text:
    W. P. CARMICHAEL CO. v. MILLER.
    (No. 5445.)
    (Court of Civil Appeals of Texas. Austin.
    June 2, 1915.)
    1. Removal or Causes <&wkey;48 — Actions Removable — Pakties.
    An action for personal injuries against a corporation domiciled in a foreign state, and its foreman, a citizen of this state, as joint feasors, not being severable, is not removable to the federal courts.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 93, 94; Dec. Dig. <&wkey;> 48.]
    2. Master and Servant <&wkey;313 — Injuries to TniRD Persons — Parties.
    A master is responsible to third persons for the negligence of his servant in a joint action against both to recover damages for an injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent.'Dig. § 1238; Dec. Dig. <&wkey;>313.]
    3. Trial <&wkey;260 — Instructions — Instructions Covered.
    In an employé’s action for injuries, requested instructions covered by the general charge are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    4. Trial &wkey;>240 — Instructions—Argumentative Instructions.
    Argumentative instructions are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. &wkey;240J
    5. Trial <&wkey;194 — Instructions — Instructions on Evidence.
    Instructions upon the weight of evidence are properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413-436, 439-441, 446-454, 456-466; Dec. Dig. <&wkey;>194.]
    6. Trial &wkey;>253 — Requested Instructions— Further Instructions.
    It is error to refuse to give an instruction requiring the jury to pass directly upon an issue raised by the pleadings and evidence, and which is not sufficiently covered by the court’s main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]

      7. Mastee and Servant <&wkey;26&wkey;lNJURiES to Servant — Evidence—Admissibility.
    In an employe’s action for injuries due to falling from a scaffold it was error to admit evidence that a physician employed by defendant to treat plaintiff had mistakenly diagnosed the case and given improper treatment, in the absence of allegations of negligence in that respect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]
    8. Trial <&wkey;208 — Instructions as to Erroneous Evidence.
    In an employé’s action for injuries in falling from a scaffold, where evidence as to negligence and malpractice on the part of the company’s physician in treating plaintiff was erroneously admitted and commented upon by plaintiff’s counsel in his argument, it was error to refuse to instruct the jury to disregard such evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 604; Dec. Dig. &wkey;208.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by W. A. Miller against W. P. Carmichael Company and another for personal injuries. From a judgment for plaintiff, defendant W. P. Carmichael Company appeals.
    Reversed and remanded.
    N. A. Stedman and White, Cartledge & Graves, all of Austin, for appellant. T. H. McGregor and Batts & Brooks, all of Austin, for appellee.
   RICE, J.

During the spring of 1913, appellant; an Indiana corporation, was engaged in the construction of a reservoir just north of the city of Austin, which required the employment of a large number of men. In the course of said work it became necessary to refill the excavation made for the foundation of said reservoir with concrete, and to erect concrete walls thereon above the surface. The plan adopted involved the erection of tramways on which loaded cars of concrete could be transported from a point contiguous to the site of said reservoir to various points in and above said excavation where such concrete was needed. These tramways were some 15 or 16 feet from the surface of the ground. Appellee had been employed as a helper, but at the time of the accident was engaged in operating the concrete mixer, and on the morning of April 22d he was directed by H. A. Burns, foreman in construction of said work, who resides in Travis county, to go up and aid one Thompson who was preparing to draw up a turntable from the bottom of the excavation to the top of the tram; that such work involved the erection on said tramway of a scaffold to which was to be attached a pulley and rope to be used in raising said turntable from the ground below to a point on a level with said tramway, so that a switch track could be connected with said tramway at said point on which to place empty cars, so that loaded cars might pass on the tramway; that in pursuance of said order, appellee went upon said tramway with said Thompson, and there began the erection of said scaffold, consisting of three pieces of 4x4 timber, from 8 to 10 feet long, which were lashed together at the upper end, the object being to make a tripod, two feet of which were to rest on the tramway and the other foot in a slot against the wall of the reservoir ; that while attempting to lash one foot of the tripod to the railing of the tramway, a strong wind which was blowing overturned it, whereby plaintiff was thrown to the ground below, resulting in serious and permanent injury, and this suit is brought by him against appellant and said Burns to recover damages therefor, alleging negligence on their part in failing to have some one in supervision of said work, the same being dangerous and complicated, and likewise in not having a sufficient number of men to perform the same in safety. Appellant sought the removal of the case to the federal court, alleging fraudulent joinder of the local defendant Burns, charging that the allegations as against him were false. On this issue of fact a preliminary hearing was had in the state court, at the conclusion of which said application for removal was overruled. After a general demurrer and a number of special exceptions appellant specially denied that Burns was foreman in authority over appel-lee when he was injured, or that he had ordered appellee to do said work; a special denial that the work was dangerous or complicated, or that it required the supervision of a foreman. It further denied that the force of men was insufficient, or that appel-lee’s fall was caused by negligence in either of the particulars charged, and expressly denied that appellee or his co-worker was inexperienced, or that the work was novel to them. In addition, appellant pleaded contributory negligence, assumed risk, and that Thompson was a fellow servant of appellee. Much of the above statement is taken from appellant’s brief. A jury trial resulted in a verdict and judgment for appellee against both defendants for $15,000, from which appellant alone has prosecuted this appeal.

The court did not err in refusing to remove the case to the federal court. The controversy, as alleged, was not a severable one. In Alabama Railway Co. v. Thompson, 200 U. S. 216, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147, it is held that a case cannot be removed to the federal court unless it presents a separable controversy, wholly between citizens of different states, and that in determining this question the law looks to the case as made by the pleadings, and determines whether the state court should be compelled to surrender its jurisdiction to the federal court. In the present case appellant and its codefendant Burns were charged as joint tort-feasors. The master is responsible to third persons for the negligence of his servant in a joint action against both to recover damages for an injury. See Alabama Ry. Co. v. Thompson, supra. It is true that appellant alleged a fraudulent joinder, but such allegation alone was not sufficient to oust the jurisdiction of the state court. See Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 34 Sup. Ct. 278, 58 L. Ed. 544. Besides this, the jury found against both defendants, which negatives the idea of fraudulent joinder. In this connection, see, also, Southern Ry. Co. v. Harrison, 73 Tex. 103, 11 S. W. 168; N. Y., etc., Ry. Co. v. Martin (Civ. App.) 25 S. W. 475.

We think the evidence presented an issue of fact which was correctly submitted for the consideration of the jury; hence the court did not err in overruling appellant’s request for a peremptory instruction in its behalf.

