author: WILLSON, C. J.

text:
    WILSON v. WELLS FARGO & CO. et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 12, 1914.)
    Master and Servant (§ 278) — Injuries to Servant-Evidence — Safe Place to Work.
    In an action by an employs of an express company against the express company and a railroad company for injuries received by a fall caused by ice in a corridor of the depot, evidence held sufficient to warrant the jury in finding that an ordinarily prudent person would not have permitted’ the ice to accumulate, or would have removed it, or taken other steps to protect the employés, and therefore a directed verdict for the defendants was erroneous.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by J. W. Wilson against Wells Fargo & Co. and another. Judgment for the defendants on a verdict directed in their favor, and plaintiff appeals.
    Reversed' and remanded.
    On January 3, 1912, the depot building of the Texas & Pacific Railway Company at Paris was situated between said company’s tracks on the south and a public street on the north. Extending north and south through the building was an open archway 40 feet long and 30 feet wide. The archway was used by employes of the railway company and of Wells Fargo & Co. and the public generally in going from the street to the tracks and from the latter to the former. About 7:40 o’clock on the night of the day mentioned, while appellant, in the discharge of his duty as ah employé of said Wells Fargo & Co., was pushing a truck loaded with express matter through the archway, he slipped and fell, to the brick floor thereof, and thereby was injured. Appellant claimed he was caused to so slip and fall' by ice which had formed on the floor of the archway. , He sued both the railway company and Wells Fargo & Co., seeking a recovery against them on the ground that they were guilty of negligence in permitting the ice to be on the floor and in failing to so light the archway as to enable him to discover and avoid same. After hearing the testimony the trial court instructed the jury to return a verdict in favor of the railway company and Wells Fargo & Co., and, such a verdict having been returned, rendered, judgment that appellant take nothing by his suit.
    Wright & Patrick, of Paris., Tex., for appellant. Jno. S. Stone, A. P. Park, and Long & Wortham, all of Paris, Tex., for appellees.

      For other oases see same topic and section NUMEI'JR in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after stating the facts as above). We do not understand that either the railway company or Wells Fargo & Co., is in the attitude of controverting the contention, made by appellant that they respectively owed to him the duty to exercise ordinary care to see to it that the archway was reasonably safe for the use he was putting it to at the time he slipped and fell. Their position seems to be that, owing appellant that duty, there was no testimony authorizing a finding that they had not discharged it. .We think there was such testimony, and that the court erred when he refused to submit the case to the jury, and, instead, peremptorily instructed them to find against appellant. Appellant testified that the ice which caused him to slip and fall covered a space about two feet in diameter at a point on the floor four or five feet within the archway and eight or ten feet from the west wall thereof. Considering the use being made of the archway by employés of the railway company and of Wells Fargo & Co.,' we think the jury reasonably might have found that an ordinarily prudent person charged with the-duty the railway company and Wells Fargo & Co., owed to such employés, would not have suffered ice to form on the floor, or, if he did suffer it to form there, would have promptly discovered and removed it, or, failing to remove it, would have taken other steps to protect said employés against danger they otherwise would incur from its presence on the floor while they were using the archway.

Therefore we think the judgment should be reversed, and the cause remanded for a new trial; and it will be so ordered.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    HANDY et al. v. ROBERTS.
    (Court of Civil Appeals of Texas. Texarkana.
    March 19, 1914.)
    1. Sales (§ 179) — Duty to Purchase — Exemption op Property.
    Where the purchaser of oats did not see them when they were delivered, and was in bed sick when they were sowed on the next day, so that he had no opportunity to discover that they were not of the kind purchased, his failure' to examine them would not bar his action for damages for fraudulent representations as to the kind of oats sold.
    [Ed. Note. — For other cases, see Sales, Cent Dig. §§ 456-468; Dec. Dig. § 179.]
    2. Fraud (§ 28) — Misrepresentations — Quality op Article Sold.
    If the seller of oats represented that they were of a certain kind, but knowingly delivered a wholly different variety with the intention that the purchaser should receive them for the kind agreed to be delivered, the seller was guilty of actionable fraud which would support an action in the nature of deceit by the purchaser.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 8, 26; Dec. Dig. § 28.]
    S.Trial (§ 251) — Instruction — Application to Issues.
    In a case of warranty, the purchaser’s rights rest in contract, while in case of fraud they are based on tort, so that, in an action by the purchaser of seed oats for damages for fraud in misrepresenting the quality and variety agreed to be delivered, a request to charge as to what would constitute a warranty was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dee. Dig. § 251.]
    4. Sales (§ 404) — Breach op Contract.
    The seller’s failure to deliver the particular variety of ^oods specified and the delivery of another variety involves a breach of contract,’ and not a breach of warranty.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1146; Dec. Dig. g 404.]
    5. Sales (§ 266) — Implied Warranty — Warranty op Quality.
    Where a particular article is sold by description, there is ordinarily an implied warranty that it shall be of the kind described.’
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 743, 746, 747, 754-759; Dec. Dig. § 266.]
    6. Fraud (§ 59) — Measure op Damages.
    The damages recoverable in an action of deceit are such as would result from the fraudulent act within the contemplation of the parties, and did proximatély result therefrom.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.]
    7. Appeal and Error (§ 719) — Assignment op Error — Necessity — Fundamental Error.
    Error, in an . action for damages from fraudulent representations as to the quality of seed oats agreed to be delivered by the delivery of a different quality, in allowing plaintiff damages for the whole crop, when he only owned two-thirds of it, was fundamental error which will be reviewed without an assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    8. Fraud (§ 59) — Damages Recoverable-Amount.
    Where one suing for damages from fraud in agreeing to sell a certain quality of seed oats and delivering a wholly different kind only owned two-thirds of the. oat crop, it was error to permit him to recover the value of the loss of the whole crop; he being entitled to recover only two-thirds of that amount.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by H. N. Roberts against John R. Handy and others. From a judgment for plaintiff, defendants appeal.
    Affirmed as reformed.
    This .is an action of deceit by the buyer against the seller for the damages sustained in the difference between the value of a crop of oats produced from the seed delivered and the value of the crop that would have been produced from the particular kind and variety of seed actually ordered. The plaintiff alleged that on January 31, 1912, he, acting through R. S. Legate, entered into an oral contract with the defendants, by the terms of which the defendants agreed to sell and deliver to plaintiff 50 bushels of red rust proof seed oats, at 70 cents, per bushel therfor, and that the defendants failed to deliver red rust proof seed oats as agreed, but fraudulently delivered to plaintiff, without his knowledge to the contrary, ’50 bushels of oats that were wholly unfit for seed and of another variety and kind, and that were not red rust proof oats. The defendants answered by denial, and specially averred that in the sale of the seed oats made by them to plaintiff there was no warranty, express or implied, with reference to the character, kind or productiveness of the seed. In a trial before a jury there was a verdict in favor of plaintiff.
    Appellants are partners engaged in the fuel and feed business. The appellee is a farmer, and on January 31, 1912, came to Denison to purchase seed oats for planting. According to the evidence offered in behalf of appellee, he, acting through R. S. Degate, bought of appellants 50 bushels of Texas red rust proof seed oats at the agreed price of 70 cents per bushel, and afterwards appellants knowingly delivered to appellee 50 bushels of another and entirely different variety of oats, and of a lower quality, without his knowledge of the difference in the kind and variety delivered. According to the evidence in behalf of appellants, it was not agreed or undertaken to sell to appellee through Legate any Texas red rust proof seed oats, but they agreed to sell and deliver, as they did, an oat called Arkansas oats, and no other kind, and they made no warranty as to their productiveness or quality. The jury settled the conflict in favor of appellee, and this court is bound by such finding. The appellee’s son sowed for him the 50 bushels of seed oats when and as received from appellants, in suitable ground, and later there was matured and gathered only 400 bushels from the crop instead of from 40 to 50 bushels per acre for 20 acres, which would have been the usual and average crop if the seed oats had been red rust proof oats. At the time of the delivery of the seed oats by appellants, the ap-pellee was confined to his bed on account of sickness, and did not see them before they were sowed, and did not know the seed sowed was not the kind and variety purchased until the crop was raised.. In accordance with the findings of the jury, we find that the appellants contracted to sell and deliver to appellee 50 bushels of a distinctive variety and quality of seed oats called red rust proof seed oats, for planting purposes, and knowingly delivered instead an Arkansas oat unsuitable to the purposes of appellee, proximately causing the loss awarded by the jury, and that appellee was not guilty of contributory negligence in failing to discover the difference in the seed oats.
    Wolfe, Wood & Haven, of Sherman, for appellants. Ross W. Stoddard, of Denison, and Jones & Hassell, of Sherman, for appellee.

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

   LEVY, J.

(after stating the facts as above). The first and second assignments predicate error by bill of exception upon the admission of certain evidence. The assignments should be overruled, we-think, as affording no sufficient grounds for reversal of the judgment.

The third assignment predicates error upon the charge of the -court in authorizing a verdict for appellants upon the finding by a jury of the failure on the part of appellee to use ordinary prudence to inspect and discover that the oats furnished were not Texas red rust proof oats.

