess, applicable to their plea of privilege, it assumes two phases: (1) Appellee’s allegations sound in specific performance, and the action was personal; (2) “it is a perversion of terms and a violence to the construction of exception 12, art. 1830 * * * to hold that the present action is for the foreclosure of a mortgage or other lien,” so as to give jurisdiction to the district court of Deaf Smith county; that the “mortgage or other lien,” mentioned within the exception of the statute, “obviously mean express contract, and mortgage lien, and not the equitable lien arising against one who originally breaches his written contract to purchase real estate.”

Applicable to the first position we do not think the case of Cavin v. Hill, 83 Tex. 73, 18 S. W. 323, invoked by appellants, affords the complete analogy argued; and, when compared to this ease, we think there is a marked dissimilarity in the real nature of the actions. Of course the character of any suit must be determined from the facts alleged therein, and there is no magic in words to change its real nature. Cavin v. Hill, supra. In this action appellee first pleaded the contract, a compliance by him, a delivery and acceptance of the deed; and, second, that if there are any defects in the title, as shown by the abstract, the defendants, by accepting the deed of conveyance and retaining the same, waived the defects, in fact, in either phase of his case, always alleging delivery and acceptance of the deed, which, in reality, if there was no express vendor’s lien, would pass the whole title. The contract for the land, and the allegations of the petition, referable thereto, place the title in the purchasers, with an alleged breach and an assertion of the lien, with a prayer for foreclosure, which we think does not sound in specific performance to the extent of constituting the cause of action of that nature as to make the action personal and one not in rem. It is true that the contract is proven to obtain the result, but if we concede that only an equitable vendor’s lien existed, still the whole title is in the purchasers, according to the pleading; and, on account of alleged breach, the establishment of the lien is sought, as well as the debt, the foreclosure, and the deficiency judgment, in its essentials different from the Cavin-Hill Case, wherein title was attempted to be obtained by the assertion of a certain contract, and the pleador joined the ordinary form of trespass to try title with that of special pleading, and the court said the latter prevailed over the former, and which special pleading was clearly one of specific performance.

As to the second position, asserting that exception 12, article 1830, does not apply, appellants invoking the rule of construction that the language, “other lien,” in connection with the word “mortgage” in the statute, means other contractual liens, and not an equitable vendor’s lien, the Supreme Court has ruled against the point. Joiner v. Perkins, 59 Tex. 302. An equitable vendor’s was involved only in that case, not an express lien, and the court said:

“In this case the allegations in the pleadings are sufficient to show that the vendor’s lien has not been waived or abandoned, and if, on the trial, this proves to be the fact, the district court of Lee county has jurisdiction of the case, notwithstanding the fact that the residence of the appellee is in Colorado county.”

. We think the trial court properly retained the cause.

On the issues of delivery and acceptance of the deed, submitted specially by the court and decided in favor of appellee, appellants assign that the evidence is insufficient to sustain the submission. If we properly apprehend the channel in which the trial court and appellee diverted this cause, and correctly conceive the import and scope of the issues as submitted on the question of delivery and acceptance, and grasp the condition of the record bearing upon said issues, we unhesitatingly agree that the evidence is insufficient to support the actual issues as submitted and found.

The trial court instructed the jury, and submitted the special issues, as follows:

“In determining your answers to the issues you will bear in mind the following definitions of the words ‘delivery’ and ‘acceptance’:
“By ‘delivery’ as used herein, is meant a transfer of the possession of property from the vendor to the vendee, and, when so transferred, from the seller to the buyer, or vendor to ven-dee, the title vests and he becomes the owner.
“ ‘Acceptance,’ as used herein, means the receiving of the possession of the deed with the intention of retaining the same, and having the title vest in the grantee as against the grantor.
“ ‘Conditional delivery and acceptance,’ as used herein, means the passing of the deed from the possession of the grantor, but is not to be completed by possession of grantee until the happening of a special event. And if you believe from the evidence that there was a delivery, but that same was conditional [answer] as herein in the negative.
“To be a ‘delivery and acceptance,’ as used herein, it is not necessary that the actual physical possession of the deed to the land in controversy should have been delivered to the defendants, Wm. Capps, W. C. Forbess, or W. B. Forbess, or either of them, but if said deed was placed under their, or either of their, control in such a manner as that such party had absolute control and dominion over same, with the intention, on the part of both the party delivering and the party receiving the same, that same should be a ‘delivery and acceptance’ as here-inbefore defined, then such act would constitute a delivery and acceptance as to such party who had such control and dominion over the same, and if such deed was delivered to one of the defendants, for the use and benefit of all of them, and if such, defendant, or defendants, had knowledge of such delivery and acceptance by one of the said parties, and the conditions and purposes for which same was delivered and accepted, then such party having such knowledge would be bound by such delivery and acceptance.
“Bearing in mind the foregoing definitions, and instructions, you will answer the following:
“Special issue No. 1. Did S. B. Edwards deliver to the defendant W. B. Forbess the deed from D. L. McDonald to Wm. Oapps, W. O. Forbess, and W. B. Forbess, conveying the west half section No. 69, in block M-7, Deaf Smith county, Tex., and did said W. B. Forbess accept same?
“Special issue No. 2. Did the said S. B. Edwards deliver said deed, conveying the above-described land from said D. L. McDonald to Wm. Capps, W. C. Forbess, and W. B. Forbess to W. C. Forbess, and did the said W. C. Forbess accept same?
“Special issue No. 3. Did the said S. B. Edwards deliver said deed conveying the above-described land from D. L. McDonald to Wm. Capps, W. B. Forbess, and W. O. Forbess to Wm. Capps, and did the said Wm. Capps accept same?
“Special issue No. 4. Did the said S. B. Edwards deliver said deed to said land to either of the defendants, Wm. Capps, W. B. Forbess, or W. C. Forbess, for the use and benefit of the other defendants, or either of them, and, if so, did such party accept said deed as hereinbefore defined, and did the parties, or either of them, to whom said deed was not delivered afterwards learn of such delivery and acceptance, and the purposes for which same was so delivered and accepted, if so answer: First. To wliom was such delivery made, and who made such acceptance, if any one? Second. Which of the defendants, if either of them, afterwards learned of such delivery and acceptance?”

The jury ahswered the first three issues affirmatively in favor of Edwards, the ap-pellee, that he delivered the deed to, and the same was accepted by, the parties therein mentioned; and in reply to the fourth issue the jury responded that the deed was delivered to, and accepted by, W. C. and W. B. Forbess, and that Capps afterwards learned of such delivery and acceptan'ce.

(The second sentence of the charge of the court on “conditional delivery and acceptance,” on account of an evident lapse in language, or clerical error, has been the source of bother. We assume that the trial court charged, or meant to charge, the jury in said second sentence that, if there was a conditional delivery and acceptance of the deed to the grantee, to answer the issues submitted in the negative. The word “answer,” in brackets, is inserted by us, and the word “as” should be considered as eliminated, and in that form the instruction on conditional delivery and acceptance has a meaning; otherwise it is meaningless.

The legal term “delivery” when used in reference to a deed, ordinarily implies acceptance. Tate v. Clement, 176 Pa. 550, 35 Atl. 214; but a transfer of manual possession, for examination or other purposes, without acceptance, is merely a tender of a deed. Same case, supra.

It is to be noted the trial court said:

“ ‘Acceptance,’ as used herein, means the receiving of the possession of the deed with the intention of retaining the same, and having the title vest in the grantee as against the grantor.”

It is evident to us that the trial court narrowed the issues of delivery and acceptance, and the intention of the parties, to the time of “receiving the possession of the deed.” When the jury answered that Edwards delivered the deed to the defendants mentioned in each of the three special issues, and responded that the defendants therein designated accepted said deed, such acceptance necessarily, under the charge of the court, meant the receiving of the possession of the deed, with the intention of retaining the same and having the title vest, at the time received from Edwards in Ft. Worth, and a careful perusal of the whole instruction rather emphasises the limitations of such charge.