The third, fourth, fifth, and sixth assignments of error complain of the refusal of the court to give appellant’s special charges Nos. 24, 3, 7, and 8, enumerating certain conditions, which, if the jury found to exist, would exonerate appellant from liability. These features of the case, to which reference is made in said charges, were covered by the general charge of the court. Apart from this they were, in our opinion, argumentative, and some of them upon the weight of the evidence, and therefore were correctly refused.

Appellant requested the court to submit the following special issue, which was refused:

“At the time that plaintiff went upon the tramway and began the erection of the tripod, did he know and appreciate the dangers. and risks of doing' said work with the help of his coworker Thompson only, and under all the conditions then existing?”

This charge should have been given, because it required the jury to pass directly upon one of the issues raised by the pleadings and evidence, and which was not sufficiently covered by the main charge. See M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058; G. C. & S. F. Ry. Co. v. Shieder, 88 Tex. 167, 30 S. W. 902, 28 L. R. A. 538. One of the contentions of appellant was that the danger was open and obvious to appel-lee ; therefore the charge requested was pertinent and, under the theory of the cases above cited, should have been given.

During the progress of the trial it was shown that immediately after the accident one of the company’s physicians was called to attend and treat appellee. There was evidence introduced over appellant’s objection tending to show that he misdiagnosed the case, and that the treatment given was improper, from which great pain and injury resulted to appellee. The evidence tends to show that the hip joint was fractured, but the treatment was for dislocation instead of a fracture, and that when appellee was discharged by said physician he was told by him that there was a union of the bones of his hip, when in fact there was no such union. There was other evidence tending to . ■show neglect and improper treatment on the part of the company’s physicians, which it is unnecessary to set out. Appellant was not charged with negligence in selecting said physician, nor is it alleged that the treatment administered was improper. The treatment, however, was set out in detail in the petition ; but it was not alleged that appellee’s injuries were aggravated or his suffering increased as the result of improper treatment, and no damages were sought therefor. As illustrative of the effect of said evidence upon the jury, on motion for new trial two of them, in substance, testified that they considered that his, appellee’s, condition was due partly to neglect of the physicians, who were the company’s doctors, for which reason they charged it up to the company; that if the doctors had not been the company’s doctors they would not have considered that they had the right to charge it up to the company; that such fact of negligence and improper treatment influenced their verdict. And in the closing argument, counsel for appellee was permitted to advert to and recite portions of the evidence tending to show malpractice. Whereupon appellant requested and the court refused to give the following special charge:

“You are instructed that the question as to whether or not any treatment administered by any physician to the plaintiff was proper or improper is not an issue in this case; and in arriving at your verdict or in answering any of the special issues submitted to you, you are instructed that you cannot take into consideration the question as to whether or not any treatment administered to plaintiff by any physician was proper or improper.”

Under the pleadings, the evidence outlined was objectionable, and should not have been admitted, and it was error on the part of the court to refuse to give said special charge. See Walker v. Brown, 66 Tex. 556, 1 S. W. 797; M., K. & T. Ry. Co. v. Collins, 15 Tex. Civ. App. 21, 39 S. W. 150; Bell v. M., K. & T. Ry. Co., 36 Tex. Civ. App. 569, 82 S. W. 1073; M., K. & T. Ry. Co. v. Cherry, 44 Tex. Civ. App. 232, 97 S. W. 712; Halsell v. Decatur Cottonseed Oil Co. (Civ. App.) 36 S. W. 848.

We sustain the fourteenth assignment of error relative to the admission of evidence tending to show malpractice on the part of one of the company’s physicians, for the reason that there was no allegation in the pleadings to warrant its introduction.