It is insisted that it was the absolute duty of appellee to inspect the oats before sowing them. Appellee -never saw the oats that were delivered, and was in bed sick when they were sowed the next day, and there is no pretense of any evidence otherwise going to show that he had occasion or opportunity to discover that the oats were not the kind he bought. Unless it should appear — and it does not here — that appellee had discovered the difference in the oats through occasion and opportunity to do so, he would not be precluded of his right to damages proximately caused by the alleged deceit. And under the facts here, there was no error in the instruction of which appellants could complain.

The fourth assignment is predicated upon the refusal to give a peremptory instruction in favor of appellants. It is quite clear from the evidence that appellee was intending to purchase of appellants, for planting purposes, only the particular variety and quality of seed oats called the Texas red rust proof oats. But the evidence is conflicting as to the terms of the sale.- The evidence in behalf of appellee goes to show a 'sale of the specific variety and quality of oats as claimed by him. The evidence in behalf of appellants goes to show a sale only and specifically of an Arkansas oat, which was delivered strictly in accordance with the terms of sale. In view of the evidence, if the appellee, through Mr. Legate, made the proposal to appellants to purchase from them 50 bushels of Texas red rust proof seed oats, as was the exclusive province of a jury to say, and appellants, knowing the terms of the proposal, accepted such proposal, and agreed to sell and deliver that particular kind and variety of oats, then a contract in respect thereto is established by the evidence. Here in one view it would appear that the appellee agreed to buy a specific kind and variety of seed oats, and the appellants agreed, if true, on the sale and delivery of the specific article. Being a contract in regard to the sale and delivery of a specific article, as within the province of the jury to say, then knowingly to deliver a wholly different variety and kind of seed oats, if true, with the intention that it should be acted upon by appellee, and actually inducing him to act upon it as the particular kind and variety of oats actually bought, would operate to establish that which is in law termed “fraud.” And for such fraudulent representation of fact, if so found by the jury, an action in the nature of deceit, as here, would lie. Floral Co. v. Watson, 160 S. W. 659. Whether the different variety of oats delivered was, in fact, of a character to deceive appellee became and was, under the facts here, a question for the jury. The facts go to sho.w that he never saw the oats delivered, and was sick at the time, and by reason thereof his means of knowledge was not equal to that of appellants, and hence we could not say, as a matter of law, that he did not in this case have a right to rely upon the alleged- false representation of fact. We think the case as made by the record was one that was legally required to be passed to the jury for decision.

The fifth and sixth assignments each predicate error upon refusal to give special charges respecting what it would take to constitute a warranty. The point made is that the jury should have been instructed to the effect that a sale of grain for seed designated as Texas red rust proof oats does not constitute a warranty that said oats are suitable for any particular use. The case, as pleaded and proven, does not involve warranty. Plaintiff’s action is for tort, in the nature of deceit; and the court’s charge to the jury was in accordance with the petition. A distinction is to be observed between warranties and other grounds of liability. In the case of a warranty the rights of the purchaser rest in contract, while in the case of fraud they are based on the tort.

Where the contract is for the sale of a designated article, and another is delivered, the failure to deliver the particular goods is not a breach of warranty, but a breach of the contract. Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305. Whereas in a sale of a particular article by description, and actually delivered, there is ordinarily an implied warranty that the article shall be of the kind described.

The effect of alleged acts of deceit is to be determined by their truth or falsity, and the damages recoverable are such as result proxfmately from the wrong as, within the contemplation of the parties, would result from the act Jones v. George, 61 Tex. 345, 48 Am. Rep. 280. The assignments are-overruled.

While the question of excessive damages is not raised by any assignment, yet we think there is fundamental error here in respect thereto. It appears from this record that appellee only owned two-thirds of the crop, and the charge authorized the jury to consider damages to all the crop. As said in Jones v. George, supra: “The owners of the other part of the crop, who, subsequent to its destruction, conveyed their interests therein, together with any right of action they might have against the appellee for his breach of contract, could not thereby clothe the appellants with a right of action they never had. With them the appellee had no contract, and it is well settled that, when a right or duty is created wholly by contract, it can only be enforced between the contracting parties or their privies.” Being the owner of only two-thirds of the crop, and the jury having measured the value of the whole loss at |240, the appellee would be entitled to recover two-thirds of that amount, or 8160.

Therefore the judgment is reformed so as to allow appellee a recovery against appellants for 8160, and, as so reformed, the judgment will be affirmed; but the appellants, for this error, will recover of appellee all costs of appeal.


author: HALL, J.

text:
    EWALT v. HOLMES.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.)
    Justices of the Peace (§ 44) — Jurisdiction —Amount in Controversy.
    The parties agreed that plaintiff should represent defendant in a lawsuit for a certain sum, part of which was paid when the agreement was • made, at which time plaintiff gave a written receipt therefor, which contained a memorandum of the contract as to the remainder to be paid and the condition of its payment, which receipt was accepted by defendant. Rev. St. 1911, art. 4977, provides that, on all written contracts ascertaining the sum payable when no rate of interest is agreed upon, 6 per cent, interest shall be allowed after the time when the same is payable. Held, that the contract was one on which interest was recoverable under the contract, and hence interest did not enter into consideration as a part of the amount in controversy affecting the jurisdiction of the justice’s court in an action on the contract.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Gent. Dig. §§ 157-172; Dec. Dig. § 44.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by Y. W. Holmes against M. J. Ewalt. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Matbes & Williams, of Plainview, for appellant. Randolph & Randolph and L. C. Penry, all of Plainview, for appellee.

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

   HALL, J.

This suit was filed by appellee in the justice court of Hale county to recover a balance due him of 8200 as attorney’s fees for representing appellant in a certain case in the district court of Hale county.

Appellee alleges that on the date of his employment it was agreed that appellee should represent appellant in the district court case for a certain sum, part of which was paid at that time, when appellee gave appellant a written receipt for the amount, which receipt contained a statement or a memorandum of the contract between them as to the remainder to be paid and the condition of its payment, which receipt was received and accepted by appellant.

This is such a written contract as, under R. S. 1911, art. 4977, ascertains the sum payable, and it is provided by said article that, when no specified rate of interest is agreed upon by the. parties to the contract, interest shall be allowed at the rate of 6 per cent, per annum from and after the time when the same is due and payable. Such being the ease, interest is recoverable' eo nomine, and does not enter into consideration as a part of the amount in controversy affecting the jurisdiction of the court. The only assignment of error urged is that the justice court had no jurisdiction of the cause of action. This assignment must be overruled. Carter Grocer Co. v. Day et al., 144 S. W. 365; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031; Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Constitution of Texas, art. 5, § 19.

The judgment is affirmed.


author: HODGES, J. HODGES, J.

text:
    TEXAS & N. O. R. CO. v. FRANCIS.
    (Court of Civil Appeals of Texas. Texarkana.
    March 19, 1914.
    On Motion for Rehearing, April 2, 1914.)
    1. Appeal and Error (§ 1052) — Harmless ebbob — Admission of Evidence — Fact Otherwise Established.
    Error in admitting testimony that a horse, for whose death the action was brought, would have been worth a certain sum if he had made a good showing at a fair to be held in the future was harmless, where the testimony of the witnesses as to the value of the horse ranged from $1,200 to $2,500, and the verdict, which was for $1,250, was not claimed to be excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    2. Appeal and Error (§ 232) — Assignment of Error — Admission of Evidence — Departure from Objection.
    An objection to a question calling for an opinion as to the suitability of a car furnished for the transportation of a horse, that the rule admitting such testimony does not permit a witness to testify to a conclusion which is in issue on the trial, does not support an assignment that the witness was not qualified to give an opinion, and that there were no' facts upon which the opinion could be predicated.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.] .
    3. Carriers (§ 217) — Carriage of Live Stock — Contributory Negligence of Con- ■ SIGNEE.
    The failure of the consignee of a horse properly to blanket and protect it from the weather after its delivery by the carrier is not contributory negligence which will bar a recovery for the death of the horse caused by delay in shipping, and by transporting it in a box car without sufficient ventilation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 931; Dec. Dig. § 217.]
    On Motion for Rehearing.
    4. Appeal and Error (§ 232) — Presenting Questions in Lower Couri^Objections to Charge — Statutory Provisions.
    The failure of objections to a charge to conform to the requirements of Acts 1913, c. 59, amending Rev. St. 1911, art. 1971, furnishes no reason for refusing to consider the assignment of error based thereon, in an action which was tried before that act became effective.
    [Ed. Note. — For other cases, see' Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.]
    5. Appeal and Error (§ 730) — Assignments of Error — Reference to Charge.
    Where the assignments of error stated that the court erred in 'its charge, and particularly in advising the jury that “it was the duty of the defendant to exercise ordinary care to furnish a reasonably suitable car for the shipment of plaintiff’s horse,” for specified reasons, and that the error was called to the court’s attention by motion for new trial, referring to a page in the transcript, and there was nowhere any effort to point out more particularly the portions of the charge objected to, the assignments will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. § 730.]
    Error to District Court, Cherokee County; Jas. I. Perkins, Judge.
    Action by Dr. C. C. Francis against the Texas & New Orleans Railroad Company. Judgment for the .plaintiff, and defendant brings error.
    Motion for rehearing overruled.
    Jno. T. Garrison and Baker, Botts, Parker & Garwood, all of Houston, and Imboden & Perkins, of Rusk, for plaintiff in error. Norman & Shook, of Rusk, for defendant in error.

