author: PHILLIPS, J.

text:
    MILAM COUNTY OIL MILL CO. et al. v. BASS et al.
    (Supreme Court of Texas.
    Feb. 18, 1914.)
    Courts (§ 207) — Prohibition — Authority to Issue.
    Since the authority of this court to issue a writ of prohibition is, by the Constitution and statute, limited to the enforcement of its jurisdiction, it cannot issue the writ to restrain the prosecution of a suit merely because the subject-matter of such suit is concluded by a prior judgment of this court, since such suit did not interfere with the enforcement of the prior judgment, and therefore did not invade the jurisdiction of the court.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. § 207 ; Prohibition, Cent. Dig. § 65.]
    Application for writ of prohibition by Mi-lam County Oil Mill Company and others against Anna F. Bass and others.
    Writ denied.
    Etheridge & McCormick, of Dallas, T. S. Hendersón, of Cameron, Wear & Frazier, of Hillsboro, and Crane & Crane, of Dallas, for relators. Sleeper, Boynton & Kendall, of Waco, for respondents.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

The relators in this proceeding pray for a writ of prohibition to prevent the prosecution of a certain suit instituted in the district court of Hill county on October 3, 1913, by certain of the respondents, upon the ground that it is but an attempt to relitigate matters concluded under the final decree of this court in the case of McCord v. Sprinkel, 105 Tex. 150, 157, 141 S. W. 945, 145 S. W. 903. By that decree as originally rendered A. P. McCord, one of the relators here, was removed as assignee of Crawford & Crawford, and the district court of Milam county directed to appoint a receiver of their estate, who should take charge of its assets and demand and receive of Mc-Cord certain property involved in the litigation ; it being also provided in the decree that McCord and the Milam County Oil Mill Company, another of the relators and a party to that suit, might pay the debts of the accepting creditors of Crawford & Crawford and all costs and charges against the estate, and receive a discharge of liability to it, which, if done, should be certified to this court. Upon the rendition of that decree, R.. L. Batte, a purchaser of certain of the properties involved in the suit and another of the relators here, McCord, and the Milam County Oil Mill Company, filed a motion asking for its modification. The respondents, who, as the heirs of the members of the firm of Crawford & Crawford, have instituted the suit in the district court of Hill county against the relators, while not parties in the case of McCord v. Sprinkel, appeared in this court and opposed this motion, alleging, substantially as they have in the suit in the district court of Hill county, the existence of a large surplus of the assigned estate of Crawford & Crawford to which they were entitled, and praying that the decree of the court stand as entered, -to the end that through the receivership they might reach the surplus remaining after the payment of the lawful claims against the estate. The court upon hearing the motion and the opposition modified its decree, leaving the appointment of a receiver to the discretion of the district court, and directing the settlement of the estate in accordance with its opinion.

Upon the transmission of the mandate of this court, the district court of Milam county, on May 23, 1912, in the main cause of Nabours v. McCord, of which McCord v. Sprinkel in this court was a continuation, entered an order directing that McCord and the Milam County Oil Mill Company deposit in its registry the sum of $1,000, to be paid out by the-clerk, to the extent necessary, to the unpaid accepting creditors of Crawford & Crawford and Milam County Bank, and that they also tender a sufficient bond in an equal amount conditioned for the prompt payment upon presentation of every unpaid claim of accepting creditors of such assigned estate, as well as unpaid costs and charges. On the same day McCord and the mill company made known to the district court that they had complied with its decree by the payment in full of the claims of all accepting creditors of the estate, except those of a certain number whose whereabouts they had ■been unable to discover, and by making the cash deposit and tendering the bond required; whereupon that court rendered its further judgment, reciting such fact, finding that there was no necessity for the appointment of a receiver of the estate, and decreeing McCord’s and the mill company’s full discharge as against all parties to the cause from any further liability to the estate, except that, should the sum deposited by them in the court’s registry prove insufficient, they should upon notification to that effect make such additional deposit as might be necessary to a complete and final distribution of-the fund in accordance with the decree of this court — a copy of which decree of the district court was duly filed in this court.

The plaintiffs in the suit which has been instituted in the district court of Hill county, constituting all of the respondents here except the judge of that court, were not parties of record in the district court of Milam county in the cause of Nabours v. McCord, but intervened therein prior to the rendition of the decrees of May 23, 1912, and after the case of McCord v. Sprinkel was remanded by this court, tendering in substance the same matters alleged in their suit in the Hill county district court, which intervention was withdrawn by them without prejudice on the same day those decrees were rendered without any exception thereto being reserved.

The proposition upon which the relators predicate their right to the writ of prohibition, in substance, is that though the suit pending in the district court of Hill county against McCord, now a resident of that county, and Henderson, as assignees of the estate of Crawford & Crawford, and the other relators sought to be held jointly liable with them, was brought by the plaintiffs therein as the heirs of Wilbur P. Crawford and Prank M. Crawford, to recover what is alleged to be due them as the surplus of the assigned estate of that firm remaining after the payment of the claims of creditors and other lawful charges, and for property of the estate wrongfully converted, any such cause of action is concluded by the judgments of the district court of Milam county of May 23, 1912, above recited, rendered in pursuance of the decree of this court in McCord v. Sprinkel, that “McCord and the mill company may pay the debts of the accepting creditors and all costs and charges against said estate and receive a discharge from liability to said estate” ; that the respondents who have instituted that suit made themselves parties in this court in McCord v. Sprinkel by their opposition to the motion of McCord and the mill company, and are bound by its decree; that the efféet of that decree was to remit them to the district court of Milam county for the prosecution in Nabours v. McCord, therein pending, of such rights as they are now asserting in the Hill county district court suit, and as they were not so prosecuted all such alleged rights are now effectually barred; and that the suit in question amounts to such disregard of the judgment of this court in McCord v. Sprinkel as to warrant our issuance of the writ.

This court is not invested with any power of general superintendence of the inferior courts of the state; its control of their proceedings is purely appellate in its nature, with certain well-defined exceptions which are unrelated to the present case; and its authority to issue the writ of prohibition is by the Constitution and the statute limited to the enforcement of its own jurisdiction. If it be assumed, as the relators contend and as we may assume for the present purpose, though we express no opinion upon the questions since it would be improper for us to do so under our disposition of the ease, that the district court of Hill county is without jurisdiction of the pending suit, and that our decree in McCord v. Sprinkel and the judgment of the district court of Milam county rendered in pursuance of it, are effectual as a bar to the cause of action asserted in such suit, the inquiry still arises as to whether its prosecution violates any jurisdiction possessed by this court in the premises, rendering the writ necessary for its exercise and enforcement.

The power to enforce its judgments necessarily inheres in a court as an essential attribute of its jurisdiction, but there is a manifest difference between the enforcement of a judgment and the prevention of a suit which makes no attempt to obstruct its execution, but denies its conclusiveness upon what is alleged to be another cause of action. One is the exercise of the jurisdiction under which the court was empowered to render the judgment. The other involves the use of authority in excess of any power necessary to its enforcement, exerted not essentially in aid of the judgment, but to afford immunity from litigation. A valid judgment should be effective to secure the benefits that it decrees; and its active office therefore continues for the full accomplishment of that result. Any interference with its enforcement or the due exercise of rights which it establishes would amount to a violation of the jurisdiction of the court as a hindrance to its power to put the judgment into effect and preserve its operative force. But to disregard a judgment through the institution of a suit is not necessarily to obstruct its operatibn. True it may draw the judgment into question through the denial of its effect, and the judgment may be so conclusive as to render the suit a groundless one; but the jurisdiction of the court is not invaded by the mere assertion of rights through such method, even in contravention of the judgment, so long as its operation is left unimpeded. If a court should entertain such a suit, and through want of jurisdiction- or failure to accord to the judgment its legal' effect render an erroneous decree, the remedy provided by our system for its revision and the readjudication, if needs he, of the eon-clusiveness of the judgment, is an appeal.

We are not insensible to the hardship that such cases may sometimes impose, nor to the-forcible argument of the able counsel for relators that litigation in relation to this estate, so prolonged as its history discloses, should end; but such considerations afford in themselves no ground for the closing of the doors of the courts to suits, however ill founded, brought in evident good faith. The-disposition of men.to assert what they conceive to be their rights may sometimes-amount to a weakness, though generally it proceeds from the hardy virtue of independence; and, while the courts should lend all their powers to the discouragement of differences, yet the fact remains that their essential functions are for the determination of disputes.

The power of a court to enforce its jurisdiction does not include an authority to prevent the prosecution of any suit to which a judgment of the court may be an effectual-bar, but which, beyond presenting an issue as to the conclusiveness of the judgment upon the asserted cause of action, makes no attempt to disturb it, or to interfere with its execution or the exercise of rights established by it, as such a suit does not conflict with the exercise of that power which constitutes jurisdiction in the court, the power to hear and determine the cause and enforce the judgment rendered, and therefore does not violate its jurisdiction. The assumption of such right would invest a court not merely with the control of its own judgments and authority to enforce its jurisdiction, but with a further power to govern other courts in the exercise of their lawful jurisdiction; and the result would be that the issue of the eon-clusiveness of a judgment upon what is urged as a distinct cause of action could never be determined except by the court that rendered it. The proper test of the question therefore is, not whether the suit recognizes or repudiates the effect of the judgment, since that does not necessarily involve the jurisdiction of the court, but whether it amounts to an interference with its due enforcement and therefore invades a jurisdiction it is forbidden to trench upon. A careful consideration of the case has induced the conclusion that the pending suit in the district court of Hill county presents no interference with the decree of this court in Mc-Cord v. Sprinkel or its execution, and that the writ should be denied.