The remaining assignments have been carefully considered, but are regarded as without ' merit, and are therefore overruled; but, for the reasons indicated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <S=s>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    WASHINGTON COUNTY v. PENDLETON et al.
    (No. 5456.)
    (Court of Civil Appeals of Texas. Austin.
    May 12, 1915.)
    1. Waters and Water Courses <&wkey;242 — ^Irrigation — Construction of Ditches — Constitutional and Statutory Provisions— “All School Lands.”
    Const. I860, art. 9, § 8, provides that the public lands, heretofore given to counties, shall be under the control of the Legislature and may he sold under such regulations as it may prescribe, in which case the proceeds shall be added to the public school fund. The act concerning private corporations, approved April 23, 1874 (Acts 14th Leg. c. 97), granted the right to irrigation companies to construct canals across and along any stream of water, but did not, in terms, grant a right of way over the public lands, and act approved March 10, 1875 (Acts 2d Sess. 14th Leg. c. 63), granted to irrigation corporations a right of way over all public and school lands, and authorized them to obtain the right of way over private land by contract or under general laws, and granted to companies complying therewith a certain number of sections per mile according to the class of the ditch. Selcl that, where an irrigation ditch was constructed while the Constitution was in force, and the reports of the official inspector showed compliance with the act of 1875, and the state thereunder issued certificates of sections to the irrigation company, the company and its successors had the right to construct and to maintain the ditch; the term “all school lands” including county as well as state school lands.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 147, 307; Dec. Dig. &wkey;>242.]
    2. Waters and Water Courses <&wkey;216 — Irrigation — County School Lands — Validity of Statute.
    Under Const. 1869, art. 9, § 8, providing that public lands heretofore given to counties shall he under the control of the Legislature and may be sold under its regulations, in which case the proceeds shall go to the public school funds, Act March 10, 1875, conferring a right of way for irrigation ditches across county school lands patented to the county in 1852, was valid, since such act did not impair the county’s title but granted only an easement.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 305; Dec. Dig. <&wkey;> 216.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Suit for injunction by Washington County again W. F. Pendleton and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Washington county instituted this suit against W. F. Pendleton and others, seeking to restrain the defendants from maintaining and using a certain dam adjacent to, and a certain irrigation ditch over and across, survey No. 105, section 14 of Washington county’s school lands, located in Tom Green county. Without going into particulars concerning the pleadings, it is sufficient to say that they presented the questions of fact decided by the trial court and the questions of law presented in this court. There was a non-jury trial, which resulted in a judgment for the defendants, and the plaintiff, Washington county, has appealed. The trial court made the following findings of fact:
    “(1) Plaintiff, Washington county, is a county municipal subdivision of Texas and has been duly organized as such since 1837, and that this suit was filed and is being prosecuted under proper orders of its commissioners’ court.
    “(2) That the land described in plaintiff’s petition was granted to plaintiff under the act of the Republic of Texas approved February 5, 1S42, as one of its four leagues of county school land, and the same was duly patented by the state to Washington county, by patent issued February 14, 1S52.
    “(3) That said survey 105 described in plaintiff’s petition is situated on the east bank of the South Concho river in Tom Green county, and survey 106, also one of the four leagues belonging to plaintiff, is situated on the west bank of said river opposite said survey 105.
    “(4) That the said South Concho river is a natural water course, and as such a stream retains an average width of more than 30 feet, and the lines of the surveys located thereon do not cross the same.
    “(5) That the Bismark farm is situated in Tom Green county on surveys 643, 172, 171, 170, and 169 on the east bank of the South and Main Concho rivers below plaintiff’s said land and irrigable by gravity from the waters of the South Concho river.
    “(6) That in the year 1874, and for a number of years thereafter, F. C. Taylor was the owner of and in possession, use, and occupancy of said Bismark farm, and in said year, for the purpose of diverting the waters of said South Concho river and conveying the same to and irrigating the said Bismark farm, he located the dam and ditch in question on and across plaintiff’s said survey No. 105, and during the fall of 1874 begun the building and construction of said dam and ditch, and thereafter, in the year 1875, enlarged and extended the same, and the said dam and ditch have from said year 1874 to the present time been without interruption or interference from Washington county or any other source whatever continuously and openly used under claim of right by said Taylor and each of the successive owners of the said Bismark farm in the diversion and conveyance of the waters of the South Concho river to and irrigating the lands in said Bismark farm.
    “(7) That after the location and partial construction of said dam and ditch as aforesaid, by said F. C. Taylor, he, with associates, by charter filed April 12, 1875, incorporated the Ben-ficklin Irrigating & Manufacturing Company under the act of March 10, 1S75, entitled ‘An act to encourage the construction of canals and ditches for navigation and irrigation’ for a term of 100 years, and thereafter said dam and ditch were further constructed, enlarged, and extended, and under reports made by Henry C. King, inspector of ditches west of the Colorado river, to and approved by Gov. Coke and Gov. Hubbard, dated respectively May 22, 1872, and April 24, 1877, 31 certificates for 640 acres each were issued by the commissioner of the land office to said company .for the construction of said dam and ditch, and which said certificates were located upon the public domain of Texas and the patents duly issued therefor.
    “(8) That on the 30th day of September, 1893, the owner of said Bismark farm, in obedience to the requirements of the act of the Twenty-Third Legislature approved March 29, 1893, amenda-tory of the act approved March 29, 1889, caused to be filed and recorded in the irrigation ditch records of Tom Green county a sworn survey, measurement, and statement of said dam and ditch, with a map showing the location thereof, and the Bismark farm irrigated therefrom, and that said dam and ditch since said filing and record in September, 1893, have been continuously and openly under claim of right and without interruption exclusively used by the owners of said farm for the purpose of irrigating the same.
    “(9) That the value of said farm since the construction of said dam and ditch has been based upon and determined as an irrigated farm with the use of the waters flowing from said dam and through said ditch on plaintiff’s land, the land irrigable therefrom being sold and purchased for a higher price than that not irrigable therefrom.
    “(10) That defendants W. E. and O. H. Pen-dleton purchased 1073.53 acres of said farm, paying for the 300 acres irrigable from said dam and ditch at the rate of $100 per acre, and $12.'50 per acre for the part of said land not so irrigable from said dam and ditch, and the defendants S. M. King, P. E. Tippet, and the First National Bank of Wichita Palls purchased 402% acres of said land on the basis of the same being irrigable from and by said dam and ditch, paying therefor $80 per acre.
    “(11) That at the date of the defendants’ respective purchases said lands had been irrigated by said dam and ditch for more than 25 years without. any objection, interruption, or interference from Washington county or others, and no question was ever raised by plaintiff as to the right of defendants and those under whom they hold title to maintain said dam and ditch on said survey 105 until just immediately before the filing of this suit.
    “(12) That search of the minutes of the county court of Washington county for the year 1S74 and the years 1875 and 1876 prior to the organization of the commissioners’ court under the Constitution of 1876, and all the minutes of said court from 1876 to the present time, and also all papers and files of said county court and commissioners’ court to the present time (there being no papers or files of said courts prior to 1870), fail to show any express order, contract, or agreement from Washington county to F. C. Taylor or tbe Benficklin Irrigating & Manufacturing Company or any one claiming under said company or said Bismark farm, granting the right to construct said dam and ditch on and across said survey No. 105.
    “(13) That the minutes of said county and commissioners’ court are not indexed, and part of the minutes of the county trial court from pages 310 to 315 appear to have been cut out of the minute book; the last judgment therein being the 6th day of April, 1870, and the next thereafter being the 17th day of July, 1876.
    “(14) That prior to the organization of Tom Green county, in 1875, it was attached to Bexar county for recording and judicial purposes, and a search of the county court minutes and papers of Bexar county for the year 1874 and the year 1875, and of Tom Green county after its organization, fails to show any condemnation suit or proceedings against Washington county by said Taylor, or said Benficklin Irrigating & Manufacturing Company or the Bismark farm, or any person claiming under them, to acquire by condemnation the right, privilege, or easement for the construction of said dam and ditch on said survey 105.
    “(15) That search of the deed records of Tom Green county and the transcribed deed records thereof from Bexar county fail to show any judgment in condemnation or orders, contracts, or conveyances from Washington county to said Taylor or the Benficklin Irrigating & Manufacturing Company, or the Bismark farm, or any one connected with the title thereto, establishing, granting, or conveying the right and easement to construct and maintain said dam and ditch on and across said survey 105.