The alleged purchasers of this land did not receive this deed at that time with the intention of retaining the same and vesting title then—they received this deed with the intention of retaining the same and having the title vested in them, if the abstract exhibited a merchantable title—hence there could not have been anything, at that time, but a conditional delivery and acceptance, which, if existed, the jury were required to answer in favor of appellants. The ap-pellee, Edwards, testified that he handed the deed, abstract, and notes to one or more of the defendants at Ft. Worth, approximating the date, upon his visit there for that purpose.

Edwards testified that of course he ex-' peeted the parties to make an examination of the abstract; hence he could not have intended the change of manual possession of the deed to have been anything more than a mere tender of the same for the inspection and examination of the papers. We do not believe we are concerned in the least with the question, which seems to be tendered between the parties in their briefs, whether the testimony is sufficient to show, by subsequent dealings and negotiations between the parties and on account of certain subsequent expressions claimed to have been made, that the purchasers waived the provisions of the contract, and thereafter retained the deed as a conveyance of the land, and by such acts accepted the same. Such an issue was not presented to the jury, and hence is not properly presented to this court.

“A delivery of a deed for inspection, or a delivery to the grantee or his agent to be held while the grantee has under consideration the proposition whether he shall accept it or not, is not a valid delivery.” Devlin on Deeds (3d Ed.) § 271, p. 417, and cases cited.

The judge in this case recites that the plaintiff Edwards “dismissed and abandoned in open court all issues raised and tendered by his petition save and except those submitted by the above special issues, and the duty of the defendants to pay the plaintiff the purchase money as charged and prayed for in said petition,” and the jury were instructed, at the request of both parties, that they could not consider any evidence, or testimony with reference to the title to the land for the purpose of determining the intent of the parties in delivering and accepting the deed. We are not concerned on this appeal in the manner of its presentation, whether the abstract exhibited a merchantable or nonmerchantable title; that issue is waived. Neither can we assist the judgment of the court by presuming that he found other issues upon the testimony for the purpose of sustaining said judgment. The appellee and the court have narrowed the issues and abridged our power in that respect, even if we were to consider the sufficiency of the evidence to sustain the judgment on the presumptive finding of the court on other issues.

We have repeatedly and carefully read' this statement of facts, and are confining the scope of tMs opinion entirely to the issues as submitted and the evidence as bearing upon the same, upon the question of sufficiency. We note, of course, the testimony of Edwards of a remark that was made in the restaurant at Et. Worth by one of the parties to him to sell the land at $65 per acre. The abstract had not been examined, and the parties had a right to presume that they were getting a good title to the property. Of course it is true that subsequent manifestations and subsequent acts may sometimes be referable to an antecedent condition for the purpose of proving intention and a mental attitude at such previous time, but without an analysis in detail of our reasons, and the testimony, we are convinced that at the time the deed, abstract, and notes were handed by Edwards to the defendants at Et. Worth, the parties did not consider, nor intend, an unconditional delivery and acceptance of the deed.

In view of this discussion, the ruling upon other assignments becomes immaterial.

The case is reversed and remanded.
      «StscFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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


author: CARL, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. CHOJNACKY.
    (No. 5514.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.
    On Motion for Rehearing, Dec. 1, 1915.)
    1. Master and Servant <§=»278 — Injuries to Servant — Negligence — Sufficiency of Evidence.
    In an action by a railroad employé for injuries received when a flame, charged to have been caused by an exploding railroad torpedo, darted out from the furnace in which he was burning rubbish, injuring his eyes, evidence held insufficient to sustain verdict for plaintiff by showing failure of defendant to perform its duty to him, proximately resulting in the injury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]
    2. Master and Servant <&wkey;265 — Injuries to Servant-Res Ipsa Loquitur.
    Where a railroad station employé was injured when burning rubbish in the station furnace by the alleged explosion of a torpedo, causing flame to dart from the door, injuring liis eyes, the case was not proper for the application of the maxim res ipsa loquitur to establish his case, since, if the maxim proved that there was a torpedo in the furnace, plaintiff was still under necessity to show that the railroad’s negligence caused it to be there.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. <&wkey;265.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by John Ohojnaeky against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellant. Don A. Bliss and T. T. Vander-Hoeven, both of San Antonio, for appellee.