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

   HODGES, J.

In October, 1912, the defendant in error was the owner of a pair of horses, which he desired to exhibit at the Dallas Fair. On the 15th of that month he delivered the horses to the plaintiff in error, at Rusk, and took a bill of lading showing that they were to be transported to the fair grounds chutes at Dallas. The freight was prepaid to Dallas. The horses arrived at the depot of the plaintiff in error at Dallas the next day some time near noon, and were delivered to W. A. Massey, the consignee, between 5 and 6 o’clock that afternoon. At the time of their delivery they appeared to be in good condition; but no special examination seems to have been made by Massey. The next morning one of them showed evidences of being sick. A veterinarian was called in to treat the animal; but it died a few days thereafter of pneumonia. This suit was brought to recover its value.

The petition charged negligence in delay in the transportation and delivery of the horses, and in shipping them in a box car with insufficient ventilation. The jury returned a verdict in favor of the defendant in error for $1,250. The testimony is conflicting as to the kind of car in which the animals were shipped; some of the witnesses testifying that it was a stock car, while another stated that it was an ordinary box car. The station agent testified that the defendant in error requested him to furnish a stock car; but he was not certain that the ear he furnished was in fact the kind wanted.

The first error assigned is to the action of the court in permitting defendant in error to testify that, if his horse had made a good showing at the California State Fair in 1915, he would have been worth $25,000. This testimony could affect only the amount of the verdict. Several witnesses testified as to the value of the deceased animal. None of them placed his value at less than $1,200; while others testified that he was worth $2,500. It is not likely that this error had .any influence upon the jury in fixing the amount of the damages. No complaint is made that the verdict is excessive.

It is also contended that the court erred in permitting the defendant in error to testify that a small box car, with only one door open for ventilation, and that door only partially open, was not a suitable car in which to ship a horse. The ground of the objection, as shown by the assignment, is that the witness was not qualified as an expert to give that character of testimony, and the absence of any facts upon which'the question could be predicated. The bill of exceptions to which we are referred as presenting this question shows that on the trial there was no specific objection urged. The objection there made is as follows: “We object to- the question. He (the witness) has already testified that he is a physician, and this rule permitting such testimony does not go to the extent of permitting a witness to testify to a conclusion which is in itself an issue on the trial” According to the qualification made by the court in allowing this bill, that was the only objection interposed. It does not support the assignment.

The third assignment of error is not supported by the record, and is accordingly overruled.

The fifth, sixth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error complain of the general charge of the court. Some of these assignments are so general in failing to point out the portions of the charge of the court to which they are directed that for that reason alone they should be disregarded. Article 1971 of the Bevised Civil Statutes of 1911, as amended by the Acts of 1913 (see Acts 1913, p. 113), reads as follows: “The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection, and' a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived.” One of the purposes of this statute evidently was to require the parties to call the attention of the court to such portions of the charge as they regarded as erroneous, and to give the court an opportunity to make such corrections as might be necessary and proper before the charge was read to the jury. Article 2061, as amended by the act above referred to, is as follows: “The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided in the foregoing articles.” Evidently the “foregoing articles” referred to are those which immediately precede this amended article in chapter 19 of the Bevised Civil Statutes of 1911. For the failure to comply with those provisions of the statute, these assignments will not be considered.

Special charge No. 2, which was requested and refused, if corréct in other respects, was erroneous in telling the jury that a failure to properly blánket and protect the horse from the weather after his delivery to Massey at Dallas would be contributory negligence. The court for that reason, if for no other, was justified in refusing to give it.

We think the court fairly submitted the issues, and in a way that did not mislead the jury, and there was no reversible error in failing to give the requested charges that were refused.

The evidence, while conflicting upon the issue of negligence, was, we think, sufficient to support the verdict of the jury; and the judgment of the district court is accordingly affirmed.

WILLSON, C. J., did not sit in this case.

On Motion for Behearing.

HODGES, J.

In the motion for rehearing our attention has been called to the fact that this case was tried before the act of 1913 referred to in the original opinion was passed. It follows that the failure to comply with the provisions of that act furnishes no reason for refusing to consider the assignments. It is but just to counsel for plaintiff in error that this correction be made. However, most of these assignments are briefed and presented in a manner which fully warrants a refusal to consider them upon other grounds. The fifth and sixth are as follows:

“(5) The court erred in its charge to the jury, and particularly in advising the jury ‘that it was the duty of the defendant to exercise' ordinary care to furnish a reasonably suitable car for the shipment of plaintiff’s horse,’ because no issue as to suitability of the car furnished was made by the evidence; all the credible evidence showing that a proper .and suitable stock car was in fact furnished. This error was called to the attention of the trial court in defendant’s motion for a new trial.” (Tr. p. 20.)
“(6) The court erred in its charge to the jury, and particularly in charging the jury on the alleged duty of defendant to furnish a reasonably suitable car for the transportation of the horse involved herein, because the overwhelming weight of the evidence showed that a proper and suitable car — that is to say, a stock car — was in fact furnished. This error was called to the attention of the trial ■court in defendant’s motion for a new trial.” (Tr. p. 20.)

Tlie statement which follows these assignments consists mainly of excerpts from the testimony. Nowhere is there any effort to point out more particularly the portions of the charge objected to.

Next in the order of arrangement in the brief are assignments numbered 10, 11, and 12, which are equally as vague and indefinite. The thirteenth assignment is a little more specific, but is without merit. The fourteenth assignment contains an extract from the court’s main charge, but presents no reversible error. The questions involved in these assignments are not new, and there is no occasion to discuss them in detail.

The motion for a rehearing is overruled.

WILLSON, O. J., not sitting in this case.


author: RAINEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. HUGHSTON.
    (Court of Civil Appeals of Texas. Dallas.
    March 14, 1914.)
    1. Appeal and Error (§ 928) — Review-Presumptions — Instructions — Evidence Not in Record.
    In the absence of a statement of facts, the appellate court could not pass. upon the merits of assignments complaining of instructions since, though the instructions were erroneous, it would be presumed that the evidence, if presented, would render such errors harmless.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.)
    2. Appeal and Eebor (§ 571) — Statement op Facts — Compelling Approval — Mandamus.
    A party can, by mandamus, compel the trial judge to approve a statement of facts when the judge wrongfully fails or refuses to approve it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2550-2553; Dec. Dig. § 571.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Action by A. P. Hughston against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and G. R. Smith, of McKinney, for appellant. Wallace Hughston, of McKinney, for appellee.

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

   RAINEY, C. J.

Judgment was rendered in this case against the appellant in favor of appellee for injuries to certain shipment of grain, and appellant prosecutes this appeal.

Three assignments of error complain of the charge of the court, and one that appellant was wrongfully deprived of a statement of facts.

There being no statement of facts in the record, we are unable to pass upon the merits of said assignments. If the charges complained of are not the law, the evidence, if presented, might show that said charges were harmless, or that no other proper judgment should have been rendered; hence we will presume the judgment is correct.

As to the assignment that appellant was wrongfully deprived of a statement of facts, it is sufficient to say that appellant did not resort to all the remedies afforded it by law to secure a statement of facts. If the judge was in fault in refusing or failing to approve a statement of facts, the parties not having agreed on one, the appellant had the right to sue out a writ of mandamus requiring the judge to act in the matter. Such writ was not applied for. Osborne v. Prather, 83 Tex. 208, 18 S. W. 613.

Therefore the judgment is affirmed.


author: TALBOT, J.

text:
    HARRIS v. PARR.
    (Court of Civil Appeals of Texas. Dallas.
    March 21, 1914.)
    1. Trial (§ 139*) — Taking Case from Jury-Weight or Evidence.
    It is error to direct a verdict against a party where there is evidence in his favor, .even though the weight of the evidence is against him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. § 139.*]
    2. Reformation of Instruments (§ 45*) — Evidence — Mistake.
    In an action to reform a deed on the ground of mistake, whereby more land was conveyed than was intended, evidence held to show conclusively that a mutual mistake existed, and to warrant a directed verdict for the plaintiff.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. § 45.*]
    3. Reformation of Instruments (§ 25*) — Defenses — Failure to Read Instrument.
    The mere fact that a grantor did not read the deed, or did not know of the mistake in the description at the time of its execution, would not bar his right to a reformation of it on account of mistake or fraud.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 84-90; Dec. Dig. § 25.*]
    Appeal from District Court, ■ Hunt County; Horton B. Porter, Judge.
    Action by James K. Parr against Perry Harris to reform a deed. Judgment for the plaintiff, and the defendant appeals.
    Affirmed.
    Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.
   TALBOT, J.