The eases of Hovey v. Shepherd, 105 Texas, 237, 147 S. W. 224, and Conley v. Anderson, 164 S. W. 965, decided in vacation, are not in opposition to this view. In both of them the suits prohibited directly attempted to obstruct the execution of judgments of this court.

Writ denied.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte ZUCCARO.
    (Supreme Court of Texas.
    Jan. 28, 1914.)
    1. Injunction (§ 1) — Classification—“Restraining Order.”
    Under the Texas practice, injunctions are classified: First, as a “restraining order,” which is an interlocutory order made upon application for an injunction as a part of a motion for the preliminary injunction, by which a party is restrained pending the hearing of the motion; second, an order which operates, unless dissolved by an interlocutory order, until the final hearing; and, third, a perpetual injunction, which can only be ordered upon final decree.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 1; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 7, pp. 6183, 6184.]
    2. Injunction (§ 150) — 'Temporary Restraining Order.
    On January 27th an injunction suit was instituted by the county attorney praying for a temporary restraining order enjoining defendants from permitting moving picture shows being opened on Sunday, and that the cause be set for hearing, and that upon final hearing the temporary restraining order be made permanent, and the petition was presented on the same day to the judge of the district court, who indorsed thereon the following fiat: “Petition granted and clerk of district court directed to issue and direct to each and every defendant * * * an order enjoining, restraining, and prohibiting them and each of them from opening or permitting to be opened their theaters and moving picture shows on Sunday * * ⅜ until further orders of this court; this cause set down for hearing Saturday, February 3d.” Held, that the order was only a temporary restraining order and expired on the date of the hearing, unless extended, and hence a judgment of contempt for its alleged violation after such date was void.
    [Ed. Note. — For- other cases, see Injunction, Cent. Dig. § 335; Dec. Dig. § 150.]
    3. Injunction (§ 152) — Final Hearing..
    Where a petition for an injunction was presented to the circuit court on January 27, 1912, the cause could not have come on for final hearing until the succeeding term unless an appearance was entered, so that where none was entered, it could not be set for final hearing on February 3, 1912, so that an order setting it for hearing on that date could only have been intended to determine whether a temporary injunction should be issued operative until final hearing.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. § 152.]
    Original proceedings on habeas corpus by Andrew Zuccaro against W. M. Rea, Sheriff of Tarrant County.
    Relator discharged.
    See, also,' 162 S. W. 844.
    Wray & Mayer and Baskin, Dodge & East-us, all of Ft. Worth, for relator.

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

The writ of habeas corpus was issued in this proceeding upon the application of the relator complaining that he was restrained of his liberty by the sheriff of Tarrant county in virtue of a commitment issued out of the district court of that county upon a judgment convicting him of contempt of court in disobeying an injunction previously issued.

On January 27, 1912, the county attorney of Tarrant county instituted in the Sixty-Seventh district court of that county an injunction suit in behalf of the state of Texas against the relator and others, praying for the issuance of a temporary restraining order enjoining the defendants from opening, or permitting to be opened, for amusement their theaters and moving picture shows on Sunday; that the cause be set down for hearing; and that upon final hearing the temporary restraining order be made permanent. The petition was presented on the same day to the Honorable W. T. Simmons, judge of the court, who thereupon indorsed thereon the following fiat: “Petition granted and clerk of district court of Tarrant county, Tex., directed to issue and direct to each and every defendant named in this petition an order enjoining, restraining, and prohibiting them and each of them from opening or permitting to be open their theaters and moving picture shows, respectively, on Sunday, for public amusement, from giving therein any performances for public amusement, and from charging a fee for admission thereto or from doing any of said acts until further orders of this court. This cause set down for hearing Saturday, February 3, 1912, at 2 o’clock p. m., and clerk directed to issue notice hereof to defendants and each of them.” A notice as provided in the fiat was issued and served upon the relator, but it appears that no other process has ever been issued in the cause.

On November 24, 1913, the Honorable Marvin H. Brown, judge of the court referred to, without any motion or complaint charging the relator with a violation of the alleged injunction, issued an order to.the clerk of the court to cite the relator, among others, for contempt of the court for violation of this injunction. Upon hearing, the relator was adjudged in contempt, a fine assessed against him, together with imprisonment in the county jail for three days and until the fine should be paid. The relator has previously presented his petition for the writ to the honorable Court of Criminal Appeals, which declined to entertain it upon jurisdictional grounds, whereupon, on application to this court, our jurisdiction being undoubted, it was ordered that the writ issue.

It appears from the record submitted to us that no other order in respect to the injunction has ever been made in the cause referred to than that embodied in the fiat of the judge above quoted; that no hearing was^had on February 3, 1912, the date fixed in the fiat therefor; that the case has never been tried, and no other orders have ever been made therein. The fiat constitutes the sole basis for the injunction claimed to have been violated, and must alone be looked to for the purpose of determining whether any injunction was in force, for the violation of which the contempt proceeding would properly lie.

If the order embodied in the fiat amounted only to a temporary restraining order, provisional in its nature and limited in its duration to the date appointed for a hearing, it is manifest that the relator could not be competently held in contempt for acts committed after such date. If the order, on the other hand, possessed the force of a continuing injunction, effective until final hearing of the cause unless dissolved in an appropriate proceeding, he of course remained subject to the restraints it imposed.

In the opinion of this court, delivered by Chief Justice Gaines, in Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, the classification of injunctions under our practice is thus stated: “(1) A restraining order, which is defined to be: ‘A restraining order is an interlocutory order made by a court of equity upon an application for an injunction and as part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion.’ (2) One which is intended to operate, and which does operate unless dissolved by an interlocutory order, until the final hearing. And (3) a perpetual injunction which can be properly ordered only upon a final decree.” In that case the district judge had ordered, by fiat indorsed upon the plaintiff’s petition, that the defendants appear upon a date named to show cause why permanent injunction should not issue, and that a restraining order issue to the defendants as prayed for, ponding such hearing. It was held that the order issued upon the authority of the fiat was only temporary in its character and expired upon the date appointed for the hearing.

The fiat here involved is not in the same terms as the one considered in that' case, but there can be no doubt under this authority that the only effect of the order was to temporarily enjoin the defendants, and, there having been no continuance of the injunction, it expired on the date appointed for the hearing.

The court appears to have been in session on January 27, 1912, the date the petition was presented and the order made. The cause could not, of course, have come on for final hearing until the succeeding term, unless an appearance was entered, which was not done. Accordingly it was not subject to be finally heard on February' 3, 1912; and, in ordering that “this cause (is) set down for hearing” for that date, the judge could not have intended that any other hearing be had than one for the purpose of determining whether an injunction should issue, operative until the final hearing. This must be true, since he was without authority to try the cause on that date, which was only seven days subsequent to the date of his order; and, unless the hearing thus appointed was for the purpose stated, his ordering a hearing for such daté was a vain act. If the hearing was fixed for the purpose of determining whether an injunction should issue, and such it seems to us is the obvious effect of the order, it is clear that the injunction originally ordered was provisional in its nature, and was intended to be operative only until the date named for the hearing. Otherwise there was no occasion for the hearing.

It is manifest, under the record presented to us, that the injunction expired on February 3, 1912. The judgment of contempt, based upon such injunction, for an alleged violation long subsequent to the date of its expiration, was therefore void and of no effect; and the relator should be discharged. It is unnecessary to consider the other questions presented under the application.

Relator discharged.


text:
    Ex parte MUSSETT.
    (Supreme Court of Texas.
    Jan. 28, 1914.)
    Habeas corpus proceedings by Charles Mussett against W. M. Rea, Sheriff of Tarrant County.
    Relator discharged.
    See, also, 162 S. W. 846.
    Wray & Mayer, of Ft. Worth, for relator.
   PHILLIPS, J.

The relator in this proceeding was by the honorable district court of Tarrant county for the Sixty-Seventh district adjudged in contempt of court for an alleged violation of the same injunction considered by us in the case of Ex parte Andrew Zuccaro, 163 S. W. 579, this day decided, in which it was determined that the injunction in question was temporary and provisional in its nature, and expired on February 3, 1912. The violation for which this relator was adjudged in contempt occurred subsequent to that date, and accordingly after the expiration of the injunction. This proceeding is controlled by our decision in that case, and, for the reasons stated in the opinion therein, rendered, the relator is entitled to his discharge.

Relator discharged.


author: BROWN, C.- J.

text:
    FIRST STATE BANK OF ARCHER CITY et al. v. POWER.
    (Supreme Court of Texas.
    Feb. 4, 1914.)
    Courts (§ 247) — Supreme Court — Jurisdiction — Certified Questions.
    Rev. Civ. St. 1911, art. 1521, as amended by Acts 33d Leg. c. 55, provides that the Supreme Court shall have appellate jurisdiction as to questions of law in civil cases arising in the Courts of Civil Appeals, when brought to such courts from final judgments of trial courts in six following subdivisions, and article 1522 declares that all cases mentioned in article 1521 may be carried to the Supreme Court, either by writ of error or certificate of Court of Civil Appeals as otherwise provided, except those mentioned in subdivision 6, which must be presented by application for writ of error, Held, that the Supreme Court’s jurisdiction by certified question is limited to those cases embraced in the first five subdivisions of article 1521, and that a certificate which only presents a case in which the substantive law is involved is unsustainable.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Certified. Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action between the First State Bank of Archer City and others against F. M. Power. From a judgment in favor of the látter, the former appeal. On certified questions from the Court of Civil Appeals.
    Dismissed.
    Hughes & Boone and Mathis & Kay, all of Wichita Falls, for appellants. W. E. Forgy, of Archer, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.