      Applieation for writ of error pending in Supreme Court.

   CARL, J.

This is the second time this case has been before this court. The former opinion will be found in 163 S. W. 1011.

Appellee, John Ohojnaeky, sued the Galveston, Harrisburg & San Antonio Railway Company for damages on account of injuries received by him while burning trash, paper, etc., in a stove in the basement of the depot of appellant, in San Antonio, during September, 1912. Appellee was an assistant gardener, working under Harry Adams, and his duties were to assist in the garden work on the grounds, look after the flowers, and to keep the park, or garden, clean of papers, peanut hulls, banana peels, etc. At the time of the accident he was putting an armful of papers in the stove, when a flame came out at the door and struck him in the face, injuring his eyes.

In substance, the cause of action was predicated upon two alleged acts of negligence, viz.: (1) That fusees or signals used by trainmen had been negligently scattered or left in the refuse on the premises, and that they were dangerous, and probably caused an alleged explosion in the stove, which threw the flame out into appellee’s face as he was putting the papers in the stove. This ground, however, was eliminated by the trial court by failing to submit it to the jury, and no objection was preserved thereto by appellee. (2) That the defendant’s employes, agents, and servants had negligently scattered and left railroad torpedoes in the refuse swept by its porters from defendant’s closets, baggage rooms, and offices into the basement of the depot, and which was burned by appellee in the stove, or furnace. In other words, that the master had not used ordinary care to furnish the servant a reasonably safe place in which to perform his duties. It is alleged that these torpedoes and other compositions were explosive and dangerous when subjected to heat, and would explode “with violence, force, and flame,” and that this was known to the defendant, or should have been known. And, further, that the defendant knew, or should have known, that such dangerous explosives and combustibles were being negligently scattered and left in the refuse, and if ordinary care had been exercised in this respect, thie plaintiff! would not have been injured. Any further statement of the case which may be necessary will appear in the discussion which follows.

The first assignment of error attacks the verdict and judgment as being unsupported by the pleadings, the evidence, and the court’s charge to the jury, the particulars of that assignment being as follows:

“The plaintiff! based his cause of action upon, and the court’s charge authorized a verdict for plaintiff only in the event of an affirmative finding of, the following facts: (a) That defendant’s employes scattered and left railroad torpedoes in the refuse swept by its porters and sweepers from defendant’s closets, baggage rooms, and offices, and burned by plaintiff in defendant’s furnace; (b) that such torpedoes were explosive and dangerous; (c) that in so scattering and leaving such torpedoes -in such refuse the defendant failed to exercise ordinary and reasonable care for the safety of plaintiff in the discharge of bis duties; (d) that while plaintiff was burning such refuse in said furnace there was an explosion of torpedoes, which bad been so scattered and left in such refuse and placed in said furnace; and, (e) that such explosion of such torpedoes directly caused the alleged injury to plaintiff’s eyes. Upon the trial of the case there was no testimony showing, or from which the jury could legally infer, all or any of such facts, while the uncontroverted testimony of all witnesses testifying upon this issue showed that neither of such facts, as alleged and submitted in the court’s charge, existed.”

This makes it necessary for ns to state in detail the substance of the evidence, in its most favorable light, in behalf of appellee.