Appellant, Harris, and appel-lee, Parr, entered into a written contract on the 2d day of August, 1911, for the sale and exchange of certain lands. The property of the appellee consisted of certain lots, with the improvements thereon, situated in the city of Hillsboro, Hill county, Tex., and the property of appellant was a farm situated in Grayson county, Tex. One of the lots owned by the appellee and agreed to be sold and exchanged is described in said written contract as being 50x100 feet on East Eranlslin street, west of the Gebhardt Bakery, and on the north side of said street. Subsequent to the execution of this contract appellee executed and delivered to appellant a warranty deed for the property agreed to be conveyed in said contract, in which the said lot 50x100 feet on East Franklin street is described as being 50x200 feet, instead of 50x 100 feet, as described in the contract. On June 22,1912, appelle.e brought this suit alleging, in substance, (1) that the change of the length of the line of this piece of property in the deed from 100 to 200 feet was error made by mutual mistake; (2) that, if the error was not by mutual mistake of the parties, then that the appellant, Harris, knew at the time he accepted said deed that the same was not in accord with the terms of the written contract theretofore entered into, and that appellee did not know that fact, and that appellant, in accepting said deed with knowledge of the error, perpetrated a fraud upon the appellee. The prayer of appellee’s petition was that he have judgment correcting the said error in said deed, and that the cloud thereby cast upon his title be removed. Appellant denied that there was a mistake in the description of the property, and alleged, in effect, that the property as described in the deed was the property shown him by appellee’s agent, and the same property intended to be sold and conveyed to him. The trial of the ease resulted in an instructed verdict for appellee, and the appellant perfected an appeal to this court.

The single assignment of error complains of the court’s action in charging the jury to find for the plaintiff. The proposition advanced is that “when, upon an issue before the jury, there is evidence in favor of .either party, it is error for the court to charge the jury to return a verdict against such party, even though the weight of the evidence is against him.” This proposition embodies a correct principle of law, and, if the record disclosed any substantial evidence upon which a finding in favor of appellant upon the question of mutual mistake in the preparation of the deed could have been predicated, the assignment under consideration would have to be sustained. No such evidence, however, is pointed out in appellant’s brief, and the assignment must be overruled. The statement made in support of the assignment shows t'hat the pleadings of the parties presented an issue of fact with respect to the claim of mutual mistake in describing the property sold in the deed; but it does not show that said issue was raised by the evidence. The only evidence quoted in the statement, or to which we are referred, to sustain the assignment is as follows: Appellee testified in Ms own behalf that: “I had the deed before me, and had an opportunity to read it; but I relied on Mr. Simmons. I am an attorney at law, and have had some experience and practice in conveying land and having land conveyed to me, and have had a great many important transactions in which I conveyed real estate and had real estate conveyed to me.” Appellant testified: “I got up on the box out against this back wall and looked out at this lot [the lot in question] and told him [the agent] I think while I was standing on that box. * * * He told me that Parr got no revenue from this lot. The first time I learned that there was any question about my being entitled to the entire property was when I was ready to trade it off, something like a year after I received the deed.” On the other hand, appellee points out that the property over which the controversy arose is described in the written contract as being 50x100 feet, and that appellant testified: “The lot is situated, as I understand it, on East Franklin street, having a building on it occupied by the Moore Hu-stead Company as a buggy store; the building being situated on a lot 50x100 feet. The lot about which the question has arisen is the one which is situated just back of this buggy company. That lot is No. 6, I understand; I am not sure about that. I think there are more than two lots there. The ■lot upon Franklin street is 51 and a fraction feet; I understand that is what the deed called for. My contract here says that I am getting 50x100 feet. I can read and write. The contract was dictated and read, and I signed it.” As will be observed, appellant’s statement simply shows that appellee had the deed executed by him to appellant before him; that appellee had art opportunity to .read it, and that he was a lawyer experienced in conveying land; that appellant, in examining the property with a view of buying, got upon a box .and looked out at the lot in controversy; that he was then told that Mr. Parr, the appellee, got no revenue from this lot; that this was before the contract was signed; and that the first time he learned there was any question about his being entitled to the entire property was when he was ready to trade it off. This seems to be all that appellant has been able to glean from the record in support of Ms contention that the evidence raised the issue of whether or not there was a mutual mistake in describing the property in the deed, and it is clear it raises no such issue. On the contrary, it is maMfest from the statements quoted that appellee had only agreed to convey a lot on the north side of East Franklin street 50x100 feet, and not one 50x200 feet. The contract of purchase and sale, executed before the making of the deed, and with the terms of which appellant must have been acquainted, specifically described this property as being 50x100 feet, and the witness Lang testified, as shown by appellant’s brief, that he pointed the property out to appellant, and remembers distinctly that he told him that the property that was being offered for sale or trade in that particular locality was 50x 100 feet, and the witness Simmons, who prepared the deed, admitted that he made a místate, in that he failed to describe the property as it 'was describe!} in the contract. Our conclusion is that the evidence shows conclusively that there was a mutual mistake made in describing the lot in controversy as being 200 feet long, instead of 100 feet long, and that the instructed verdict for its reformation was correct.

The mere fact that appellee may not have read the deed, or did not know of the mistake, at the time of its execution would not bar his right to a reformation of it on account of mistake or fraud. Harry v. Hamilton, 154 S. W..637.

The second and third propositions presented, to the effect that the certificate of acknowledgment of 'a deed is conclusive of the facts therein stated, unless fraud or imposition, in which the grantee participated, is proven, and that a deed absolute will be construed according to the plain import of its language, do not arise in this case, and need not be considered.

The judgment is affirmed.


text:
    HACKLER v. INTERNATIONAL TRAVELERS’ ASS’N.
    (Court of Civil Appeals of Texas. Texarkana.
    March 12, 1914.)
    1. Trial (§ 141) — Question fob Court.
    In an action on an accident policy, where the question for determination was whether an amendment to a by-law set up as a defense was duly adopted, and the evidence as to the adoption was without dispute, the court should decide the question as a matter of law.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.]
    2. Insurance (§ 54) — Mutual Accident Association-Amendment to By-Laws.
    A notice sent by a mutual assessment accident association, informing the members that proposed amendments to the by-laws would be acted on at the regular monthly meeting of the directors, Saturday, December 9th, is not sufficient under Rev. St. 1911, art. 4809, declaring that before the adoption of any by-laws or amendments, the same must be mailed to all members of the association, together with a notice of the time and place when they would be considered, for the notice did not inform the members of the hour of the meeting, or where it would be held, and the directors, unless otherwise prevented by the by-laws, have the power to select the place of meeting.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 66; Dec. Dig. § 54.]
    3. Corporations (§ 298) — Directors—Powers.
    Unless the by-laws otherwise prescribe, the directors of a corporation may select the place of meeting, and they are not bound to meet at the principal place of business of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1192, 1205, 1206; Dec. Dig. § 298.]
    4.Insurance (§ 54) — Mutual Accident Association — By-Laws—Amendments.
    Where the notice that proposed amendments to the by-laws of a mutual assessment accident association would be considered at the next regular meeting of the directors did not specify the place of meeting, that a member, who claimed that the notice was insufficient under the statute to render the adoption of the amendments of any effect against him, knew the location of the main office of the association at which place the meeting was actually held, is immaterial, and cannot validate the defective notice. J
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 66; Dec. Dig. § 54.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by George Henry Hackler against the International Travelers’ Association. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    Appellant brought the suit against appel-lee association, claiming that he suffered total disability to labor for 7 weeks and 1 day, and partial disability to. labor for 17 days, by reason of both bones in his right leg being broken by accidental means, entitling him, under the certificate issued to him, and by the laws of the association, to the sum of $202.55. The association answered that the plaintiff’s injury was received as a result of and while riding a motocycle, and that under the contract of insurance, and by virtue of section 6, art. 7, of the by-laws in force and existence before and at the time of the injury, the association is not liable for any injuries received by any member under such conditions. The plaintiff by sup--pleméntal petition replied that section 6, art. 7, as set up in the answer, is an amendment of the by-laws made since he became a member and obtained his certificate, and that such amendment is invalid as to the plaintiff because the association did not, before the adoption of the amendment, cause the same to be mailed to all the members and directors of such association, together with notices of the time and place when the same would be considered, and same was not so mailed 10 days before the time of such meeting, as required by the statute of the state. In accordance with the verdict of a jury judgment was entered for defendant. The facts admittedly proven are that the appellant was duly admitted into membership in the appellee association in June, 1911, and a certificate was issued to him October 5, 1911, providing for payment of $25 per week when there is disability to labor arising from bodily injuries caused by external, violent, and accidental means. The by-laws of the association provide payment of $10 per week for five weeks for partial disability to labor. By the application for membership and the certificate of indemnity issued it was agreed that the insured would be governed by the by-laws of the association then in force and thereafter to be enacted, and that all payment and liability for benefits shall be in accordance with the by-laws then in force and such amendments or additional laws as thereafter should be enacted. At the time appellant was admitted to membership and his certificate was issued to him there was no law of the association prohibiting or forbidding payment of indemnity for disability occasioned “while riding motocycles.” The appellee association is a mutual accident insurance company, doing business on the assessment plan, and incorporated under the laws of Texas on June 11, 1903, with the charter designating the principal office of the association as Dallas, Dallas county, Tex. Appellant resides in Dallas, Tex., and has resided there all the time during his membership. On the 28th day of September, 1912, the appellant was riding on a motocycle, and in going around a curve in the public road at ordinary and moderate speed the mo-tocycle hit a rock, and appellant was pitched forcibly to the ground, and both bones of his right leg were broken thereby. Appellant at the time of his injury was a member in good standing, and proper proofs required by the association were submitted. Tfie length of time of disability and amount sued for are proven and not contested. The evidence pertaining to the by-law in question is set out further on in discussing the law applicable thereto.
    Wood & Wood, of Dallas, for appellant. Seay & Seay, of Dallas, for appellee.