      For other cases see same topic and section NUMBER in' Dec. Dig. & Am. Dig.- Key-No. Series & Rep’r Indexes

   BROWN, C.- J.

As amended by chapter 55, Acts of Regular Session of the Thirty-Third Legislature of Texas, p. 107, of Laws, articles 1521 and 1522, R. S., were amended so as to read as follows:

“Art. 1521. The Supreme Coürt shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following cases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts: (1) Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the delusion. (2) Those-in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the' Supreme Court upon any such question of law. (3) Those involving the validity of statutes. (4) Those involving the revenue laws of the state. ' (5) Those in which the Railroad Commission is a party. (6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.

“Art. 1522. All causes mentioned in article 1521 may be carried to the Supreme Court either by writ of error or by certificate from the Court of Civil Appeals as elsewhere provided, except those mentioned in subdivision 6, which must be presented by application for writ of error.”

This court has jurisdiction by certified question in no case except it be embraced in one of the first five subdivisions of article 1521. In this case there is no disagreement of the judges; no conflict of opinion is shown to exist between the opinion of the court certifying and any other court. Neither is the validity of any statute nor the revenue laws of the state involved. The Railroad Commission is not a party. The certificate presents a case in which “the substantive law” of that case is involved. Such question cannot be certified; it “must be presented by application for writ of error.” The statute is so plain and peremptory that no argument could aid in the application. Lest we be misunderstood, we will say that we do not intend by this statement to hold that a question embraced in one of the first five subdivisions in article 1521 could not be certified as to such question because a question of substantive law was embraced in the same decision.


author: BROWN, C. J.

text:
    GROCE et al. v. WEST LUMBER CO. et al.
    (Supreme Court of Texas.
    Feb, 18, 1914.)
    Courts (§ 247*) — State Courts — Jurisdiction of Texas Supreme Court.
    Under Rev. Civ. St. 1911, arts. 1521, 1522, as amended by Acts 33d Leg. c. 55, respectively providing that the appellate jurisdiction of the' Supreme Court shall extend to those questions of law in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has erroneously declared the substantive law, and that such questions must be presented by application for writ of error, a certificate submitting the substantive law of the case cannot be considered by the Supreme Court; that tribunal having no jurisdiction of such question when presented in that manner.
    TEd. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. big. § 247.*]
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.’
    Action between J. W. Groce and others and the West Humber Company and others. There was a judgment for the former, and the latter appealed to the Court of Civil Appeals. On certified questions.
    Certificate dismissed.
    Marsine Johnson, of Galveston, Barkley & Green, of Houston, and Holshousen & German and J. L. Manry, all of Livingston, for appellants. Baker, Botts, Parker & Gar-wood, of Houston, , and Hill & Hill and J. O. Feagin, all of Livingston, for appellees.
   BROWN, C. J.

Because the certificate submits the substantive law of the case, this court has no jurisdiction, and the certificate is dismissed. See article 1522, c. 55, p. 107, Laws 33d Leg. Also see memorandum opinion in First State Bank of Archer City et al. v. F. M. Power (No. 2628) 163 S. W. 581.


text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. STATE.
    (Supreme Court of Texas.
    Feb. 11, 1914.)
    1. Railroads (§ 44) — Location—Constitutional Provisions — Waiver.
    Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat'without, passing through it and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills, etc., provided such town or its citizens shall grant the right of way and ground for depot purposes, is intended for the benefit of the public desiring to or required to visit the county seat, and is mandatory, so that the duty imposed thereby cannot be waived by the town or its citizens.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.]
    2. Railroads (§ 44) — Location of Road — Right of Wat and Depot Grounds.
    Under Const, art. 10, § 9, requiring every railroad passing within three miles of a county seat to pass through it and maintain a depot therein unless prevented by natural obstacles, provided that the town or its citizens shall grant the right of way and ground for depot purposes, and under Rev. Civ. St. 1911, art. 6549, in similar terms, the duty of the citizens to pay for the right of way and depot grounds does not arise until the railroad has surveyed its line and designated its depot site; and hence their failure to take such action before such survey is no defense to an action to compel a construction of such fine and depot.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec; Dig. § 44.]
    3. Courts (§ 501) — Effect of Appointment on Pending Suit — Federal Receivership —Effect as to State Regulation.
    The federal court’s appointment of a receiver for a railroad, vesting him with the right to possess its property, left the state no power to require it to do any act which would interfere with such possession, but was no obstacle to mandamus from a state court, requiring the corporation to construct a line through a county seat in accordance with the state’s constitutional and statutory provisions, though such receivership should be considered in enforcing obedience.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. § 501.]
    4. Mandamus (§ 132) — Railroads—Performance of Duties.
    Where a railroad company fails and refuses to perform its constitutional and statutory duty to construct a line through a county seat and maintain a depot therein, the district court may award a writ of mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 266, 267; Dec. Dig. § 132.]
    5. Mandamus (§ T78) — Relief Granted — Suspension of Enforcement of Writ.
    Where a receiver has been appointed for a railroad company, rendering it legally impossible for it to comply with mandamus, requiring it to construct a line through a county seat and maintain a depot therein, enforcement should be suspended until conditions so change as to put it in the power of the corporation to obey.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 396-400, 410; Dec. Dig. § 178.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the State of Texas against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment of the Court of Civil Appeals (155 S. W. 561), affirming a judgment of the district court in favor of the state, defendant brings error.
    Reformed and affirmed.
    H. S. Garrett and Hill, Lee & Hill, all of San Angelo, Gregory, Batts & Brooks, of Austin, and Blanks, Collins & Jackson, of San Angelo, for plaintiff in error. B. F. Looney, Atty. Gen., Luther Nickels, Asst. Atty. Gen., and Snodgrass, Dibrell & Snodgrass, of Coleman, for the State.

      tor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series <& Rep’r Indexes

   BROWN, C. J.

For statement of the case we copy from the carefully prepared opinion of Judge Rice as follows:

“This suit was brought by the state of Texas, through its Attorney General, in the district court of Travis county, on the 7th of July, 1911, against appellant for a writ of mandamus or mandatory injunction to compel it to construct its line of railway through the town of Sherwood, the county seat of Irion county, and establish and maintain a depot therein, and for a penalty of $5,000 for having willfully failed and refused to do so, alleging that said company had constructed its road within less than three miles of said town (which is unincorporated, containing about 400 inhabitants) without passing through the same, and without establishing and maintaining a depot therein, as required by the Constitution and laws of this state, the citizens of said town having tendered to it, prior to the construction of its road, a practicable right of way through its limits, and sufficient grounds for ordinary depot purposes therein; further alleging that there were no natural obstacles to prevent said railroad from passing through same, such as streams, hills, or mountains, and that the state of Texas and the people thereof have an interest in and right to have said company obey and comply with the provisions of the Constitution and laws of tMs state, and that they have an interest in having a depot located and maintained in said town for the convenience and transaction of their business with the county officials of said county, and in attending to and transacting business in and with the various courts in and for said county, and for receiving and delivering passengers and freight thereat. And that such failure on the part of appellant to comply with the Constitution and laws of the state in this respect will subject the people of the state to great inconvenience and expense that they would not otherwise have been subjected to, if appellant should construct a railway through said town and establish and maintain a depot therein.

“Prior to the institution of this suit, certain of the citizens of Irion county, residents of Sherwood, instituted a suit in the district court of Tom Green county against appellant, which is still pending therein, to compel it to construct its roadway through said town of Sherwood and establish and maintain a depot therein; the allegations of the petition in which case are, in many respects, similar to those in the instant case, and the pendency of which suit is pleaded in abatement hereof. See Felton v. Kansas City, Mexico & Orient Railway Co., 143 S. W. 650.

“Subject to said plea, and after general denial and special exceptions and specific denial of material allegations in the petition, appellant relied upon and pleaded a number of affirmative defenses, summarized in its brief as follows:

“(a) The four-year statute of limitation.

“(b) Natural obstacles preventive of the construction of the road nearer to the town of Sherwood.

“(e) That the matter of the location' of the road had been settled between the railway company and the citizens of Sherwood by virtue of the contract hereinbefore referred to, and specially pleading such contract in bar of this action, and that the citizens of Sherwood, and the town of Sherwood, and the state through them, was estopped to maintain this suit by virtue of said contract and of the fact that the railway company had acted thereon and had expended large sums of money in the construction of its road, which would have been lost if the route had been changed when it first had any intimation that the route, as located, was not satisfactory to some of the citizens of Sherwood.

“(d) That the railroad company had complied with all of its legal and constitutional obligations by securing a right of way through the corporate limits of the town of' Sherwood while it was incorporated, and were engaged in the construction of its railroad when the corporation was abolished, and that its legal status had already been fixed and could not be changed by the ex parte action of such town and its citizens in abolishing its corporation.

“(e) That the citizens of the town of Sherwood and such town, having for a long time known the location of the line of the road, and that the road was being constructed thereon, and having procured and tendered to the railroad company the identical right of way upon which the road was constructed, and knowing that the railroad company was relying on this contract, and was expending large sums of money in the construction of its railroad on this located line, had been guilty of laches in asserting any right, and were each and all estopped to demand the construction of the road at any other place, and that the state, being in this case merely a formal party, and having instituted this suit for the benefit of Sherwood and its citizens, was also estopped.