    “(16) That search of the minutes, records, and files of the county court and the commissioners’ court of Washington county as aforesaid, and the records and files of Bexar and Tom Green counties as aforesaid, fail to show anything indicating that the county or commissioners’ court of said Washington county had consented to or objected to the construction, maintenance, or extension of said dam and ditch, or anything in the said records or among said papers and files prior to September, 1876, showing that the said county or commissioners’ court of Washington county had any notice or knowledge of the existence of said dam and ditch on said land prior to said date.
    “(17) That at or about the time said dam and ditch were located and work begun thereon, P. C. Taylor, the owner of said Bismark farm, left Benficklin to go to Brenham on business in connection with the right of way for the said dam and ditch.
    “ (18) That said P. O. Taylor was a prudent and careful man in his business transactions, looking after them closely.
    “(19) That at or about the time work was progressing on said dam and ditch, one McNeese, county surveyor of Washington county; came to Tom Green county and ran out the lines to the four leagues of Washington county school'land and established the corners thereof.
    “ (20) That there is in the files and papers in the commissioners’ court of Washington county, without any file mark thereon, a letter written by O. E. Poote, deputy county surveyor of Tom Green county, dated at Benficklin, Tex., September 23, 1876, and addressed to I. B. McFarland, county judge of Washington county, and which letter is as follows:
    “ ‘Benficklin, Tex., Sept. 23, 1876.
    “ ‘I. B. McFarland, Co. Judge Washington Co. — Sir: Yours in answer to a letter from this office is at hand and we will answer your questions in their order.
    “ ‘There is not much timber on the land. The principal part is mesquite,, but we think the most of it has been cut over for wood to supply Ft. Concho. The principal damage done is by causing so many sprouts and brush to grow. Thereby making it difficult to clear, besides robbing the land of all timber large enough for fence posts. Prom appearances this has been carried on for a number of years and a portion of the land is now very brushy. Next the river on either side is large and small pecan, but a great deal of that from 4 to 6 inches has been cut for-pickets, of which nearly all the houses in this vicinity are built.
    “ ‘There is more than an average proportion of arable land on the tract. That on the west side of the South Concho being, I think, nearly all of that class, though some of it lays quite high. Spring creek runs across the back end of these latter, and is a stream large enough to irrigate s,ay 1,000 acres. Pecan creek marked on the map as running across the East tract, is only a paper stream, and affords no water most of the time. As to how much of the land can be irrigated, I cannot say without an instrument survey, but should you wish to have this done, will make the survey on both sides of the Concho for $100 and on Spring creek for $50, making the maps and profiles. Should it prove as I think it will, that the lands on both streams can be irrigated, it will add very much to the value of the land, and such a survey will be an excellent investment for the county.
    “ ‘As to its present values, I am not able to give you any definite answer without knowing what part can be irrigated, but will give- you data to form your own conclusion.
    “ ‘What is known as the Bismark farm lays next below your land, on the east side of the Concho and the dam from which they take their water is about the center of your land. There is about 3,000 acres of land, and at the time the present owners bought there was about 600 acres in cultivation and with no buildings except Mexican backels, or mud houses and no fence. They paid for the property $20,000 or nearly $7 per acre. Since then they have put in the dam, which is on your land and brought about 400 acres in cultivation and now cultivate about 1,000 acres. The farm is not fenced.
    “ ‘Less than a year ago, the land laying below yours on the west side of the river, on Spring •branch was sold for $2 per aere. I do not know how much of it can be watered, but think only a small part. Thus you see the value of the land depends on how much can be watered and this can only be determined by an instrumental survey. We shall be glad to answer any questions you may see fit to put, as to mode and cost of irrigating, cost of dam, ditches, etc., and make no charge for such work.
    “ ‘If you want, we may make an arrangement to lease a portion of the tract, the lessee to build the dam and ditches, for the use of the land for a term of years, thereby adding very materially to the value of the land, which is now deteriorating on account of the growth of brush. Another reason is that the water is in limited supply and if the lands above (which being in small tracts will be occupied first) get possession of the water, the river will be dry, and the land comparatively worthless. Should you be willing to make any such arrangement let us know and should opportunity offer we will write you and you can send some competent person to see the land and make arrangements.
    “ ‘Yours, etc. O. D. Foote,
    “ ‘Dept. Co. Sur.’
    “(21) That said I. B. McFarland was the county judge of Washington county at said time, and he and said Foote are dead and their correspondence cannot be found.
    “(22) That in 1878 G. B. Metcalf went to Washington county and leased from the commissioners’ court of said county its four leagues of school land, including said survey 105, situated in Tom Green county, for a term of five years from July 1,1878, and at that time he told said court of the existence of said dam and ditch on said land,, and no objection was made thereto, but that they expressed themselves as acquiescing therein.
    “(23) That in 1883 the said Metcalf again leased the said lands, and the existence of said dam and ditch was again mentioned, and said court made no objection thereto.
    “(24) That said Metcalf in 1885 transferred his lease and thereafter said lands were leased in 1886 by the commissioners’ court of Washington county to Seaton Keith, and said Met-calf had no further connection with it until 1894, when he again leased it for a term of ten years.
    “(25) That from December 13, 1886, to June 16, 1892, said Metcalf was the owner of said Bismark farm and used said dam and ditch in irrigating said farm.
    “(26) That in 1887 the following order was made by the commissioners’ court of Washington county on the 9th day of August, 1887, to wit: ‘It is ordered by the court that Lafayette Kirk, county judge, be and he is hereby appointed to inquire into and give necessax-y attention to the matter of irrigation ditches being opened across the school lands of the county located in Tom Green county and to take steps if necessary to protect the county’s interest.’
    “ (27) That at the time of said order Lafayette Kirk was the county judge of said county. That some time thereafter in 1887 or 1888, he came to Tom Green county, went over said land, examined the dam and ditch, and made no objection to its being on the said land.
    “(28) That thereafter the county judges and members of the commissioners’ court of Washington county on several occasions visited said land, examined said dam and ditch, and made no ■objection to the same being on the land.
    “(29) That plaintiff recognized the right in the owners of said Bismai-k farm to have, maintain, and operate said dam and ditch on said land, and never questioned the right to do so until about the tíme of the filing of this suit.
    _ “ (30) That said dam and ditch had been continuously used for 35 years for the purpose of ir-l’igating the lands on said Bismai'k farm at the time of the purchase by defendants, and they would. not have purchased but for the easements and rights of using the same in the irrigation of said fai*m.
    “(31) That search in the land office and the office of the Secretary of State has been made for the map designating the route of said ditch, as required by section 6 of the act of March 10, 1875, entitled ‘An act to encourage the construction of canals and ditches for navigation and irrigation,’ and the map called for in the reports of Henry G. King of Máy 22, 1876, and the same cannot be found and -are believed by the officers of said departments to have been destroyed in the fire which burned the capítol in the year -.
    “(32) That all the parties and owners interested in the acquisition and eonstraetion of said dam and ditch have been dead many years, and all of their papers, as well as those of the Ben-ficklin Irrigating & Manufacturing Company, were lost in the flood of 1882 which destroyed the town of Benficklin.
    “(33) That defendants are the owners of said Bismark farm under said Taylor and the right and easement in said dam and ditch as appurtenant thereto for the purpose of irrigating said farm.
    “(34) That plaintiff has been in continuous possession and use of said survey 105 leasing it to tenants since 1S78, and is now in the possession and use thereof by her tenants.
    “(35) That said dam and ditch has not in any way disturbed the lessee from Washington county in the use of said land.
    “ (36) That said dam and ditch are now located and maintained practically where the same were originally located and constructed in 1874.
    “(37) That the parties in open court agreed that should judgment be rendered in favor of plaintiff, denying the easement on and over said land, no judgment should be rendered against defendants on the issue of rents; and that, should the court hold that a more minute de-sci-iption of the location of said dam and ditch was necessary to a proper adjudication of the matters involved, either party may have a survey thereof made, and the field notes inserted in the pleading and judgment.”
    In the main, the findings of fact are conceded to be supported by testimony, and they are adopted by this court as being correct.
    L. E. Rasberry, of Brenham, and Blanks, Collins & Jackson, of San Angelo, for appellant. Hill, Lee & Hill and Wright & Harris, all of San Angelo, for appellees.
   KEY, C. J.