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

   LEVY, J.

(after stating the facts as above).

The principal question, it appears, made on the trial of the case, and presented by proper assignments here, is whether or not the amended section 6 of article 7 of December 9, 1912, of the by-laws of the association was legally enacted on proper legal notice. It is not doubted that if the amended section was in legal effect, it was binding on the appellant at the time of the accident under the terms of his contract, and he would be precluded of any recovery by reason thereof. And as- the evidence in respect to the adoption' of the amendment was without dispute, it was incumbent upon the court to decide the question as a matter of law. Article 7 of the by-laws of the association, as originally existing, was, in November, 1911, considered by the officers of the association necessary to be amended by adding thereto, as pertinent here, that the association shall not be liable for any indemnity or benefit for injuries or disabilities resulting “while riding motocycles.” The subject-matter of exception mentioned was not in the original section that was in force when appellant became a member on June 11, 1911. The proof in respect thereto admittedly shows that at a regular monthly meeting of the appellee association held in Dallas, Tex., on December 9, 1911, the amendment referred to above of the by-law in question, besides other amendments, was adopted and put into force and effect. Thirty days before December 9, 1911, the secretary and treasurer of the association caused to be mailed to each member and director of the association a notice written on the letter head of “Wm. Hancock, Secretary International Travelers’ Association, Dallas, Texas,” reading as follows: “To the Members. Please,note. Amendment to By-Laws International Travelers’ Association. Dallas, Texas, Nov. 4, 1911. Dear Sir: In compliance of the laws of our association and of the laws of Texas we hereby file the foregoing amendments to the several sections and articles mentioned herein, same to be acted upon at the regular monthly meeting of the board of directors Saturday, December 9, 1911 [here follows, fully set out, the several sections of proposed amendments to be acted upon, under the signature of directors].” This was the identical and precise notice mailed to each and every member of the association. The appellant testified that, he never received the notice or amendment at any time, and did not attend the meeting, and did not know there had been a meeting or an amendment until after the accident. There is no evidence, through by-laws or otherwise, going to show that the association fixed the particular locality or office or building where the board of directors of the association shall have its meetings, or the time of regular meetings; but the inference of fact is that December 9, 1911, was a regular meeting: The charter of the association fixes its principal office at Dallas, Tex., and the benefit certificate offered in evidence states at its foot, and it is likewise so indorsed on the back, that its. home office is Dallas, Tex. Appellant testified: “I knew where their office was, and knew I could get a copy of the by-laws. They are supposed to mail out the by-laws whenever they change them. I am acquainted with Mr. Hancock; he is secretary and treasurer of the Interna1 tional Travelers’ Association. In June, 1911, I became a member of this association, and at that time I think this same Mr. Hancock was secretary and treasurer of the association, which said association had an office in Dallas, Tex., and did business there, and its office was in the Wilson Building.” Pie further said: “I never attended any of the annual meetings of the association. I received a notice in January after I was hurt that they were going to have a meeting on January 14th at the Oriental Hotel,, but I was unable to attend. ■ The first I ever learned that-there was any amendment to the bylaws which excepted motocycle riding was in February, when I went to Mr. Hancock and asked him why he had not mailed my check.” The above are the facts shown by the record in respect to the question in hand.

The statute of this state, of 1911, having peculiar application to the appellee association, by article 4800, provides: “Every such corporation must, before the adoption of any by-laws or amendments thereto, cause the same to be mailed to all the members and directors o£ such association, together with the notice of the time and place when .the same will be considered, and same shall be so mailed at least ten days before the time for such meeting; provided that the provisions of this article shall not apply to by-laws adopted within sixty days after the incorporation of such company.” By this section proper notice to all the members of the association is made a prerequisite act to the valid exercise of authority on the part of the board of directors to enact amendments to by-laws. It relates to the jurisdiction of the board of directors to act. It is a well-established rule that when the exercise of corporate power has been regulated by statute, compliance with the statute is essential to the validity of the proceeding. Testing the notice mailed to each member, set out above, by the statute, it appears deficient of compliance with its terms in failing to designate the “place” where the board of directors would consider and take action upon the adoption of the amendments. And the precise hour of the assembling, if it should be required by the statute, is not given. A member reading the notice would readily understand from its face that he was receiving through mail an official notice from the appellee association, issued from Dallas, Tex., that on December 9, 1911, the board of directors would consider, with the view of adoption, the attached amendments proposed to the several sections of the bylaws of the association, and that he, as a member of the association, was so informed thereof. But it could not fairly and properly be said that the member was informed and could understand from the face and words of the notice that a meeting “place” was designated. It not appearing by proof that the by-laws of the association prescribed the place where the regular monthly meeting of the board of directors should be held, the member could not take the notice and the by-laws and determine the place. When the by-laws do not prescribe the place where the directors shall hold regular meetings, the directors themselves have the right to fix the place of any meeting, and they are not bound to meet at the principal place of business of the corporation. One of the essential elements of a notice is the place of meeting. 2 Cook on Corporations (6th Ed.) § 595.

It is believed that the by-law in this case relied on as a defense has not been legally enacted, because of the failure to designate in the notice required by law to be given the “place” where the amendment was to be considered by the board of directors. It is entirely immaterial that the appellant knew where the home office of the association was located. The sufficiency of the notice, being a jurisdictional matter affirmatively required for a valid meeting by the board of directors, must be determined entirely from the words of the notice. The statute directs that the “notice” give the time and place of meeting. As a fact appellant did not know of the meeting, and did not attend, and estoppel is not pleaded nor proven.

As the record is made, the judgment must be reversed and here rendered for appellant for $202.55, and all costs of the court below and of appeal.


author: HUFF, C.' J.

text:
    A. J. BIRDSONG & SON et al. v. ALLEN.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.)
    1. Appeal and Error (§ 712) — Record — Matters Not Shown — Jurisdiction.
    Where the notation of the pleadings of an action begun in justice court made on the docket in accordance with Rev. St. 1911, art. 2326, did not show whether the amount in controversy would give jurisdiction to the Court of Civil Appeals on an appeal from the county court, the Court of Civil Appeals may, under the article 1593, inquire into the facts to ascertain whether it has jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2951-2954; Dec. Dig. § 712.)
    2. Appeal and Eeror (§ 65) — Jurisdiction —Amount in Controversy — Cases Arising in Justice Courts.
    In an action begun in justice court, plaintiff sought to recover against one of the defendants on two notes, and against appellants for the conversion of cotton mortgaged to secure payment of the notes. The value of the cotton did not appear from the notation of the pleadings made on the docket of the justice, and neither did the amount due on the notes. Held that, where the agreed statement of facts showed that the value of the cotton was in excess of $100, the Court of Civil Appeals had jurisdiction of an appeal from the judgment of the county court also in favor of plaintiff, even though the amount of the debt was less than $100, and the county court restricted recovery to that amount.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Action by W. V. Allen against A. J. Birdsong & Son and another, begun in justice court, and appealed by the named defendants to the county court. From an adverse judgment there, they again appeal. On motion to dismiss.
    Motion denied.
    Sporer & McClure, of Jacksboro, for appellants. Fitzgerald & Cox, of Wichita Falls, for appellee.

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

   HUFF, C.' J.

The appellee moves to dismiss this appeal on the ground that the amount in controversy is less than $100, and that this court is without jurisdiction. The ease originated in the justice court, and was appealed to the county court. The notation on the justice docket shows that it was a suit brought by W. V. Allen, and R. O. Wilson, and A. J. Birdsong & Son. The notation upon the justice docket is as follows: “Upon two notes for $68 each, dated January 1, 1911, due one 11/1/1911, the other, 11/1/ 1912, int. 10%, and attorney’s fees 10%, filed 1st day of November, 1912, against A. J. Birdsong for the value of two bales of cotton.” The notes appear to have been executed by R. O. Wilson, payable to W. V.' Allen. The appellant, in answer to the motion to dismiss, sent up a duly certified copy of the citation issued out of the justice court in’this case, directed to R. O. Wilson and A. J. Birdsong, which states the cause of action or demand to be “for the sum of $167, due upon the two promissory notes of date January 1, 1911. One note due November 1, 1911, the other note due November 1, 1912; both notes being in the sum of $68 each, 10% interest, and 10% attorney’s fees, said last note being secured by chattel mortgage on the first two bales of cotton grown by said R. O. Wilson during the year 1912. The defendant A. J. Birdsong is made a party hereto and sued for the value of the said two bales of cotton on which plaintiff has a mortgage; he having converted said cotton to his own use and benefit.”