“(f) That no tender of right of way or depot grounds had ever been made to the railroad company prior to the institution of this suit.

“(g) That at the time of the institution of this suit the railroad had already been constructed past the town of Sherwood, and that the suit came too late, and that to build an additional line to Sherwood would not be justified by the traffic to be obtained therefrom, and the cost of construction and maintenance thereof would be burdensome and an improper interference with the carriage of interstate commerce in which the road was engaged.

“The case was tried before the court without a jury, and, during the progress thereof, appellant company was placed in the hands of receivers by an order of the United States District Court for the Northern District of Texas, made on the 9th day of March, 1912; and, before the trial of the case had concluded, appellant filed its motion to dismiss this suit, or to suspend it in order to make the receivers parties, which motion was overruled by the court. And the trial of the case proceeded, which resulted in the court’s overruling all the contentions of appellant, and rendering judgment in .favor of the state for the sum of $2,500 penalty, and further ordering that a permanent and final writ of mandatory injunction should issue, compelling appellant, within 30 days from the date of such order, to survey, locate, and establish a reasonable, feasible, and practicable route for its right of way into and through said town, and to survey and locate a reasonable and practicable depot site for ordinary depot purposes within said town, and, as soon as the same should have been done, to give notice in writing to the Attorney General of the state of that fact, and of the completion of the said survey, location, and establishment of said right of way and depot site in said town.”

It is unnecessary to notice matters which were adjudicated by the court; the judgment made all proper and necessary provisions to protect the railroad company.

Tlie Court of Civil Appeals found and filed this statement of the facts:

“Conclusions of Eact.
“The court finds and concludes from the evidence that the following facts were established, viz.:
“First. That the town of Sherwood is an unincorporated town, situated on the east side of Spring creek in Irion county, Tex., and is now, and has been continuously since the organization of said county, the county seat of said county, and that its boundaries and location are easily ascertained on the ground by the location, collection, and aggregation of the houses constituting said town, * * * as well as the adjacent lots and blocks on which are situated houses in said town, and all of which is fully shown and described on the map of said town set out and included in the judgment in this cause, and recorded in the minutes of this court, and which map shows the "outside boundaries of said town.
“Second. That the defendant railway company has constructed and built, and now owns, maintains, and operates, its line of railroad up and along the west side of Spring creek and passing within a distance of less than three miles of said town of Sherwood, to wit, about 1¼ miles from said town, but does not pass through said town, and defendant has not established and is not maintaining a depot in said town.
“Third. That there are no natural obstacles, such as .hills, streams, or mountains, preventing the defendant from building and constructing its line of railroad into and through said town of Sherwood, or from establishing and constructing and maintaining a depot in said town, but that defendant can survey, locate, establish, construct, and maintain a feasible and practicable route for its railroad through said town, and can establish, construct, and maintain a depot in said town at a convenient and accessible point therein.
“Fourth. That the -citizens of said town are now, and have at all times since the location of said defendant’s railroad in said county been, ready, able, and willing to grant to the defendant railway company a right of way through the limits of said town, and sufficient grounds for ordinary depot purposes in said town, free of any cost to the defendant, on whatever route through said town defendant might select.
“Fifth. That defendant can survey and locate a reasonable and feasible and practicable route for its right of way and roadbed through the limits 'of said town, and sufficient grounds for ordinary depot purposes in- said town, and can do so within 30 days, and which is a reasonable time therefor.
“Sixth. That, after defendant shall have surveyed and located its said right of way through said- town and depot grounds therein, the citizens of said town of Sherwood can secure a grant of the said right of way and depot grounds within 90 days thereafter, and which is a reasonable time therefor, unless the same, or some part thereof, shall have to be secured by condemnation proceedings, and in such ease said citizens can ascertain that fact and execute an obligation to the defendant to hold it harmless from any cost or expense incident to such condemnation proceedings, and that they can do so within said period of 90 days aforesaid.
“Seventh. That after said grant of said right of way and depot grounds shall have been - secured, as aforesaid, defendant can construct and build and put in operation its said railroad through said town, and said depot in said town, and can do so within 90 days after said right of way and depot grounds shall have been granted and secured, by voluntary conveyances, or by condemnation proceedings as hereinbefore provided for, and said time is reasonably sufficient therefor.
“Eighth. That defendant has heretofore surveyed, located, established, and constructed its railroad within three miles of said town of Sherwood, the county seat of Irion county, without passing through said town, and without establishing and maintaining a depot therein, and that defendant made no efifiorts to survey, locate, establish, or construct its railroad through said town or a depot in said town, although it could have done so at a reasonable cost, but defendant purposely and intentionally constructed its railroad passing said town, and within the distance of less than three miles therefrom, and established a station at Mertzon, a new rival town, about three miles away from said town of Sherwood.
“Ninth. That had defendant surveyed, located, established, and constructed its railroad through said town of Sherwood, instead of where it did construct the same, its said line of railroad would have been about seven-tenths of one mile shorter than its present line, and the cost of expense and maintenance and saving in operation of the line through Sherwood will substantially offset any difference in the cost of construction between said line through Sherwood and defendant’s present line, and the difference, if any, between the cost of construction, maintenance, and operation of the two lines is so slight and inappreciable as to be not unreasonable.
“Tenth. That defendant has never surveyed or located any route for its railroad through said town of Sherwood, or any point for a depot in said town, and never gave the citizens of said town, or said town, an opportunity to grant it a right of way through the limits of said town, and sufficient grounds for ordinary depot purposes, although said town and said citizens were ready, able, and willing to do so at all times.”

The judgment of the trial court was affirmed by the Court of Civil Appeals, and tlie case is before this court on writ of error.

Article 10, § 9, of our Constitution reads: “No railroad hereafter constructed in this state shall pass within a distance of three miles of any county seat, without passing through the same, and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills or mountains; provided, such town or its citizens shall grant the right of way through its limits and sufficient ground for ordinary depot purposes.”

The Legislature enacted a statute to enforce that provision, which reads: “Article 6549. (4491) Road shall Pass Through County Seat, when. — No railroad hereafter con-' strueted in this state shall pass within a distance of three miles of any county seat without passing through the same and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills or mountains; provided, such town or it citizens shall grant the right of way through its limits and sufficient ground for ordinary depot purposes.”

The constitutional provision was intended to subserve the interests of the public who desired or were required to visit the county seat, and was not intended to benefit the owners of property in the town — that might or might not be the result. The Constitution is mandatory, and the duty imposed could not be excused or waived by the citizens of the town. The railroad company must have surveyed its line and designated its depot site before it could demand of the citizens to procure the right of way and depot grounds.

Miller v. G., C. & S. F. Ry. Co., 65 Tex. 667: “In order to put the citizens at default the appellee should have selected the most practicable route, and surveyed and established it into the town, to within half a mile of the courthouse, and have selected, surveyed, and marked off the grounds necessary for depot purposes, and then have notified the citizens composing the citizens’ committee appointed to secure the right of way and depot grounds, and made, in the language of the right of way bond, ‘demand’ of the same, for the purposes stated. Not until this was done could the citizens have proceeded to secure, by purchase or condemnation, the titles to the land. Until this was done, they could not have known what ground to secure, by purchase or legal process; nor had the citizens the power to have instituted proceedings in their own names, to condemn the land. It was alone by the railway company that these proceedings could be instituted.” The duty to pay for the right of way and depot grounds did not devolve upon the citizens until the survey was made by the company ; hence the failure of the citizens to take action in that matter is no defense to this action by the state.

■From the facts as stated by the Court of Civil Appeals it appears that the railroad company has complied with neither the statutory nor the constitutional requirements. There is no question of law to be discussed. No 'error is shown. We see no ground for reversing the judgment unless it be that the writ of mandatory injunction was improperly granted, which we will now examine.

The facts of this case justify the judgment awarding the writ of mandamus. The railroad company had failed and refused to perform an unquestionable duty to the public, and the district court had authority to compel the performance of that duty. The appointment of a receiver by the federal court did not interfere with the jurisdiction of the state court over the corporation, and would not prevent the enforcement of any judgment against the corporation which would not interfere with the receiver’s possession and control of ■ the property. Power & Water Co. v. City of Palestine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A. 203; Calhoun v. Lanaux, 127 U. S. 634, 8 Sup. Ct. 1345, 32 L. Ed. 297.

What effect has the appointment of the receiver for the railroad property in this case? When the receiver was appointed, right of possession of the property of the corporation vested in the receiver, and the state court had no power to require the corporation to do any act which would interfere with the possession by the receiver of its railroad track or other property. But the state court had jurisdiction to determine the issues between the state and the corporation. See authorities cited above. The proceeding in the United States District Court furnishes no obstacle to granting the mandatory process against the corporation, but is to be considered in the enforcement of the command. Of the granting of the writ'of mandamus, Merrill on Mandamus, § 78, states the rule thus: “This writ will be denied when, for any cause, it becomes legally impossible, or rather ceases to be a legal duty.”