Appellee, Ohojnacky, testified that he was an assistant gardener; that Harry Adams was his superior; that before the accident occurred he had found there in the trash some kind of candle sticks. He says that about three months after that he found some torpedoes in there, and threw them in the trash can outside of the building, and that when he found this second batch he told Harry Adams about it. This was several months before the accident happened. On the morning of the accident he saw no torpedoes, and says that he does not know what it was that made the noise in the furnace when he was injured. “I saw nothing in the stuff I was burning to make such a noise as that.” The noise which he testified he heard was a kind of “chooh,” or “tschoog.” During all the time that he had been working there at the station and burning stuff in the furnace he says that he had discovered some of these things three times. The first time, something he speaks of as candle sticks, or something like that, and twice that he says he found torpedoes in the trash that was burning in the furnace. One time, he says, he found three, and then again some more, but he does not remember how many. Those three times are the only times that he ever found anything of this kind. In the first lot he says he found three torpedoes, and several months after, he found the second lot. He does not remember how long before the accident it was that he found the last lot, but says it was several months before, some three or four months, may be more, or less. He says that he was shoveling up the trash and putting it in the stove, where he had an “awfully hot fire”; that the furnace was nearly full, there being only a small place at the right-hand side of the door which was not filled with the burning papers, etc. But, he says that Harry Adams, his foreman came in and saw him using the shovel, and told him that was- not the way to do, to use his hands, to which he demurred. Adams, however, he says, jerked the shovel out of his hands, threw it in the comer of the room, and grabbed up some of the trash to show him ■ how to do it, and told him to do it that way, using some language towards him not suitable here to repeat. Adams then went away, and a plumber, who had come in to cut off the water in order to do some plumbing up stairs, was the only person in the room at the time of the accident, other than the plaintiff below. Ohojnacky says that when he put this armful of trash in the stove he had his face very close to the door. At first, he says within six inches, and then again he says within about a foot, and while so placing the stuff in the stove he heard the noise above described, and the flames shot out, striking him in the face and injuring his eyes. He says that the noise he heard was not loud, about like a man talking, and not so loud as a firecracker, but that it could be heard 12 or 15 feet away. He does not undertake to say what it was that made the noise, nor does he know that it was a torpedo.

Fritz Dethlefsen, the plumber who was cutting off the water at the time of the injury, says that he was standing on a box where he had to reach up to cut off the water near the ceiling, when it occurred, and was somewhere about 8 or 10 feet from Ohoj-nacky.

“I bad finished my work and just turned around, and just as I turned around I seen him fall — time I seen the flame bit him and he fell back; just as I turned around to step off of the box, I saw a small flame come out of the door of the furnace into his face, yes, and he just fell back, and held his hands over his eyes. When I turned around and saw him when this happened, he was just kneeling down, sorter, leaning over; he had just grabbed a handful of paper and just put the paper into the furnace, was putting the paper into the furnace when I saw a flame come out at the time into his face; no, his face wasn’t very close to that door; it was about a foot away from the door. * * * There was nothing came out of that door, except just simply that flame, that I saw. Yes, there-was a big fire burning in the furnace. * * * I heard no noise; yes, my hearing is normal, all right; I was about 8 feet from him. * * * There was no one else there. * * * I don’t know whether that was a flame from the paper, a torpedo, or what; no, sir.”

This witness, being the only one there, took Ohojnacky over to the drug store. The only other person who attempted to say that he ever saw any torpedoes around there is one R. W. Taylor, who runs a moving wagon, and claims to have found a torpedo at some time, he knows not when, right in front of where the closet is; where you come out of the closet. He would not even hazard a guess as to how long prior to the accident this occurred. This was out south of the baggage room, just before you get to the express office, and is a considerable distance from where the accident occurred.

The witness, George King, testified that when torpedoes are thrown into the fire they explode with a puffing noise, not as loud, the witness thought, as a man would talk. He said that he had seen a number of torpedoes thrown into the fire and knew the effect thereof.

J. L. Price, a switchman for a number of years on the railroad, testified that when a torpedo is thrown into the fire it explodes with a noise about like a firecracker, probably a little louder. He had tried the experiment himself.