A. J. and J. O. Birdsong, as a partnership, answered this cause by a written plea filed in the justice court, to the effect that they owned the land upon which the cotton was grown, and that they knew nothing of the mortgage set out, and made advancements to Wilson to the sum of $509.29; and further alleged at the time the chattel mortgage was given Wilson did not own the cotton, and no chattel mortgage lien given by Wilson could attach thereto, and that the cotton was Birdsong’s, and not Wilson’s, etc. Judgment was rendered in the justice court against Wilson on the note secured by the mortgage for $90.35, and against A. J. Birdsong & Son for $90, for converting the cotton. Birdsong & Son appealed to the county court of Jack county. The appellee herein insists that the statement of the county judge in his charge to the jury, in setting out what appellee terms the pleadings or issues, should determine the amount in controversy. The statement therein is substantially that ap-pellee sues’ appellant for the conversion of two bales of cotton to the amount due upon the $68 note, interest, and attorney’s fees. Judgment was rendered in the county .court against Birdsong & Son for $91.60, in favor of Allen, from which judgment appeal is taken.

The appellee, for the motion, asserts that the amount in controversy was not the value of the security, but the amount of the debt secured. The amount of the debt secured may be the measure of his damages-for conversion and all he is authorized to-recover, and perhaps the authorities cited by appellee sustain the proposition (Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715; Scott v. Cox, 30 Tex. Civ. App. 190, 70 S. W. 802; Watkins v. Bank, 53 Tex. Civ. App. 437, 115 S. W. 304); and it may be true, as-asserted by appellee, that the controversy between Allen and Wilson is distinct from, that between Allen and Birdsong, and that we should look to the amount in controversy between appellant and appellee in order to-determine our jurisdiction (Brown v. Cates, 99 Tex. 133, 87 S. W. 1149). It does not follow, however, that the amount which Allen was entitled to recover was the amount in controversy. The amount in controversy is to be determined by the claim in the plaintiff’s petition or his statement in the-justice court. Red Deer Oil Co. v. Huggins,. 155 S. W. 949, and authorities cited therein. The pleadings in the justice court are oral; “but a brief statement thereof may be noted, on the docket.” Article 2326, R. S. 1911. The notation in this case on the docket and; in the citation is that Allen sues Birdsong for the value of two bales of cotton. The citation is for the conversion of two bales of cotton. Appellee did not allege the value-of the cotton for which he sued. We think, we have the right, under the statute, to hear-testimony or otherwise determine our jurisdiction aside from the statement of the pleadings. Article 1593, R. S. 1911; Austin v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430. In looking into the record in this case-agreed to by both parties, we find that the-value of the cotton is admitted to be $132.69, which is an amount sufficient to give this-court jurisdiction of the appeal. While ap-pellee, under the law, could not ordinarily recover from appellant more than the amount of his debt against Wilson, secured by the-mortgage- on the cotton, he nevertheless put in issue his right to recover the value of' the cotton, and not the amount of the debt, and made the value of the cotton the amount of the controversy. We do not think, because the county court confined his right to. recovery to the amount of his debt, that he should now be heard to say that was the amount in controversy in order to defeat the jurisdiction of the appellate court. Piano Co. v. Clay, 40 Tex. Civ. App. 638, 90 S. W. 683; Drug Co. v. Rochelle, 135 S. W. 258.

We believe, under the statement of the amount sued for as noted upon the docket, and in the citation, that this court has jurisdiction to entertain the appeal; and the motion is therefore overruled.


author: PLEASANTS, C. J.

text:
    FIELDER et al. v. HOUSTON OIL CO. OF TEXAS et al.

    (Court of Civil Appeals of Texas. Galveston.
    Jan. 21, 1914.
    On Appellants’ Motion for Rehearing, Feb. 19, 1914. Appellees’ Motion for Rehearing Denied March 5, 1914.)
    1. Public Lands (§ 175) — Location—Conflicting Locations.
    Under Const. 1869, art. 10, § 3, providing that the location of land certificates, made subsequent to October 30, 1856, shall be void when made upon land previously titled, and the present Constitution (article 14, § 2), providing that all genuine land certificates shall be located only upon vacant public domain, and not upon any land titled or equitably owned under color of title from the state, evidence of the appropriation of which is on the county records or in the General Land Office, a mere apparent conflict shown upon an inaccurate map or by erroneous certificates of survey will not invalidate a subsequent location, if there is no actual conflict on the ground.
    [Ed. Note. — For other cases, see Public Lands. Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    2. Public Lands (§ 175) — Location—Suspension of Location — “Close of the Was.”
    6 Gam. Laws, p. 669, approved December 14, 1863, provided that until six months “after the close of the present war” all laws authorizing the location, survey, or sale of any public land except as therein provided for are hereby suspended. That act was repealed by Act Oct. 20, 1866 (Acts 11th Leg. c. 44). Held that the “close of the war” would be dated, for the purposes of the statute from May, 1865, when the war actually closed in Texas, and not from August 20. 1866, when the President issued a proclamation declaring the war closed in Texas.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.]
    3. Evidence (§ 11) — Judicial Notice — Historical Facts — Close of Civil War.
    The Court of Civil Appeals knows as a matter of history that the Civil War actually closed in Texas in May, 1865, when the-Confederate forces surrendered to the federal government.
    [Ed. Note. — For other cases,' see Evidence, Cent. Dig. §§ 15, 16; Dec. Dig. § 11.]
    4. Statutes (§ 219) — Construction—Administrative Construction.
    An interpretation placed upon a statute by administrative officers, and consistently followed for a number of years, is entitled to much weight in construing the statute.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. § 219.]
    5. Statutes (§ 220) — Legislative Construction.
    The interpretation placed by one Legislature upon a statute enacted by another cannot be given controlling effect by the court in construing the statute.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 298; Dee. Dig. § 220.]
    6. Adverse Possession (§ 31) — Sufficiency of Possession.
    The actual possession of 15 or 20 acres of a 160-acre tract cannot, as a matter of law, be held insufficient to give notice to the owner of the 160 acres that the person in possession was claiming a part of it, though the latter supposed when he first went upon the land that it was vacant public land, where he continued to claim the land after learning that it was not.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. § 31.]
    7.Lis Pendens (§ 24) — Application of Doctrine.
    The doctrine of lis pendens only applies to one who purchased from defendant after service of citation.
    [Ed. Note. — For other cases, see Lis Pen-dens, Cent. Dig. §§ 38-40, 42-46; Dec. Dig. § 24.]
    On Motion for Rehearing.
    8. Statutes (§ 167) — Repeal.
    Section 4 of the act adopting the Revised Civil Statutes of 1895 (Rev. St. 18§5, p. 1103) provides that all civil statutes of a general nature in force when the Revised Statutes took effect, and not included therein, or not expressly continued in force, were thereby repealed, but section 7 provides that no general or special law, validating or legalizing the acts or omissions of any officer or any act whatever, should be affected by the repealing clause, but all validating statutes were thereby continued in force. Held that section 7 continued in force Act April, 1871_, providing that all surveys,' properly made by virtue of a valid land certificate, not in conflict with any valid claim, should be deemed valid, and patents should be issued thereon, though the act of 1871 (Acts 12th Leg. c. 56) was omitted from the Revised Statutes of 1895.
    [Ed. Note. — For other cases, see Statutes, Gent. Dig. §§ 242, 243; Dec. Dig. § 167.]
    9. Public Lands (§ 175) — Surveys—Suspension of Location — “Locations Properly Made.”
    Under Act April, 1871 (Acts 12th Leg. c. 56), providing that all surveys, properly made by virtue of genuine or valid land certificates, which surveys, with the certificates, were on file in the General Land Office and not in conflict with any valid land claim, should be deemed valid and patents should be issued for same, did not validate a location made without legal authority, as at a time when the laws authorizing locations of public land were suspended by statute; the clause “locations properly made” meaning locations made by authority of law.
    [Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 555-570; Dec. Dig. § 175.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by Alice G. Fielder and others against the Houston Oil Company of Texas and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed in part, and reversed and remanded in part.
    John I-Iamman, of Houston, and Oliver J_ Todd, of Beaumont, for appellants. High-tower, Orgain & Butler and W. D. Gordon, all of Houston, and Minor & Minor, of Beaumont, for appellees.

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

       writ of error granted by Supreme Court.

   PLEASANTS, C. J.