The district court having granted the writ, and conditions having arisen which renders it legally impossible for the corporation to comply, we believe its enforcement should be suspended until conditions shall so change as to put it in the power of the corporation to obey. We find no reversible error in the judgment. It is therefore ordered that said judgment be so reformed as to suspend the issuing of the mandatory writ until the railroad shall be restored to the corporation, or it be otherwise enabled legally to obey the mandate of the court, and, as thus reformed, the judgment is affirmed, with costs against the plaintiff in error.


text:
    CARSEY v. HAWKINS.
    (Supreme Court of Texas.
    Feb. 11, 1914.)
    1. Appeal and Error (§ 861) — 1Certified Question.
    Where the Court of Civil Appeals certifies to the Supreme Court the question whether the evidence sustains a judgment for plaintiff, .only the evidence which tends to prove plaintiff’s ease can be considered.
    [Ed. Noté. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3447, 3448; Dec. Dig. § 861.]
    2. Highways (§ 181) — Negligence—Discovered Peril.
    As defendant was approaching a crossing in his automobile, making considerable, noise, mules driven by plaintiff’s son took fright at the machine. Defendant, although he saw the fright of the mules, increased its speed and also the noise, which so frightened the animals that they ran away; one of them being killed. Held, that, as every person is bound to refrain from inflicting injury upon his fellow men, defendant was guilty of negligence under the discovered peril rule.
    [Ed. Note. — Por other cases, see Highways, Cent. Dig. § 469; Dee. Dig. § 181.]
    3. Highways (§ 181) — Contributory Negligence — Defenses.
    Though a driver of mules was guilty of contributory negligence in failing to drive them away from the road to a point where they would not have been frightened by defendant’s automobile, that is no defense to an action for injuries to the animals, which ran away,- where defendant, after seeing their terror, increased the speed and noise of his machine.
    [Ed. Note. — Por other cases, see Highways, Cent. Dig. § 469; Dec. Dig. § 181.]
    Certified. Questions from Court of Civil Appeals, Fifth Supreme Judicial District.
    Action by J. A. Hawkins against John M. Carsey. Prom a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which. certified a question to the Supreme Court.
    Question answered.
    Looney & Clark, of Greenville, for appellant. Evans & Carpenter, of Greenville, for appellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

We copy from the certificate as follows: “This case is pending before us on a motion for rehearing. At a former day of this term the issues herein were passed upon by a divided court, the majority affirming the case and the minority dissenting, the majority and minority writing opinions expressing their views and giving their conclusions of fact as shown by said opinions, and to which reference is here made. On motion of appellant we have thought proper to certify the Supreme Court of Texas for its determination as to which is correct in the premises, the conclusions of law reached by the majority or minority.”

The court found and stated in the majority opinion the following facts: “The evidence shows that appellant, with his wife, was traveling in an automobile along a public road, running north. This road intersects a public road running east and west, where appellant continued his journey westward. There was a culvert at said intersection, and, as appellant approached it, he slowed up and after crossing it he increased the speed of the machine, which made a noise not unusual when starting up speed, but which some of the witnesses designated a ‘terrible noise.’ Near the intersection of these roads Henry Hawkins, 17 years of age, a son of appellee, had been working a pair of mules, hitched to a grader a short distance west of said intersection, had unhitched them from the grader, and had driven them to one side of the road, and they were about 30 feet from the road when the automobile passed them. When the machine crossed the culvert, the mules were in full view of appellant; the mules began to indicate fright and to cut up, which was seen by appellant. He increased the speed of his machine, making the ‘terrible noise,’ causing the mules to break loose from the boy. They ran one on either side of the tree, and, the harness being too strong to break, one of the mules’ neck was broken and the other badly injured. The appellant had placed some dogwood branches with blooms on them in his auto, which extended a short distance above the auto. Young Hawkins testified in reference to the cause of the mules, running away as follows: ‘Well, the noise, the size of the thing and all; of course they could see them things, and the rattling, I guess.’ Also: ‘Well, I didn’t think about the mules getting scared. I would have drove them away if I had thought about them getting scared. I had time to get back out of the way; could have got back out of the way,’ behind the schoolhouse which was 65 feet away, but thought he had them under control. There was testimony that the auto was seen coming about 200 yards away, and that Hawkins had to hurry to get out of the way of the auto.”

The question submitted calls for a decision as to the sufficiency of the evidence to sustain the judgment. We consider the statement of facts contained in the majority opinion as the facts certified, although not presented in the certificate as required by law.

The certificate submits this question: Is there sufficient evidence to justify a conclusion that appellant was negligent, whereby the injury was inflicted? Counsel for appellant say, “Considering all of the evidence,” etc. That is exactly what this court cannot do. We must discard all evidence, except that which tends to prove negligence, and if the facts tend to show that appellant was negligent, and that his negligence caused the injury, we must sustain the majority opinion; otherwise, the dissenting opinion will be sustained. The evidence would justify the conclusion that, as Carsey was approaching the crossing, his automobile was making considerable noise, which frightened the mules that the appellee’s son had been driving, hitched to a scraper. The mules became frightened and attempted to break away from ttie driver, which Carsey saw and did not stop his machine, but increased its speed and also the noise caused by it which frightened the mules so that they became unmanageable and the injury resulted from the operation of the auto. Evidence which would justify a different conclusioh cannot be considered by this court on this question.

We must discard all evidence favorable to the appellant in answering the question, and, so considering, we answer that the conclusion of the majority of the Court of Civil Appeals was within the scope of their authority.

The facts show a case of discovered peril. Carsey saw that the mules were frightened and making efforts to escape. He could easily have halted his vehicle, but increased his speed and the noise of the automobile so as to produce “a terrible noise.” The rule of law known as “discovered peril” is founded upon the humane and just principle that requires every person to refrain from inflicting injury upon his fellow man. Under the facts of this case it was the duty of Car-sey to halt his automobile and to cease the noise until the mules could be removed or controlled. Negligence, if any, of the boy in charge of the mules constituted no defense to the action. H. & T. C. Ry. Co. v. Carson, 66 Tex. 346, 1 S. W. 107; H. & T. C. Ry. Co. v. Finn, 101 Tex. 511, 109 S. W. 918; S. A. & A. P. Ry. Co. v. McMillian, 100 Tex. 562, 102 S. W. 103.

The evidence was sufficient as a matter of law to sustain the judgment.


author: MOURSUND, J.

text:
    TRICE & RUDOLPH v. CONE et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Brokers (§ 88) — Actions for Commission —Finding.
    In an action for commissions for assisting in procuring sale of land, under a contract providing that plaintiff should send to defendant such persons as he could interest in purchasing East Texas lands, and that defendant should pay plaintiffs one-half of the commission derived from sale of such lands to such persons, the jury answered “Tes” to a special interrogatory whether plaintiff firm made an agreement with defendant by which it was to send to defendant such parties as they might be able to interest in the purchase of East Texas lands, and by which defendant agreed to pay to plaintiffs for their services, in so sending purchasers one-half of the commissions or profits derived from such sales. Interrogatory 4 directed the jury to find whether when a certain tract was sold defendant had any agreement with the plaintiffs to pay them any part of the commissions earned by the defendant in the sale of such tract, and to state what the agreement was, and particularly whether it was an agreement as to the particular tract or merely that defendant would divide the commissions earned in the sale of any East Texas land to purchasers sent by plaintiffs, without such agreement specifying any particular amount, to which the jury answered that plaintiffs’ firm had no specific agreement with defendant when the particular tract was sold, but that it had an agreement with defendant to divide the profits on any East Texas lands sold to any one whom plaintiffs sent to defendant, and that the agreement did not specify any particular amount, but the parties understood that an equal division of the profits should be allowed to plaintiffs. Held, that the answers to the interrogator^ were contradictory so far as they related to the compensation to be paid plaintiff, so that judgment should not have been rendered for either party, but the verdict for defendant should have been set aside.
    [Ed. Note. — For other cases, see Brokers, Dec. Dig. § 88.]
    2. Brokers (§ 66) — Commissions—Contract.
    Where defendant agreed to pay plaintiffs half of the commissions on the sale of any East Texas, land to parties sent to defendant by plaintiffs, it was not necessary to entitle plaintiffs to recover commissions that the purchaser sent to defendant intended to purchase a particular tract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.]
    3. Brokers (§ 66) — Commissions—Perfobmance of Contract.
    Where defendant agreed to pay plaintiffs half the commissions received upon the sale of any East Texas land to purchasers sent to defendant by plaintiffs, the fact that such a purchaser first considered a tract other than that for the sale of which commissions are claimed would not prevent. plaintiffs from recovering commissions, where the purchaser afterward negotiated for the sale of such other tract and purchased them both.
    [Ed. Note. — For other cases, see Brokers, Cent Dig. § 51; Dec. Dig. § 66.]
    4. Brokers (§ 66) — Right t.o Commissions.
    Where defendant agreed to divide with plaintiffs the commissions on the sale of any East Texas land to any persons sent to defendant by plaintiffs, plaintiffs could recover commissions for a sale made by defendant to a purchaser sent by plaintiffs, irrespective whether the land was listed with defendant for sale when the purchaser went to examine it.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.]
    5. Brokers (§ 66) — Commissions.
    Where the purchaser sent by plaintiffs to defendant to look at lands actually purchased the lands, it was immaterial whether, prior to the sale, the purchaser was ready and willing to buy the tract afterwards purchased, or that he first negotiated for the purchase of another 'tract, in order to entitle plaintiffs to commissions under a contract by defendant to pay plaintiffs commissions on any purchases of East Texas land by purchasers sent by plaintiffs.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 51; Dec. Dig. § 66.]
    6. New Trial (§ 73) — Grounds—Conflicting Interrogatories.
    Where, in an action for commissions for assisting to procure the sale of land,- answers to the special interrogatories whether defendant agreed to pay plaintiff half the commissions as alleged were conflicting, a verdict should have been set aside and a new trial ordered.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 149; Dee. Dig. § 73.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Trice & Ludolph against Adam Cone and another. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.