(after stating the facts as above). While, in the well-prepared and satisfactory briefs filed in this court by counsel for the 'respective parties, other interesting questions are ably presented and discussed, our (Jecision in appellees’ favor upon the question of law hereinafter considered renders unnecessary a ruling upon the other questions.

The act concerning private corporations approved April 23, 1874 (Acts 14th Leg. e. 97), granted the right to irrigation companies to construct canals across, along, and upon any stream of water, and, as the Concho river was a navigable stream, this act conferred authority to construct the dam across tliat stream. That act did not, in terms, grant a right of way over the public lands, but the act approved March 10, 1875 (Acts 2d Sess. 14th Leg. c. 63), did grant such right in the following language:

“That all corporations for irrigation or navigation are hereby granted the right of way, not to exceed 150 feet in width, over all public, university, school, and asylum lands, with use of necessary rock, gravel and timber for construction purposes* and may obtain the right of way over private lands by contract or under general laws of the state.”

And to encourage the construction of such internal improvements that act granted to companies complying with its terms from. 6 to 16 sections of land per mile according to the class of the ditch. The undisputed proof shows that the ditch in question was constructed prior to the time our present Constitution went into effect and while the Constitution of 1869 was in force; that upon reports made by Henry C. King, official inspector, showing substantial compliance with the act of March 10, 1875, the state issued to the Benficklin Irrigating & Manufacturing Company, under said act of March 10, 1875, 31 certificates, each for 640 acres of land, which certificates were afterwards located upon the public domain of Texas and patents issued therefor. Under these facts, and by force of the statutes referred to, we hold that appellees acquired the right to construct and maintain the dam and ditch in question.

Counsel for appellant contend that, while the act of March 10, 1875, grants a right of way over “all public, university, school, and asylum lands,” it was not intended thereby to grant such right of way over school lands belonging to the several counties of the state. We are unable to yield assent to that construction of the statute. It must be borne in mind that at that time the Constitution of the state read:

“The public lands heretofore given to counties shall be under the control of the Legislature, and may be sold under such regulations as the Legislature may prescribe; and in such case the proceeds of the. same shall be added to the public school fund.” Section 8, art. 9, Const. 1869.

In view of this constitutional provision, it is reasonable to suppose that the Legislature understood that the Constitution had vested •in that body the power of control over county school lands, as well as state or other school lands; and therefore, when it used the language “all school lands,” we hold that it was the legislative purpose to include county as well as state school lands.

But, if this construction be adopted, then counsel for appellant earnestly urge that the statute is unconstitutional, the contention being that, as the land here involved had been granted and patented to Washington county in 1852, it was not in the power of the Legislature or of the people, in adopting the subsequent Constitution, to destroy or impair the title so vested in Washington county. Upon this branch of the case we adopt the following excerpt from appellees’ brief:

“Appellant contends that, as said land was patented to it in 1852, the Legislature had no power to grant a right of way over it to irrigation companies, and that such right can be acquired only through an express grant from appellant’s commissioners’ court. In support of its contention, appellant cites the cases of Galveston County v. Tankersley, 39 Tex. 651; Worley v. State, 48 Tex. 1; Milam County v. Bateman, 54 Tex. 153; and Kuechler v. Wright, 40 Tex. 600.
“An examination of the cases cited shows that they are not authority for the propositions asserted. If the grant of the easement made by the acts of 1874 and 1S75 had the effect to divest the county of its title in fee to the land, and to divert them to an entirely different purpose, the rule announced in those cases would be applicable. However, here, the acts mentioned grant only an easement without in any manner interfering with the fee in the land, or appropriating the lands to any other or different purpose than that for which they were originally granted.
“In Galveston County v. Tankersley and Worley v. State, it was claimed that the effect of section 8, art. 9, of the Constitution of 1869, was to divest the counties of all title in the lands theretofore granted them, and to reinvest the state with the title in fee thereto. In other words, that by force of the Constitution of 1869 all such lands became a part of the public domain. The court held that the Constitution was not subject to that construction.
“In Milam County v. Bateman, the court held that the Legislature was without power to arbitrarily take from the county its school lands theretofore granted and give them to ‘private parties and for private purposes,’ as was attempted by the act of July 21, 1870 (Acts Called Sess. 12th Leg. c. 21).
“The correctness of these decisions upon facts in each case may be admitted, but does it follow that, because the Legislature did not have the power to grant these lands to ‘private parties and for private purposes,’ it therefore did not have the power, under its constitutional control over the lands, to grant an easement thereon for a public use? That it had such power, we think, is too clear for argument.
“It is true in Galveston County v. Tankersley, the court in an obiter dicta expression denies the power of the people through their Constitution to recall its grants of public lands to its counties upon the ground that such grants are protected by the Constitution of the United States, but in Worley v. State, the Supreme Court, speaking thi-ough Judge Gould, takes occasion to dissent from that doctrine, saying: ‘It is proper to remark that whilst we recognize the authority of the case of Galveston County v. Tankersley, on the question actually decided,to wit, the construction of the Constitution, we are by no means_ prepared to assent to what is said in the opinion, in that case, denying the power of the state over lands granted by her to her own political subdivisions for public purposes.’
“And in Baker v. Dunning, 77 Tex. 28 [13 S. W. 617], the court held that the provision in section 6, art. 7, Constitution of 1876, granting the prior right to actual settlers residing on county school lands to purchase the same to the extent of their settlements, was not repugnant to the Constitution of the United States, and take occasion, speaking through Judge Gaines, to question the correctness of the decision in Milam County v. Bateman, 54 Tex. 153, on that point, saying: ‘In Milam County v. Bateman, 54 Tex. 153, it was held that the state could not take from the counties the lands which had been donated to them for educational purposes. We are of opinion that that decision should be adhered to. If it were an open question, we might have difficulty in coming to that conclusion. The counties being but political subdivisions of the state and quasi corporations created by the state for the more convenient administration of its laws, we incline to the opinion that they hold their property as they hold their existence — at the will of the state; or that at least what has been given to them by the state for the purposes of government they hold in trust, and that it is subject to be resumed by the state at its pleasure.’
“In Kuechler v. Wright, 40 Tex. 600, the court held that the alternate or even sections of land surveyed by railway companies for the use of the state were ‘dedicated to school purposes and placed beyond the power of the Legislature to divert them .for any other purpose,’ and that the act of August 12, 1870, in so far as it attempted to authorize the homestead settlement or certificate location thereon, was void. In other, words, that the title in foe to such lands, having been by law and the Constitutions set aside for such purposes, it was not in the power of the Legislature to divert that land to an entirely different purpose. But notwithstanding the principle of law announced in this case, the Supreme Court, in T. C. Ry. Co. v. Bowman, 97 Tex. 421 [79 S. W. 295], held that the statute of 1879, now article 6482, R. S. 1911, granting to railroad companies an easement of a right of way over such lands, was constitutional and valid; and again in Imperial Irrigation Co. v. Jayne, 104 Tex. 395 [138 S. W. 575, Ann. Cas. 1914B. 322], the court held that the setting aside of such alternate sections of land to the school fund, and providing that they should be sold for that purpose, did not deprive the Legislature of the right to grant easements over the same for the promotion of public enterprises which would enhance the value of that fund, and in that case upheld the validity of the irrigation statutes of 1895 granting to such public enterprises the easement on such lands for the construction of reservoirs, etc.
“From these authorities we deduct the rule that whilst the Legislature was without power to divest the counties of the title in fee to the lands granted for school purposes, and to appropriate them to other and entirely different uses, it did have the power to grant easements thereon for public enterprises.
“But there is another view of this question. The Constitution of 1869 vested the control of these lands in the Legislature to be sold under such regulations as it should prescribe. Other than the act in question, the Legislature had never prescribed any method of acquiring easements over such lands for public purposes. No condemnation proceedings can be had against the state to acquire an easement over these lands for a public purpose without the consent of the state. In lieu of authority for such proceedings, the Legislature grants the easement, and this act was authority to acquire the right thereon in the manner prescribed by the Legislature. In other words, the Legislature, having the power to authorize such companies to acquire by condemnation a right of way for a public purpose, necessarily had the power to grant such easements over the lands under its control.
“The easement for said dam and ditch, being complete at the date of the adoption of the Constitution of 1876, which placed said lands under the control of the commissioners’ court, was not affected thereby, nor was it necessary for the owners thereafter to secure any confirmation of the right from appellant, and, the evidence showing that there had never been any abandonment of the easement since its acquisition in 1874 or 1875, appellant was not entitled to an injunction restraining appellees from maintaining the same on said land.”

Our present Constitution is much, more restrictive than the Constitution of 1S69 as to the power of the Legislature to deal with public lands, and yet in construing such restrictions in Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322, our Supreme Court held that the Legislature had the power, which it exercised in passing the irrigation law of March 9, 1895 (Acts 24th Leg. c. 21), to confer easements upon state school lands for the purpose of establishing reservoirs for the conservation of surface waters, and in the course of the opinion prepared by Mr. Justice Dibrell it is said:

“From the view we take of the law it seems to us to be settled by the decisions of this state that the Legislature has power to deal with the public school lands in any manner not inconsistent with the express denial of the Constitution. As stated by Judge Stayton in Smisson v. State, 71 Tex. 233 [9 S. W. 116], in discussing that section of the Constitution, section 4, article 7, invoked in this case in denial of the legislative authority to grant an easement on any portion of the public school lands of the state for dam and reservoir sites: ‘A power clearly legislative in its character, not expressly denied to the Legislature, ought not to be held denied by implication, unless its exercise would interfere with, frustrate, or to some extent defeat the exercise of a power expressly granted.’
“It has been held, and it seems with great force of reason, that the purpose of the Constitution was not to restrict the Legislature in dealing with the public school lands further than to say they shall be sold, and that the purpose of the constitutional provision was not to fetter the Legislature with restrictions so narrow as to deprive it of the exercise of that generous and wise policy in dealing with the public domain in order to foster public enterprises and thereby promote the general welfare of the whole people. Such a construction of the Constitution would deny the Legislatui'e the power to authorize the opening of public roads over the public school lands, or the granting of rights of way to railroad companies, or sites for public schoolhouses, or sites for dams or reservoirs to furnish water to the people of our cities located in the arid and semi-arid sections of the state. It would also stop the building of telegraph and telephone lines and cripple the entire commerce of the country.”

The language just quoted has equal application to the case at bar, and supports our conclusion that the act of March 10, 1875, conferring a right of way for irrigation ditches across county school lands, was constitutional and valid.

Our ruling as to the validity and construction of the statute referred to renders it unnecessary and therefore we forego any decision upon the other questions in the case.

For the reasons given, we hold that the case was properly disposed of, and therefore the judgment is affirmed.

Affirmed.
      ©ssoFor other oases see .same topic ahd KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEVY et al. v. DUNCAN REALTY CO.
    (No. 5488.)
    (Court of Civil Appeals of Texas. Austin.
    May 19, 1915.)
    Beokers <&wkey;63 — Compensation—Failure or Principal to Perform — Mutuality of Contract.
    Where a broker procured a ready and willing purchaser who contracted to buy, but the transaction failed because the principal defaulted, taking advantage of a provision in tho contract to pay liquidated damages in lieu of performance, the broker was entitled to recover compensation, and it was immaterial whether the contract was capable of being specifically enforced.
    [Ed. Note. — Eor other cases, see Brokers. Cent. Dig. §§ 79, 81, 94r-96; Dec. Dig. @¿>(33.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by W. J. Duncan and another, doing business as the Duncan Realty Company, against Ike Levy and another. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Gross & Street and W. L. Eason, all of Waco, for appellants. J. A. Stanford, of Waco, for appellees.
   KEY, C. J.