This is an action of trespass to try title, brought by appellants against the appellees, to recover a survey of 480 acres of land in Hardin county located and surveyed by virtue of bounty warrant No. 67, issued by the Republic of Texas to John Lewis. The suit was originally against a number of defendants, but plaintiffs before the trial dismissed as to all the defendants except the appellees Houston Oil Company, R. H. Kirby, and R. S. Stephens. The Houston Oil Company answered by general demurrer and plea of not guilty, and by pleas of limitation of three, five, and ten years, and plea of stale demand. R. IT. Kirby filed a like answer. The defendant R. S. Stephens disclaimed as to all of the land except a tract of 160 acres described in his answer, as to which he pleaded not guilty and limitation of three, five, and ten years. The trial in the court below without a jury resulted in a judgment in favor of all of the defendants.

The evidence shows that the bounty warrant issued to John Lewis was legally issued and was a valid and genuine land warrant. It was assigned by John Lewis to Joel Burt on November 6, 1857. Appellants are the heirs of said Burt. This warrant was located on the land in controversy on July 21, 1866, and, together with the field notes of said survey, was returned to the General Land Office on August 1, 1866. In these field notes the distance of the ninth course in the calls was omitted, and they were returned to the surveyor for correction. This correction was made on May 16, 1867, and the corrected field notes returned to the General Land Office and filed therein on June 7, 1867. This location was made upon vacant and unappropriated public land, but from the map on file in the Land Office at that time showing the location of the Lemuel Watson and Maria Zimines grants, both of which were then titled, the John Lewis was embraced in said grants. The map of Hardin county in 1841 also shows that the Watson survey and the T. O. Gaines survey, which was also titled at the time the Lewis location was made, conflict with said location. The trial judge in his conclusions -of fact expressly finds “that at the time the John Lewis survey was located and surveyed upon the ground, same was not in conflict with any prior survey on the ground.” The evidence fully sustains this finding.

The court further found that the defendant Stephens and those under whom he claims had held peaceable and adverse possession of the 160 acres claimed by said defendant for more than 10 years before this suit was brought “residing upon, using, cultivating, and enjoying the same.” The evidence sustains this finding, and shows that such possession was continuous and under a claim of right, and was’ actual and visible as to a portion of said 160 acres.

It appears from the record that the General Land Office for a number of years regarded the John Lewis location void because from the Land Office maps it was apparently covered by prior locations, and for this reason the Lewis survey was not patented. It seems, however, that in 1870 the surveyor from whose survey and field notes the location of the Maria Zimines grant was fixed on the Land Office map certified to the Land Office that his' former certificate showing the location of said grant was incorrect, and that he did not know .where said grant was located. Subsequently the Lewis location was covered by locations made in the names of R. O. Grane and Mary Hopkins, and patents were issued on said locations on December 9, 1901,' and December 4,1901, respectively. The appellees claim title under these patents. The trial cohrt held that the Lewis location was void upon two grounds: First. Because at the time it was made the Civil War had not been closed for six months, and under the act of December 14, 1863 (5 Gam. Laws, 669), which was then in force, such location was unauthorized. Second. Because such location was, according to the maps and data of evidence then in the General Land Office, in conflict with older locations, and this rendered the Lewis location void, notwithstanding the fact that it did not actually conflict on the ground with any older location.

We think neither of these conclusions is sound. Taking up the propositions in the reverse order in which they are stated, it seems clear to us that to render a location void because in conflict with an older location, there must be an actual conflict on the ground, and not merely an apparent conflict, shown upon an inaccurate map or by erroneous certificates of survey. The Texas Constitution of ,1869 (article 10, § 3) declares, in substance, that the location of all land certificates made subsequent to October 30, 1856, shall be held void when made upon land previously titled. Manifestly a location of a valid land certificate could not be held void under this constitutional provision unless such location actually conflicted with a prior grant. Unless the land covered by the location was actually included within the boundaries of a previous grant, such location would not be upon land previously titled. Section 2, art. 14, of the present Constitution of this state contains the following provisions: “Provided, that all genuine land certificates heretofore or hereafter issued shall be located,. surveyed or patented, only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under color of title from the sovereignty, of the state, evidence of the appropriation of which is on the county records or in the General Land Office; or when the appropriation is evidenced by the occupancy of the owner, or of some person holding for him.” The inhibition in this provision of the Constitution is against locating or patenting “land titled or equitably owned under title or color of title from the sovereignty of the state.” The clause “evidence of appropriation of which is on the county records or in the General Land Office” is a limitation upon the inhibition, in that it qualifies the clause “land titled or equitably owned under color of title from the sovereignty of the state.” There must have been a prior location on the ground held under title or color of title from the state, and such prior appropriation must be evidenced by the records of the county, or of the General Land Office, or by occupancy. A prior location not evidenced as required would not defeat a junior location, and we think it goes without saying that, unless there was a prior location actually made on the ground, a map or other record, erroneously showing such location, would not defeat the right of one who had actually made the first survey and location on the land.

The other conclusion of the trial judge before stated presents a question more difficult of decision. By an act of the Legislature of this state approved December 14, 1863, it was provided “that until six months after the close of the present war all laws authorizing the location, survey or sale of any public land or land script, except in cases herein provided for, are hereby suspended.” 6 Gam. Laws, 669. The exceptions mentioned in this act do not include bounty warrant locations like that under which appellants claim; and, if this act was in force at the time said location was made, the validity of the location depends upon whether in the purview of this statute the war between the states had closed six months before July 21, 1SG6, the date said location was made. The learned trial judge held “that the Civil War did not close until it was declared closed by the proclamation of the President of the United States promulgated on August 20, 1866, declaring it closed on that date as to Texas.” In support of this conclusion the court cites the following cases: The Protector, 12 Wall. 700, 20 L. Ed. 463; Adger v. Alston, 15 Wall. 555, 21 L. Ed. 234; Lamar v. Browne, 92 U. S. 187, 23 L. Ed. 650, and other cases cited in 7 Rose’s Notes, U. S. Rep. 587, and also the cases of Grigsby v. Peak, 57 Tex. 142, Hargrove v. De Lisle, 32 Tex. 170, and Daniel v. Hutcheson, 86 Tex. 51, 22 S. W. 933. In none of the cases cited was the statute above set out under consideration, and we do not think the holding in these cases that the date of the President’s proclamation, August 20, 1866, declaring the war in Texas closed, should be taken as the date on which the war closed is controlling in construing the statute in question.

We know as a matter of history that the war actually closed in this state in May, 1865, when the forces which had theretofore been resisting the authority of the federal government surrendered. There was no actual -war after that time, no conflict carried on by force. So far as the people and government of this state were concerned the war then ceased, and it was never resumed. Nichols v. State, 30 Tex. 516; Clark v. State, 31 Tex. 576; Daniel v. Hutcheson, 86 Tex. 51, 22 S. W. 933.

The manifest purpose and intent of the act was to withdraw the public lands from location and sale while so many of those having a right to purchase or to locate land warrants were engaged in fighting the battles of the state, and for that reason were deprived of the opportunity to exercise such right. Fairness to those so engaged required the suspension of the laws authorizing the location and sale of the public lands in order that the most valuable and desirable of the lands could not be acquired by other’s who were not serving the state as soldiers. When the war actually ceased and the soldiers had all returned to their homes, the purpose of the act had been accomplished, and we think it would be unreasonable to hold that the Legislature in passing this act intended that the suspension of the laws authorizing the survey and location of the public lands should continue longer than six months after the actual close of the war, a sufficient time to give all of those engaged in the war time to return to their homes and resume their usual avocations, and thus secure to them an equal opportunity in selecting and locating upon the public lands.

It may be well enough for some purposes to take the date of the President’s proclamation as the date of the close of the war, but to fix that as the date upon which the war should be deemed closed as contemplated by the Legislature in enacting this statute is to extend its operation further than necessary for the accomplishment of its evident purpose, and to give it an effect not contemplated in its enactment. The General Land Office did not question the validity of this location on the ground that it was made within iess than six months after the close of the war, and was for that reason prohibited by the statute before quoted. The record shows that the validity of other locations made at this time was recognized and patents issued thereon. We know that peace had prevailed in this state for more than a year before this location was made, and that all of the departments of the state government were in full operation. To what extent locations were made upon the public lands during the period from six months after the close of the war to six months after the proclamation of the President, declaring it closed as to Texas, is not shown, but it is reasonable to presume that a number were made during that time, and we are unwilling to arbitrarily adopt the date of the President’s proclamation as the date of the close of the war, when by so doing we would probably invalidate many titles in this state the validity of which has never been questioned.

The interpretation placed upon the statute by the officers immediately charged with its administration and consistently followed by their successors is entitled to much weight; and, except for a notation appearing upon the file of the papers in the Land Office -in regard to this location, made long subsequent to the location in question by soine clerk, where authority is not shown, it does not appear that the legality of this location was ever questioned by the General Land Office on the ground that the laws authorizing locations on public lands were suspended at the time said location was made.