      Ben H. Kelly and McCollum & Burnett, all or San Antonio, for appellants. Denman, .¿franklin & McGown, and W. W. Walling, all of San Antonio, for appellees.

        Foi other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellants, as successors of the firm of Stone, Trice & Ludolph, real ■estate agents, sued appellees, alleging that about January 1, 1911, appellee Cone was in the real estate business at Palestine, Tex., and appellee Lindheim at San Antonio; that about said date Stone, Trice & Ludolph made an agreement with Cone to send him such parties as they might be able to interest in lands in East. Texas; and Cone promised them that if he made a sale of East Texas lands to any such parties so sent to him, he would pay Stone, Trice & Ludolph one-half of such commissions or profits as he might derive from, the- sale of such lands to said parties; that thereafter it was further agreed that if it became necessary to secure the assistance of another agent in procuring a purchaser or purchasers ,for lands controlled by Cone, the commission derived by Cone should be .divided into three equal parts, one of which would be retained by Cone, one would go to Stone, Trice & Ludolph, and the other to such other agent; that Stone, Trice & Lu-dolph induced one Lovett to go to Cone about February 24, 1911, as the representative of W. W. Vaughn; that Lovett inspected several tracts of land Cone had for sale, one of which was known as the “Huffman” tract, and thereafter Lovett induced Vaughn to go to Cone, about May 1, 1911, to inspect said tract of land, which resulted in Vaughn purchasing the same about August 19, 1911; that Lovett was introduced to plaintiffs by Lindheim, and the latter sold plaintiffs his interest in all commissions due him by Cone by reason of the sale of the Huffman -tract of land, and guaranteed the payment thereof by Cone; that Cone made a profit or commission upon the sale of said, tract of land amounting to $3,029.50, of which plaintiffs are entitled to the sum of $2,019, for which' amount, with interest, they prayed judgment against Cone and Lindheim.

Cone answered by a general denial, and a special answer alleging that said tract of land was not sold to any person brought to him by any member or agent of the firm of Stone, Trice & Ludolph; that at the time Vaughn bought what is known as the Barrett tract of land the Huffman tract belonged to L. J. Huffman, and the title thereto was defective; that Vaughn never offered to purchase said land from Huffman, nor. was he at any time ready or willing to purchase the same from Huffman; that the Huffman tract was not at the time listed with Cone for sale, and about May 11, 1911, Cone secured from Huffman' an option to' buy said land at any time prior to Jan. 1, 1911, at $11 per acre agreeing, in consideration for said option, to remove all defects from the title to said land prior to Jan. 1, 1911; that Cone sold said land to Vaughn, and was required to give bond to Vaughn, conditioned that he should at his (Cone’s) expense cause all defects to the title to said land to be removed on or before July 1, 1912, and deliver possession of all of the land to Vaughn by Jan. 1, 1912, except two small parcels which were in the inclosures of other persons; that Cone was required to expend and did expend various sums aggregating $939.50 in clearing up said title, the expenditures being set out in detail, and there were still some claims to the land which he had been unable to buy, nor could he state what the expense would be to complete the clearing of the title; that plaintiffs could in no event recover commissions for the sale of the Huffman tract without making allowance for the expenditures so made and those necessary to be made to clear the title.

Lindheim admitted the material allegations of plaintiffs’ petition, and alleged that his share of the commission was $1,009.50, and that he was liable to plaintiffs for his share of such commission if they did not obtain same from Cone. He prayed that plaintiffs recover from him not exceeding one-half of the amount claimed by plaintiffs against him, and that if any judgment be given plaintiffs against him, then that he have judgment over against Cone for the same amount.

By supplemental petition plaintiffs urged various exceptions to Cone’s answer, and, replying thereto, alleged that any .option taken by Cone on said land was for the purpose of holding it for sale until it could be sold for a commission or profit to Vaughn, or some one else, for the benefit of the partnership; that all expenses paid by Cone were chargeable to him individually, according to their agreement with him; that said expenses were not incurred in perfecting the title to the Huffman tract; that if plaintiffs are held liable for any expenses paid, such liability is only to the extent of their pro rata share of the reasonable and necessary expenses, which share they are willing to have credited upon their claim, as well as their share of the expenses which might be necessary to complete the clearing of the title.

The case was submitted to the jury upon special issues, which, with the answers thereto, were as follows:

“Question No. 1: Did the firm of Stone, Trice & Ludolph, or did they not, on or about January 1, 1911, make an agreement with defendant Adam Cone by the terms of which said Stone, Trice & Ludolph were to send defendant Cone such parties as they might be able to interest in the acquisition of lands in East Texas, and if defendant Cone succeeded in making a sale of East Texas lands ■to any such party-or parties the said firm -might-send him, the said Cone would pay to said firm, for their services ..in so sending such purchaser or purchasers to him, one-half of whatever commission or profit he might derive from the sale of any such lands so sold to such purchaser or purchasers, sent by said firm to defendant Cone? Answer: Yes.

“Question No. 2: Was it, or was it not, stipulated in the agreement between the firm of Stone, Trice & Ludolph and defendant Adam Cone that any and all expenses and liabilities paid out or incurred by said Cone in connection with said agreement should be borne and paid by said Cone, and that no part of such expense should be chargeable to said firm? Answer: No.

“Question No. 3: Did plaintiffs, or Stone, Trice & Ludolph, send Vaughn, or induce him to go (directly or through Lovett as Vaughn’s agent), to purchase the Huffman tract specifically? Answer: No.

“Question No. 4: You will find by your verdict whether, at the time the Huffman tract was sold to Vaughn, the defendant Cone had any agreement with Trice & Lu-dolph to pay said Trice & Ludolph any part of the commissions that might be earned by the defendant Cone in the sale of said tract, and state in your verdict what the agreement was, particularly whether it was an agreement that had reference to the Huffman tract particularly, or whether it was an agreement that Cone would make some fair division of any commissions earned by him in the sale of any East Texas land to purchasers sent him by plaintiffs, without such agreement specifying any particular amount of such commissions so to be allowed to plaintiffs. Answer: The firm of Trice & Ludolph had no specific agreement with defendant Cone, at the time that deed was passed to Vaughn on the Huffman tract, but that Trice & Ludolph had an agreement with Cone whereby Cone was to make a fair division of profits on any East Texas lands that may have been sold to any one that Trice & Lu-dolph may have been instrumental in sending to Cone, introducing or otherwise getting Cone in touch with. This agreement did not specify any particular amount, but it is the finding of the jury that they understand it to be an equal division of such commission or profits so to be allowed plaintiffs.

“Question No. 5: You will find by your verdict whether Vaughn, before he purchased the Huffman tract, had declined to buy said Huffman tract, and had selected the Barrett tract as the tract of land in Anderson county he desired to purchase. Answer: We find that Vaughn declined to buy the Huffman tract and selected the Barrett tract.

“Question No. 6: How much commission •did defendant Adam Cone receive from the sale of the ‘Huffman’ tract? Answer: Twenty hundred and nineteen dollars ($2,019.00).

“Question No. 7: What was the total amount, if any, paid out or contracted to be paid out by defendant, Adam Cone, for clearing up the title to the Huffman tract? Answer: Eight hundred sixty-four and 50/ioo ($864.50).

“Question No. 8: Has the title to the Huffman tract, or has it not, been fully cleared by the defendant Adam Cone, or are there other interests to be acquired by him in order to clear the title? Answer: The title has not been cleared. There are other interests to be acquired.

“Question No. 9: Are any further expenses to be incurred in clearing title to said Huffman tract? If so, how much? Answer: Yes. $37.50.

“Question No. 10: Find by your verdict whether the Huffman land was listed with Adam Cone for sale by Huffman, the owner, when Lovett first went to [Palestine to look at the Barrett and other lands in Anderson county. Answer: No.”

Upon these findings the court entered judgment that plaintiffs take nothing against Cone, reciting that “the court, upon a review of the evidence being of the opinion that the evidence wholly fails to show performance of their contract by Stone, Trice & Ludolph, as alleged, and that the court should therefore have instructed a verdict for the defendant Cone, it is therefore ordered, adjudged, and decreed by the court that the plaintiffs, Trice & Ludolph, take nothing as to the defendant Cone,” etc.

By the first and third assignments appellants attack the judgment of the court as unauthorized because contrary to the verdict of the jury. We have carefully read the statement of facts, and conclude that the court erred in rendering the judgment above described, for the following reasons:

1. By answering the first issue in' the affirmative, and also by the answer to the fourth issue, the jury found that the terms of the contract were as alleged by plaintiff in so far as the same related to what was to be done by plaintiffs to entitle them to a commission.

2. It cannot be said that the jury found that the contract was not proven in so far as it related to the compensation alleged to have been agreed to be paid, because the answers to issues 1 and 4 are contradictory on this point.

3. It was not necessary, under the contract alleged and testified to by plaintiffs, to prove that plaintiffs sent or induced Vaughn “to go to purchase the Huffman tract specifically,” and therefore issue No. 3 related to an immaterial matter, and the answer does not aid Cone.