The Duncan Realty Company, a firm composed of W. J. Duncan and P. W. Huber, instituted this suit against Ike and S. Levy, seeking to recover a commission of $1,000 alleged to have been earned by the plaintiffs as real estate brokers. They also sued upon a promissory note, but that feature of the case is not involved in the appeal. The proof shows that, as agents for appellants, appellees procured one A. F. Crowley with whom appellants entered into a written contract for the exchange of certain real estate, one paragraph of which reads as follows:

“It is agreed that in the event either party hereto shall fail or refuse or fail and refuse to do and perform the terms and conditions and obligations incurred in this contract for him to do and perform, that such party so failing shall forfeit and pay to the party not so failing at Ft. Worth, Texas, on October 4, 1913, the sum of $2,500, herein agreed upon as liquidated damages and when said amount is paid, the payment thereof shall operate as a complete and final settlement of all damages sustained by the party not so failing.”

There was a jury trial, which resulted in a verdict and judgment for the plaintiffs for $1,000 upon their claim for commissions, and the defendants have appealed.

We deem it unnecessary to discuss all the questions in the case, and content ourselves with Saying that we have considered all that are presented in appellant’s brief, and have reached the conclusion that all of them should be decided against appellants. Apparently, the main ground relied upon for a reversal is predicated upon that portion of the contract set out above; appellants’ contention being that, as that paragraph of the contract would have defeated a suit for specific performance, therefore appellees were not entitled to recover any commission. In response to that contention, counsel for ap-pellees submits this counter proposition: Ap-pellees having alleged and proved that, as agents for appellants, they procured a purchaser with whom an agreement for the exchange of properties was made by appellants, and having alleged and proved that the purchaser referred to was at all times ready, able, and willing to carry out the contract of exchange, and the proof showing that appellants declined to do so and paid the forfeit therein stipulated, it is wholly immaterial whether appellants could have enforced performance of the contract or not. That proposition is sound and states the law of this case correctly. Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S. W. 561; Jackson v. Biggerstaff, 168 S. W. 42; Henderson v. Gilbert, 171 S. W. 304; Baldwin v. Smith, 119 S. W. 111; Hamburger et al. v. Thomas, 118 S. W. 770: McLane v. Petty, 159 S. W. 891. The authorities cited show that when a broker procures a purchaser ready, able, and willing to purchase the property upon the terms and conditions authorized by the owner, and the failure to consummate the transaction is the fault of the owner and not the fault of either the purchaser or broker, then the broker is entitled to his commission. And in such case it is no defense to say that the purchaser could not have been compelled to take the property. The answer to that assertion is that, while he may not have entered into such contract as would have entitled the owner to a judgment for specific performance, nevertheless, if in the broker’s suit for commissions it is shown that the person referred to was ready, able, and willing, and therefore would have purchased the property, then the broker has earned his commission, because under such circumstances the property would have been sold had not the owner declined to consummate the sale.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: JENKINS, J.

text:
    STEPHENVILLE NORTH & SOUTH TEXAS RY. CO. v. GRIER.
    (No. 5475.)
    (Court of Civil Appeals of Texas. Austin.
    May 5, 1915.)
    1. Parties <&wkey;27 — Actions—Joinder of Parties.
    In an action against a railroad ticket agent to recover money converted to his own use, the surety company which had guaranteed the railroad against loss by the agent’s defalcation was properly joined as a party defendant, to avoid multiplicity of suits.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. § 35; Dec. Dig. <@=>27.]
    2. Appeal and Error <@=>1073 — Harmless Error — Form of Judgment.
    In an action against a railroad ticket agent to recover money converted to his own u^e,. ■where the jury found that the plaintiff was indebted to the defendant in the amount claimed by plaintiff, and there was judgment that plaintiff recover nothing against defendant, the jury’s failure to pass on the claim against defendant was not reversible error, since the plaintiff suffered no injury thereby.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. <&wkey;> 1073.]
    3. Trial <&wkey;252—Issues—Evidence.
    In an action against a railroad ticket agent to recover money converted by him to his own use, with cross-action by the agent for the same amount, a charge that defendant might recover for his services if he was employed by an agent of an express company to serve as agent for the plaintiff under the promise that plaintiff would pay him for his services, and plaintiff with full knowledge of such contract ratified it, was reversible error, where there was no evidence raising the issue as to such ratification.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252J
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Suit by the Stephenville North & South Texas Railway Company against J. D. Grier and another, with cross-action by defendant Grier against the Wells Fargo Express Company, etc. Judgment for defendant Grier, and plaintiff appeals.
    Reversed and remanded for new trial.
    Marshall Ferguson, of Stephenville, for appellant. Langford ■& Chesley, of Hamilton, for appellee.
   JENKINS, J.

Appellant brought suit against J. D. Grier for $537.85, alleged to be for money received by the appellee as ticket agent, and converted to his own use. Appellant also sued the American Surety Company, alleging that it had guaranteed appellant against loss by reason of defalcation on the part of said Grier as such agent. Grier answered, alleging an indebtedness to him by appellant for services as such ticket agent in the sum of $537.85, due upon contract and also upon quantum meruit. Grier also, by cross-action, made the Wells Fargo & Co. Express a party defendant, alleging that the agent of said company had agreed with ap-pellee at the time of his employment that the appellant would pay him $20 per month for his services as ticket agent. The Express Company filed both a general and special exception to appellee’s cross-action, which were sustained. No error is assigned as to such action.

The Surety Company filed a plea of misjoinder of causes' of action, which was sustained and to which action of the court appellant excepted, and has assigned error thereon. We sustain said assignment of error. The alleged cause of action against the Surety Company relates to the same transaction upon which appellant’s cause of action is founded against Grier, viz., his defalcation as ticket agent. It has frequently been declared to be the policy of our system of procedure to avoid multiplicity of suits, and to settle in one suit all matters between the same parties, or concerning the same subject-matter. Skipwith v. Hunt, 94 Tex. 322, 60 S. W. 423; Clegg v. Varnell, 18 Tex. 294; Ft. Worth v. Allen, 31 S. W. 235.

We are not called upon to say whether or not appellant’s petition as against the Surety Company, is good on demurrer. That issue is not before us. The only thing that we decided as to the joinder of the Surety Company is that it is a proper party defendant to appellant’s cause of action upon proper allegations as to its liability for the defalcation of Grier.