In May, 1905, the Commissioner of the General Land Office addressed a letter to the Attorney General, asking to be advised whether or not a patent should issue on this location. In this letter the 'Commissioner makes the following statements: “In 1866 a bounty warrant and field notes in the name of John Lewis for 480 acres in Hardin county were returned to and filed in this office. The survey was platted on the map but was for some cause now unknown omitted from subsequent maps and apparently lost sight of until within the last year or two, when the omission was discovered and the survey again placed on the map. This claim is considered by this department valid in every respect, and patent could be issued thereon so far as its regularity is concerned. However, subsequent to its location there were other locations made in the same territory and patented; it is also partly on what is known as the Maria Zimines titled grant along which there is considerable confusion as to its location. After stating that it is now and has been since the establishment of this department, so far as I am advised, the uniform custom of the office to never knowingly issue one patent to individual land upon another tract of patented individual land, I will ask you to advise me whether or not I shall now issue a patent on the John Lewis survey.” The statement, above quoted, that the survey had been dropped from the map and lost sight of until a few years previous to the date of the letter probably accounts for the fact that when it was discovered that the land covered by said location was not in conflict with previous surveys, the land was patented to junior locators instead of patent issuing on the Lewis location. At any rate it appears from this letter that the patent had not been, and was not then, withheld because of any supposed invalidity growing out of the date of the location. No question as to the validity of the Lewis location being presented by this letter, that question was not passed upon by the Attorney General’s office, but the land Commissioner was advised, in substance, that unless the location conflicted with a prior survey, patent should issue thereon under article 4176, Revised Statutes of 1895, notwithstanding the fact that patents for said land had theretofore been issued upon locations made subsequent to the Lewis location.

The trial judge and counsel for appellees cite the act of October 20, 1866 (Laws 1866, c. 44), repealing the act of December 14, 1863, suspending all laws authorizing locations on public lands, in support of the proposition that said suspending act was in force at that time, which was several months after the location in question was made. We do not think that the fact that the Legislature repealed the suspension act after the location in question was made is entitled to much force in determining whether said act was in effect at the time the location was made. The suspension act being upon the statute, and the Legislature knowing that it had accomplished its purpose, and not unlikely thinking that some question as to its continued effectiveness might arise, may, for these reasons, have deemed it best to repeal it. But it is not material what motive actuated the repeal. This was not the Legislature which passed the suspension act, and the interpretation placed by one Legislature upon the act of another cannot be given controlling effect in construing such act.

In April, 1871, the Legislature passed an act (Laws 1871, c. 56) containing the following provisions: “All surveys, properly made, by virtue of genuine or valid land certificates, which surveys, together with the certificates by virtue of which they were made, have been returned and are now on file in the General Land Office, and not in conflict with any valid land claim, shall be deemed valid, and the Commissioner of the General Land Office is hereby authorized and required to issue patents for the same.” This act appears in Paschal’s Digest as article 7089, and was carried forward in the Revised Statutes of 1879. It was omitted from the Revised Statutes of 1895 by report of the joint committee of the Legislature on amendments to the Revised Civil Code, and is not now a part of the statutes of this state. Vide Note art. 4157, Sayles’ Civil Statutes. We do not deem it necessary to determine whether or not this act, if in force, would have the effect of validating’ a location made during the time that the laws authorizing locations upon public lands were suspended. The case of Adams v. Ry. Co., 70 Tex. 276, 7 S. W. 729, leaves the question in doubt. We are of opinion, however, that if appellants’ contention that said act was intended to validate locations made at a time not authorized by law is correct, it cannot now have any effect upon the question of the validity of the Lewis location, because it is not now in force, and nothing was done by the holders of the Lewis claim during the time the act was in force by which they acquired any vested rights thereunder. They are in the same position now in regard to the question of the validity of the location as before the passage of the validating act.

There is no merit in appellants’ assignments of error complaining of the judgment of the trial court awarding the defendant Stephens the 160 acres of the land claimed by him under his plea of limitation. The actual possession of Henry Teel, the predecessor in title of appellee Stephens, of 15 or 20 acres of the 160 acres claimed by him cannot be held, as a matter of law, to have been a mere encroachment, and insufficient to give notice to the owner of the 160 acres that Teel was claiming a portion of Ms land. Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153. The fact that when Teel went upon the land he supposed it was vacant public land, and intended to acquire it from the state, in no way affected the adverse character of his possession and claim to the land after he discovered that it was not vacant public land, and the evidence shows that the adverse possession continued after such time for more than 10 years.

It appears from the record that in a suit against E. M. Yost et al., filed in the district court of Taylor county on August 26, 1902, E. N. Brown, on March 8, 1905, recovered a judgment against Henry Teel for 192 acres of land, which included the 160 acres claimed by the defendant Stephens undei his plea of limitation, and which was purchased by him from Teel on February 5,1903. Appellants contend that under these facts appellee Stephens is not entitled to recover on his plea of limitation, because, having purchased from Teel during the pendency of the suit before mentioned, he is bound by the judgment therein, and any title which Teel may have had to the land is outstanding in E. N. Brown, and such outstanding title, being a title by limitation, could not be available as a defense because not pleaded. Miller v. Gist, 91 Tex. 335, 43 S. W. 263. We think it clear that the facts before stated are not sufficient to show that Stephens was a purchaser lis pendens and therefore bound by the judgment rendered against Teel. The doctrine of lis pendens only applies to one who purchased from the defendant after service of citation in the suit. It is not shown when Teel was made a party to the suit, nor that he had been served with citation prior to the time he conveyed the land to Stephens. This being the extent of the evidence, Stephens cannot be held to be a lis pendens purchaser. Humphrey v. Beaumont Irrigation Co., 41 Tex. Civ. App. 308, 93 S. W. 180.

What we have said disposes of all the material questions presented by the appeal. We are of opinion that the judgment in favor of appellee Stephens for the 160 acres claimed by him should be affirmed, and as to the remainder of the tract claimed by appellants, the judgment of the court below should be reversed, and judgment here rendered in favor of appellants, and it is so ordered.

Affirmed in part.

Reversed and rendered in part.

On Appellants’ Motion for Rehearing.

In our main opinion in this case heretofore filed we erred in stating that the validating act of 1871, quoted in said opinion, was repealed by being omitted from the Revised Statutes of 1895. We were led into this error by the note in Sayles’ Civil Statutes, cited in the opinion. Section 4 of the act adopting the Revised Civil Statutes of 1895 (Rev. St. 1895, p. 1103) provides “that all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not expressly continued ip. force, are hereby repealed.” Under this provision the validating or curative act before mentioned would be repealed, but section 7 of the act adopting the Revised Statutes exempts validating acts from the operation of section 4, before quoted. Section 7 is as follows: “That no general or special law heretofore enacted validating or legalizing the acts or omissions of any officer, or any act or proceeding whatever, shall be affected by the repealing clause of this title; but all such validating or legalizing statutes whatsoever now in force in this state are hereby continued in force, and the same shall be as effectual for all purposes after as before the Revised Statutes go into effect.” Under this provision, which is also contained in the act adopting the Revised Statutes of 1911, it is clear that the validating act of April, 1871, which provides that “all surveys properly made by virtue of genuine or valid land certificates, which surveys, together with the certificates by virtue of which they were made, have been returned and are not on file in the General Land Office and not in conflict with any valid land claim, shall be deemed valid and the Commissioner of the General Land Office is hereby authorized and required to issue patents for the same,” is still in force. The evident p.urpose and intent of the Legislature in the enactment of section 7 above quoted was to preserve unimpaired any rights which might have accrued to any person under the provisions of any validating act in force at the time the Revised Statutes took effect, and the statement in our former opinion that appellants cannot assert any rights under said act is incorrect, and is withdrawn.

This being so, it is necessary for us to determine whether said validating' act had the effect of legalizing a location on public lands, made at a time when the laws authorizing such location were suspended. As stated in our former opinion, the question is not free from doubt. The clause “all surveys properly made” must be held to only mean .all surveys accurately or properly made as to running and locating the lines of the survey and their designation in the field notes, if the act is made to apply to a location not authorized to be made by law. On the other hand, if the survey was “properly made” in the sense that it was made in accordance with law, it can plausibly be contended that no validating act was - necessary, as any discrepancies in the location of its lines or in the field notes returned to the Land Office might, under the law, have been corrected, and therefore the Legislature in the passage of said act was engaged in a wholly unnecessary and useless task.

In tlie ease of Adams v. Ry. Co., 70 Tex. 252, 7 S. W. 729, our Supreme Court, in an exhaustive opinion by Justice Stayton, construes this and other acts regulating the location and survey of public lands and, as we understand the opinion, reaches the conclusion that the purpose of this act was to validate locations in which the surveys had not been made and the field notes returned to the Land Office within the time fixed by previous statutes. In other words, the purpose was to prevent the forfeiture of a right legally acquired, and not to validate an unauthorized attempt to acquire a right. This being the purpose of the act, we think the clause “locations properly made” should be construed to mean locations made by authority of law, and the act would not validate a location made without any legal authorization, or at a time when the laws authorizing such locations were suspended.

With this correction and addition we adhere to the views expressed in our former opinion and the motion for rehearing is overruled.