The employes of the railroad company testified that the torpedoes used by the company — and they use a great many — were kept under lock and key, some 200 or 300 feet from where the accident occurred, in what is referred to as a “shack.”

Appellee says that on one occasion he found some torpedoes, and Harry Adams told him to throw them in the fire and burn them up, but he refused to do this, giving as his reason that they were dangerous, and says that he took them and put them away.

“Before Harry Adams told me what they were, I didn’t know. I told him to go up stairs and tell them people to be careful and not throw them around, because they are dangerous. He says its none of his business, he says, T can’t help you in that,’ he says, ‘the big boss says to burn them.’ ”

There is evidence in the record to show that a stove, when stopped up, or when the draft is cut off, will cause the flames to shoot out at the door when opened, especially when there is a hot fire in the stove such as was in this furnace upon this occasion.

As to his injuries, appellee testified that his eyes were so that he could not see out of them for a good long while; that they pained him a great deal; that he had been under the treatment of a doctor for a good long while, at an expense of about $100; and that even now he cannot see well, a man appearing to him something like a bear.

Dr. Gwinn, an eye specialist, testified that he was under his treatment about six weeks, and he discharged him as cured, and says that his eyes at that time appeared to be normal.

Appellee contends upon this trial that he never put papers in the coal bin, but that other employes did, and there is where he was getting the papers which he was placing in the fire at the time of the accident. On the former trial he had testified that the coal bin had been filled with coal, but this time he says that was a mistake; that the interpreter did not properly interpret to him his deposition as given upon the former trial, and likewise one of his attorneys explains in his testimony that he did not understand the oral statements of appellee at the time of the other trial, or until he drew up the second amended petition, upon which this case was tried.

So, when analyzed, appellee’s case is this: He is injured by a flame from the furnace striking him in the face, without anything except surmise upon which to base the conclusion that a torpedo was in the trash put in the furnace. As proof that there was a torpedo in the trash, he says that some months prior thereto he had/found some of them, and knew they were dangerous when thrown in the fire. So much so, indeed, that he refused to follow his foreman Harry Adams’ order, to throw them in the fire. He heard some kind of “chooh” noise at the time the flame licked out and struck him in the face. There is no testimony that any servant or employé of the railway company put any torpedoes in the trash at any time. Those found by him could just as easily have been put there by any one else. This is especially true when we consider that every employé of the company who testified denied ever having thrown any torpedoes in the trash, or that they had ever seen any lying around there. On the contrary, they testified that the company kept them under lock and key, about 200 feet away from the place of the accident.

But if we give full credence to the statement of appellee that he found torpedoes there and told Harry Adams about it, he likewise says that he knew they were dangerous, and so refused to obey orders by throwing them into the fire. He was in a better position to know what was in the trash than any one else, for it was his business to gather it up and burn it or put it in the place provided. If he did know that such things were in the trash; that he was expected to burn them, and did not quit, but went ahead at the same work after, as he says, Adams told him it was the order of the “big boss” that he burn them, it looks very much like he assumed the risk.

Facts may be established by circumstantial evidence, it is true, but where such testimony is relied upon it should be much more cogent than that contained in this record. We fully agree with the Supreme Court, speaking through Judge Brown, when it said:

“However, it is well settled by authority that the circumstances attending the injury may be sufficient to establish the fact of negligence without any direct proof thereof.” McCray v. G., H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95.