4. The fact that Vaughn, after looking at both the Barrett and Huffman tracts, decided in favor of the Barrett tract, and at the time rejected the Huffman tract, would not prevent appellants from recovering a commission upon the sale of the Huffman tract, the evidence showing that, even before the sale of tlie Barrett tract was closed, Vaughn was negotiating for the sale of the Huffman tract, and bought it about two months after examining it. Special issue No. 5, therefore, related to an immaterial matter, and the answer thereto did not aid Oone.

5. Special issue No. 10 was immaterial. It was not alleged that the contract related only to lands in Cone’s hands at the time Lovett went to see him, on the contrary, plaintiffs alleged that it was a general contract relating to the sale of East Texas lands to any persons sent to Cone by plaintiffs, and the evidence is sufficient to support a finding to that effect.

6. The issue whether the contract was performed by plaintiffs was not submitted, although plaintiffs requested its submission, though in the form of a charge instead of a special issue. We do not regard the evidence upon this issue as undisputed, as found by the court. On the contrary, we think it is sufficient to support a finding that plaintiffs complied with the contract alleged and testified to by them, in sending Lovett, as Vaughn’s agent, to Cone to look at East Texas lands, which resulted in Vaughn looking at the Barrett and Huffman tracts, and buying both from or through Cone,within a short time thereafter.

We cannot agree that under the contract pleaded by plaintiff it became necessary for him to show the things contended for by ap-pellee, as follows: (a) That they sent Lovett to Palestine to look at lands in Cone’s hands for sale; (b) that the Huffman tract was in Cone’s hands for sale at that time; (c) that Lovett induced Vaughn, his principal, to buy the Huffman tract; (d) that Lovett’s principal, Vaughn, was at the time Lovett was sent to Palestine a prospective purchaser, not only for the Barrett tract, but for the Huffman tract, or at least a prospective buyer for two tracts of East Texas lands in the hands of Cone for sale, and 'that he was ready, willing, and able to buy any lands he might select from the lands of Cone; (e) that Vaughn purchased, through Lovett, the Barrett tract, and did not refuse to buy the Huffman tract, but held the matter in abeyance and subsequently purchased same without any new intervening cause operating on him to make such promise. These elements cannot be added to the contract by the courts. The petition contains the allegation that the contract was for Stone, Trice & Ludolph to send to Cone such parties as they might be able to interest in the acquisition of East Texas lands, and Cone promised them that, if he succeeded in making a sale of East Texas lands to any such party or parties as they might send to him, he would pay them, for such services in so sending said parties, one-half of the commission or profits he might derive from the sale of said lands. The contract was not limited to lands then listed by Cone, and it was not necessary to send parties to Cone to buy lands then listed with him, but merely East Texas lands. The contract did not provide that plaintiffs should induce any one to buy the lands, but should merely send the parties to Cone. If plaintiffs caused Lovett, as agent of Vaughn, to see Cone, who showed him the Huffman tract as well as the Barrett, and Cone sold him both tracts, we fail to see why it should be necessary that Lovett induced Vaughn to buy the Huffman tract. If Lovett, after getting Vaughn to look at the two tracts, had tried his best to get him not to buy either of them, Cone would not be relieved of his contract with plaintiffs.

It was alleged that Vaughn actually bought land, so it was unnecessary to go into the abstract question, whether he was at some time prior thereto ready, willing, and able to buy. Nor would plaintiffs’ rights be lost by Vaughn’s temporary refusal to take the land, when the facts show that, even before the Barrett deal was fully closed, and contrary to the advice of Lovett, who had made an agreement with Cone to divert from plaintiffs to himself the commission on the Huffman tract, Vaughn bought the said tract, and because Lovett was his paid agent to seek land bargains for him, required the deduction from the price of the 50 cents per acre which Cone and Lovett had arranged for the latter to receive.

This ease does not come within the rule laid down in the case of Eant v. Sullivan, 152 S. W. 515, because the evidence on the issue whether plaintiffs performed their contract would not have justified the court in instructing a verdict against plaintiffs.

As there was a conflict in the findings of the jury upon the material issue whether Cone agreed to pay one-half of the commission Or profits, as alleged, the court would not have been authorized to render judgment for plaintiffs, but should not have rendered judgment for Cone. The verdict should have been set aside and a new trial granted. Brown Hardware Co. v. Catrett, 45 Tex. Civ. App. 647, 101 S. W. 559; Eastham v. Patty, 37 Tex. Civ. App. 336, 83 S. W. 885.

The judgment is reversed, and the cause remanded.


author: McMEANS, J.

text:
    WILLIAM FINCK & CO. v. NACOGDOCHES MERCANTILE CO.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1914.)
    1. Dismissal and Nonsuit (§ 81)—Rein-statement— Geounds.
    ■Where a continuance was granted at the January term, 1911, and, though no court was held for the April and July terms of that year, and the ease was inadvertently omitted from the docket of the November term, 1911, plaintiff’s motion to reinstate, filed in November, 1912, must be granted, notwithstanding evidence of1 defendant’s counsel that the court had assented to its dismissal for want of prosecution; no record entry of dismissal appearing.
    [Ed. Note. — For other eases, ■ see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    2. Dismissal and Nonsuit (§ 79) — Effect.
    The assent of the trial court to the dismissal of an action for want of prosecution, without any entry either on the docket or the minutes, does not effect a dismissal.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 174, 175; Dec. Dig. § 79.]
    3. Dismissal and Nonsuit (§ 81) — Odder Nunc Pro Tunc. ’
    Where a case was inadvertently dropped from the docket, the denial of plaintiff’s motion to reinstate it on the calendar thereafter does not have the effect of the entry of an order dismissing it nunc pro tunc, on defendant’s motion for dismissal for want of prosecution.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Action by William Finck & Co. against the Nacogdoches Mercantile Company. From a judgment denying the motion of plaintiff to replace the case on the calendar from which it had been dropped, plaintiff appeals.
    Reversed and remanded.
    E. B. Lewis, of Nacogdoches, for appellant.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMEANS, J.

This is an appeal from a judgment of the county court refusing to grant a motion filed and presented by plaintiff, appellant here, to replace this case on the docket of the trial court, from which it had been dropped in some unexplained way. The suit was filed December 16, 1909. No order was made in the case by the court at the January, April, or July, 1910, terms thereof. At the November term, 1910, it was continued for the term on the application of the plaintiff, and at the January term, 1911, the judge’s docket shows it was continued on the application of the defendant, the order being entered February 2,1911. At the April term, 1911, the case did not appear on the docket, and its original number (828) was given to another case. No court was held for the April and July terms, 1911, and the case was not on the docket at the November term, 1911. At the November term, 1912, appellant filed a motion to have the ease put back on the docket and its original number given to it. Evidence was heard on the motion, and the facts above recited were proved, and, in áddition thereto, the following evidence was heard. Clifton Wells, the deputy clerk, who was intrusted with the preparation of the minutes of the court, testified that he had examined the minutes from and including the April term, 1911, to the date of the trial, but found no order or judgment dismissing the case from the docket, and that he had no recollection of the case being dismissed, but supposed that the reason he had not carried it forward upon the docket was because it had been disposed of in some way. F. P. Marshall, who was county judge at the January and April terms, 1911, and at the time the motion to reinstate was filed, testified that he had examined the docket showing cases disposed of during his term of office and found no order entered dismissing the ease and had no independent recollection of the case being disposed of by order of the court. On the other hand, George S. King testified that he was attorney for and represented the defendant from the time the suit was instituted; that he had agreed with plaintiff’s attorney to continue the case several times in order that the latter might take some depositions; that he never submitted the depositions to be crossed; that at a term of the county court subsequent to the January term, 1911, he requested the court in open court to dismiss the case for want of prosecution, to which the court assented, and he had thought the clerk had entered the order on the minutes, as the case had not since been carried on the docket; that during the year 1912, and before the July term, he advised plaintiff by letter that the case had been dismissed for want of prosecution nearly two years before, and that no motion to reinstate was made by plaintiff at the July term, 1912, and that the next he knew of the matter was the filing of the motion to reinstate in November, 1912. This testimony shows that Mr. King requested the court to dismiss the case for want of prosecution, but falls short of showing that the ease was dismissed in fact, because neither the docket nor the minutes show such action. Mr. King says he made the request some time subsequently to the January term, 1911, but at what particular time he does not undertake to say.

The entry on the judge’s docket shows that the case was continued at the January term, 1911, by the defendant, and that the order was entered February 2d. Certainly the request for a dismissal could not have been made at that term. No court was held for the April term, 1911, and the order could therefore not have been entered during that term, but, notwithstanding this, the case did not appear on the docket at that term, nor at any time since. At the time Mr. King requested the dismissal, it is evident that the case was not on the docket, which, of course, he did not know. It is also quite evident that the case was inadvertently omitted when the docket was being transferred from the January to the April term. The assent of the court to the dismissal without any entry either on the docket or the minutes of an order to that effect did not have the effect of dismissing the case. The judgment appealed from, denying appellant’s motion to reinstate, is not equivalent to the entry of an order of dismissal nunc pro tunc.

We think, under the circumstances, the ap-pellánt had the right to have the case placed back on the docket from which .it had been omitted. After it has been redocketed, the court can then hear proof upon a motion to enter the dismissal nunc pro tunc, if any such shall be filed, or can make such other disposition thereof as the justice of the case demands.