Also T. & N. O. Ry. Co. v. Crowder, 63 Tex. 504. In the case first cited, McCray was sitting on one of several cars loaded with steel rails. The train was going about 25 miles per hour, when one of the rails fell from the flat car in front of the car upon which McCray was riding. One end of the rail struck the ground, and the other end was resting on the side of the car, and as a witness said, “swept the whole north side of the train,” striking McCray and killing him. Upon reaching San Antonio the standards were all in place and were in good condition, etc. It will easily be seen that the case at bar is quite different. Here we must establish by circumstantial evidence, weak within itself: First, that there was a torpedo in the furnace that caused the injury; and, second, that it was negligently left in the trash, or permitted to be there, by some employé who had failed to perform a duty. It is just as reasonable to suppose that the flame was caused to shoot out by the draft having been cut off or stopped up. We think it is a matter of common knowledge that stoves do those things. But be that as it may, the duty rests upon the plaintiff to establish his case by competent testimony. He must plead and prove that the company owed him a duty; that it failed to perform that duty; and that such failure to perform that duty was the proximate cause of his injury. This we think he has wholly failed to do. Railway Co. v. Jones, 103 Tex. 187, 125 S. W. 309; Railway Co. v. Cason, 129 S. W. 394; Railway Co. v. Chojnacky, 163 S. W. 1011.

But appellee invokes the doctrine symbolized by the maxim, res ipsa loquitur, which we understand means that the thing speaks for itself, or is a short way of saying that the' circumstances attendant upon an accident are, of themselves, of such a character as to justify a jury in inferring negligence as the cause of that accident.

“The doctrine which it embodies, though correct in itself, may be said to be applicable to two classes of cases, to wit: ‘Eirst, when the relation of carrier and passenger exists, and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition, or event, that is in its very nature so obviously destructive of person or property, and is so tortious in its quality, as in the first instance, at least, to permit no inference save that of negligence on the part of the person in control of the injurious agency.’ ”

For instance, where a section hand stepped back 5 or 6 feet, with others, to permit a train to pass, a big lump of coal fell off and hit him on the neck, from which his injuries resulted. There was nothing to show what caused the coal to fall off. Justice Neill, speaking for this court (G., C. & S. F. Ry. Co. v. Wood, 63 S. W. 165) said:

“There must be reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords •reasonable evidence, in the absence of an explanation by defendant, that the accident arose from want of care” (citing McCray v. Railway, supra).

But there the employé had the lump of coal falling with which to start. If it were proved that there was a torpedo in the furnace, it would still be necessary to show that the negligence of the defendant’s employés caused it to be there.

It occurs to us that the evidence is totally insufficient to support the judgment. This case has been tried twice and appears to have been fully developed, and it would be idle to send it back again for trial. Therefore the judgment of the trial court is reversed and judgment is here rendered that the plaintiff below take nothing by reason of this suit, and that he pay the costs.

Reversed and rendered.

On Motion for Rehearing.

Appellee insists that we have not found' sufficient facts, and have found some incorrectly. We used the term “stove” in some places when referring to the place where the papers were being burned, but we should have said “furnace.” The word “fusee” was not used in plaintiff’s petition, but the things he charges were left in the refuse which he was burning were:

“What are called torpedoes and other compositions, the names and exact nature of which are unknown to plaintiff, but all of which are explosive and dangerous,” etc.

The witness, Dethlefsen, said the cut-off upon which he was working at the time of the injury was about 12 feet from the front door of the furnace, and that the cut-off was about 1 foot from the ceiling, and he had gotten upon a box in order to get to it. So he (Dethlefsen) was anywhere from 8 to 12 feet from the front of the furnace at the time of the injury.

Several witnesses testified, in substance* that they had kept a lookout for torpedoes when sweeping, but said they had not been instructed to look for them. Charles Stevens denied that he had ever found any torpedoes, but in answer to a question formed as follows: “Q. You always looked to see if there was any torpedoes?” he said: “A. Yes, sir: always picked them up; always have to see anything like that I always picked it up; always looked closely to see whether there was any there.”

This court is not unmindful of the seriousness of a reversal and rendition of judgment, neither is it unmindful of the serious and far-reaching effect of a court decision which would transfer a large sum of money from the railway company upon a mere surmise of wrong on its part. Appellee has had his case ably presented, and after two trials and two appeals it is not reasonable to presume that there are any matters of consequence which could be presented that have not already been developed. And with all this there is no sufficient showing that the injury of appellee was caused by the wrong or negligence of appellant. Since this is our view, the motion for rehearing is overruled*
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