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: HENDRICKS, J.

text:
    JOHNSON v. MILLER.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1914.)
    1. Courts (§ 39) — Instructions—Pleading —Fraud.
    In an action by a'buyer for the purchase price and damages, on the seller’s failure to perform, where the damages alleged were only $96, and the purchase price, which had been deposited in a bank, was $144, where there was a plea in abatement that the county court did not have jurisdiction because the attempt to recover the $144 was fraudulently included to bring the case within the jurisdiction of the court, it was necessary to submit the question of fraud to the jury, and it was not enough to merely instruct that, if defendant had not received the deposit of $144, verdict should be for defendant.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 152-156; Dec. Dig. § 39.]
    2. Sales (§ 418) — Breach oe Contract — Measure oe Damages — Amount in Controversy.
    The measure of damages on a breach of contract to deliver chattels, where the purchase money has been paid being the highest market price at any time between the time appointed for delivery and the day of trial, the buyer in a completed contract of sale can refuse to accept a return of the purchase money, deposited in a bank until such delivery, and sue for both the purchase price and damages.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174r-1201; Dec. Dig. § 418.]
    3. Sales (§ 418) — Breach oe Contract — Resale — Notice—Special Damages.
    In a sale of cattle for’ future delivery, where the seller has notice of a contract between the buyer and a third party for a resale of the cattle at a profit, such profits are recoverable as special damages on the seller’s failure to deliver.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    4. Sales (§§ 404, 418) — Remedies oe Buyer —Measure oe Damages.
    Where a contract for the sale of chattels has been completed and the seller fails to deliver, the buyer may sue for the conversion, and may then recover the highest market price before the trial.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1146, 1174-1201; Dec. Dig. §§ 404, 418.]
    5. Sales (§ 404) — Sales — Contract — Conversion.
    Where there has been a sale of cattle, and the seller has refused to deliver,’ an action may be either brought on the contract for its violation, or for the conversion, but the buyer is confined to one or’ the other in the submission of the case to the jury.
    . [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. § 404.]
    6. Pleading (§ 111) — Plea in Abatement-Facts — Submission.
    Where, as presented, the same facts which would sustain a plea to the jurisdiction would defeat the whole 'cause of action, the case should be submitted on the merits and the plea in abatement disregarded.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.]
    7. Sales (§ 418) — Breach oe Contract — Contract oe Resale-^Special Damages— Pleading and Pbooe.
    In order to recover lost profits on a contract of resale by a buyer, where the seller refuses to deliver chattels., the pleadings and proof must show the special circumstances under which the contract between the buyer and seller was actually made, which special damages must be reasonably contemplated by, and follow from, the breach.of the contract by virtue of such special circumstances known and communicated to the seller.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Suit by A. S. Johnson against C. E. Miller. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Jno. W. Woods, of Rotan, and L. H. Mc-Crea, of Roby, for appellant. C. P. Wood-ruff, of Sweetwater, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key.-No. Series & Rep’r Indexes

   HENDRICKS, J.

The appellant, Johnson, sued the appellee, Miller, in the county court of Fisher county, alleging a contract of sale, by the terms of which Miller agreed to deliver eight steer yearlings at $18 per head on or about April 15, 1913, and that, in payment of same,- he deposited $144 in the Cowboy State Bank & Trust Company, and that at the time of the purchase by him of said cattle he had- a contract with another person for the sale and delivery of same at $30 per head, and which would have netted him a profit of $96, suing in the aggregate for the sum of $240.

The plaintiff’s petition, in a sense, also sounds in conversion, alleging that defendant resold the steers, refusing to deliver the same to him, and that “the reasonable, actual, and sales value of such cattle * * * alleged to have been bought was, on April 15th and at all- subsequent times since said date, of the value of $30 per head.” The plaintiff alleges that, “at the time of the purchase of said cattle by him from the defendant, the latter had due notice that plaintiff had to deliver said cattle on or about May 1st,” probably intending that the said allegation placed him within the rule of special damages. We doubt if this' allegation is inferentially sufficient to charge notice of the loss of profits upon the contract.

The appellee pleaded in abatement that) the county court did not have jurisdiction to determine the cause of action, “for the reason that the amount of damages alleged is only $96, and the recovery of the $144 purchase price * ⅜ $ is fraudulently alleged for the purpose of giving this court (the county court) jurisdiction of the case”; and the trial court on this issue in substance instructed the jury that, if they believed that the $144 was never received by the defendant, Miller, and that he never had the same in his possession, and never laid claim to the same, to find in appellee’s favor, without submitting to the jury in any manner whether the allegations were fraudulently made for the purpose of conferring jurisdiction of said cause in the county court, by in■creasing the real amount in controversy; further instructing the jury that, .if they found in favor of the defendant on his plea to the jurisdiction not to consider the case upon the merits, the jury finding in favor of the plea, returning their verdict accordingly.

The appellant complains in this court of the trial court’s charge on account of the failure to submit the element of fraud to the jury with reference to the question of jurisdiction, which complaint we think is just, the appellee not submitting a brief. The court’s charge on this issue merely tenders the issue upon a specific fact or facts with reference to the $144, without submitting in any manner the bad faith of appellant alleged by ap-pellee in his plea to the jurisdiction, and which is an essential constituent in the proof of such a plea; and, in a charge to the jury for the purpose of rejecting the jurisdiction of the court, a failure in this respect is clearly error.

In considering the statement of facts as to the controversy on this issue, the testimony of the appellee is such, which, if true, is addressed to appellant’s whole cause of action. The appellant alleges a specific contract for the sale and purchase of certain cattle at a certain price, to be delivered on or about the 1st of April, 1913; that he paid for said cattle in accordance with the agreement by delivering the purchase price at a certain bank for that purpose; and that the appellee breached the contract by selling the cattle to other parties and refused to deliver the same to him in accordance with his agreement; the appellee denying this, and asserting that he informed the appellant that he would not sell the calves to him at any price unless other parties who were milking their mothers would agree to the sale and delivery at the time mentioned, and, while he agreed that appellant could leave the check for the calves at the bank mentioned at Rotan, Tex., it was upon the condition mentioned; and that, if he decided to deliver the steers under the contract, after seeing the parties who were milking the mothers, he would advise him to that effect; that thereafter he called at the bank, advised the assistant cashier to return the money to the appellant, stating that the parties would not permit him to sell the steers. If appellee agreed to sell the steers upon the stipulations mentioned by him, there was no sale. If appellant’s testimony is true, there was a consummated sale of the yearling steers at $18 per head at the time he delivered his check for the payment of same with the Cowboy State Bank & Trust Company to appellee’s credit, notwithstanding the appellee may thereafter have refused to accept said money. It seems that the bank at the instance of appellee attempted to return the purchase price of the steers to appellant, which he refused. Appellant, in claiming a profit as damages arising on account of the violation of a contract, had the right to refuse the return of this money. If he had not done so, the cause of action for conversion for the value of the steers, or for the profits on a breach of the contract, claimed by him would have been abandoned.

The measure of damages on a breach of contract to deliver chattels, where the purchase money has been paid, is the highest market price at any time between the time appointed for delivery and the day of trial, with interest from the time appointed for delivery. Calvit v. McFadden, 13 Tex. 324, 328. Also see Ry. Co. v. Busch, 23 S. W. 309; Brasher v. Davidson, 31 Tex. 193, 98 Am. Dec. 525; Cartwright v. McCook, 33 Tex. 612; Randen v. Barton, 4 Tex. 289, which latter case is the first enunciation of the rule in this state where the price has been paid in advance and holding the purchaser is entitled to the advantage of any rise in the market value of the article.

If the appellee breached the contract, which thq appellant contends was made and consummated when he negotiated for the cattle and paid the money in the bank, if the appellee had notice of a special contract by appellant with others for a resale of said cattle at a profit, the profits are recoverable as special, damages. The appellee having rescinded the contract by placing it beyond his control to deliver, the appellant had the right to recover the purchase price and the profits by alleging the contract and its violation, and the other ingredients mentioned; or he had the right to recover upon the theory of a conversion of the cattle for the highest market price, in accordance with the rule declared in the decisions cited. However, appellant could not recover upon both theories, but is confined to one or the other in the submission of his ease to the jury. If the trade was in accordance with appellee’s contention, appellant could neither recover the $144 from appellee, the $96 as profits, nor could he recover upon the theory of conversion for the value of the cattle.

The manner in which the case is made in this court upon the plea to the jurisdiction, we are unable to see the relevancy of such a defense; either a contract was made in accordance with plaintiff’s theory, or there was no contract-, in accordance with defendant’s theory, and it is a plain issue of liability or nonliability, and, if the plea in abatement of defendant remains the same as in this record, it should be disregarded by the trial court, and the cause should be submitted on the merits in accordance with this opinion. As presented the same facts which would sustain the plea would defeat the whole cause of action.

In order to recover profits arising out of the contract with other parties, the pleadings and proof must show the special circumstances under which the contract between appellant and appellee was actually made, which special damages must be reasonably contemplated by, and follow from, the breach of the contract, by virtue of such special circumstances known and communicated to the other party. Madill Oil Co. v. Sanger, 95 S. W. 36; also see Missouri, K. & T. Ry. Co. v. Belcher, 88 Tex. 549, 32 S. W. 518; Amory Mfg. Co. v. Gulf, C. & S. E. Ry. Co., 89 Tex. 426, 37 S. W. 856, 59 Am. St. Rep. 65; Belcher v. Missouri, K. & T. Ry. Co., 92 Tex. 593, 50 S. W. 559; and Bourland v. Choctaw, O. & G. R. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647.

For the error indicated as to the submission of the cause to the jury on the question of the plea of jurisdiction, the cause is reversed and retnanded for a new trial, in accordance with this opinion.