The jury found that the appellant was indebted to the appellee in the sum of $537.85. The jury returned no verdict as to what, if anything, the appellee owed appellant. The undisputed evidence showed that appellee had retained $537.85 of money belonging to appellant and received by him as its ticket agent. The court rendered judgment that the appellant take nothing by its suit against appellee, but that he go hence without day. Appellant will not be heard to complain of the jury’s not having -passed on its claim against appellee, inasmuch as the court found that appellant was entitled to recover of appellee all that it claimed, which was the exact amount that the jury found that appellant owed appellee for his services; and, had the jury made a specific finding that appellee was indebted to appellant in the sum of $537.85, which was the full amount of its claim, and also have found, as they did, that appellant was indebted to appellee in a like amount for his services, no judgment could properly have been rendered on such verdict other than that which was rendered. . A case will not be reversed for an error committed on the trial of such ease, where it is apparent that the complaining party suffered no injury by reason thereof.

This also disposes of appellant’s second assignment of error. The requested charge should have been given, but the refusal of the court to give the same was harmless error, for the reason above stated.

The charge complained of in the fourth assignment of error, wherein the jury were instructed to find that the defendant was entitled to recover for his services, if he was employed by the agent of the Express Company to serve as agent for the appellant, under a promise that appellant would pay him $20 a month for such services, and that appellant, with full knowledge of such contract, ratified the same, should not have been given, for the reason that the evidence was not sufficient to raise the issue as to such ratification. The giving of this charge constitutes reversible error.

Appellant’s fifth assignment of error that the verdict of the jury is not supported by the evidence must also be sustained. Under the uncontradicted testimony, the appellee was not entitled to recover any amount on his cross-action.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.
      <@r=For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      «SxxoEor other cases see same topic and KEY-NUMBER in all Key-Nnmbered Digests and Indexes


author: RICE, J.

text:
    HUDGINS v. HAMMERS et al.
    (No. 5501.)
    (Court of Civil Appeals of Texas. Austin.
    May 5, 1915.)
    1. Appeal and Erbob &wkey;>877 — Party Entitled to Allege Erbob.
    Where plaintiff was found not to be a creditor of defendant when he levied on mules claimed to be covered by his mortgage from defendant, he could not complain that the undisputed evidence showed that the mules, claimed by another, had been left by him in the possession of defendant for more than two years prior to the execution of the mortgage so as to be liable under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3969, to the payment of defendant’s debts and subject to his mortgage to secure his debts.
    [Ed. Note. — For other' cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. &wkey; 877.)
    2. Appeal and EbKob <&wkey; 1002— Questions op Fact — Conflicting Evidence.
    Where testimony is in conflict, but there is evidence sufficient to support the verdict, it will not be set aside, although the appellate court might not have taken the jury’s view of it.
    [Ed. Note. — For other cases, see Appeal and Exror, Cent. Dig. §§ 3935-3937; Dee. Dig. &wkey;> 1002.)
    3. Appeal and Ebboe <&wkey;948 — Discretion oe Trial Court — New Trial.
    Where it was not shown on appeal that newly discovered evidence came within the rules authorizing the court to grant a new trial on account thereof, it cannot be held that its refusal to grant a new trial was an abuse of its discretion.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3814; Dec. Dig. &wkey;»948.]
    4. Appeal and Ebboe &wkey;>1073 — Harmless EbIroe — Form of Judgment.
    Plaintiff in an action to recover on a note and to foreclose a mortgage on mules, who sued out a writ of sequestration against them, and, when defendant failed to replevin, himself took possession, as authorized by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7110, could not complain that the court failed to render judgment in favor of defendant against him and his sureties on the sequestration bond, as authorized by article 7111, since the bond inured to the benefit of defendant, and a failure to render judgment thereon was a matter of which he alone could complain, and since it did not prejudice plaintiff’s right to return the mules and bar any suit therefor by defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. <&wkey;>
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Suit by A. H. Hudgins against John Hammers with a plea in reconvention, consolidated with a suit against Hudgins by Den-man Hammers. Judgment for defendant John Hammers and Denman Hammers, and plaintiff Hudgins appeals.
    Affirmed.
    Morrow & Morrow, of Hillsboro, for appellant. R. M. Vaughan, of Hillsboro, for ap-pellees.
   RICE, J.

On November 6, 1913, appellant Hudgins brought this suit against John Hammers to enforce the collection of a note for $320, of date March 12, 1912, due October 1, 1912, payable to his order, bearing interest at 10 per cent, from date, and providing for 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection; alleging that on the same date the said Hammers, in order to secure the payment of said note, executed a mortgage on four head of mules, named respectively George, Kate, Mat, and Rhoda, one cow and calf, and his interest in a certain crop to he grown on his (appellant’s) place in Tarrant county during said year, and prayed for judgment for said debt and foreclosure of said mortgage lien, and sued out a writ of sequestration against said property, which was levied by Freeland, sheriff of said county, upon said mules, and defendant Hammers failing to replevin same, appellant thereafter replevined them and took possession thereof.

John Hammers defended on the ground that during the year 1912 he was a tenant of appellant, who had agreed to furnish him $150 worth of supplies for said year, for which he had agreed to give a note and mortgage upon two head of mules, together with his interest in the crop to be raised on said place for that year. He denied the execution of the note and mortgage sued upon, alleging that he was illiterate, and that at the time he signed the note and mortgage he believed he was signing a note for $150 and a mortgage on the two first-named mules and his interest in said crop;' that appellant represented to him that the note was only for $150, and that the mortgage only covered his interest in said crop and said two mules, and, being unable to read and write, and relying upon the representations of appellant, he signed said note and mortgage, believing that they were as represented; that he only received $150 worth of supplies during said year, for which he had paid appellant, hence did not owe him anything; but, on the contrary, he set up by plea in reconvention that appellant was indebted to him in the sum of $494.20 for labor performed and for cotton and hay belonging to him which appellant had converted, and prayed judgment therefor. 1-Ie further alleged that the two last-named mules, levied upon under said writ of sequestration, were the property of his son Denman Hammers. Thereafter Denman Hammers brought suit in said court against appellant and Freeland, the sheriff of Hill county, for the title and possession of said two last-named mules, claiming that they belonged to him.

Appellant in a supplemental petition denied that the mortgage was intended to embrace only two mules, but that its purpose was to coyer the four mules described therein. He further denied that either of said mules belonged to Denman Hammers, but alleged that John Hammers was in possession of said last two described mules for more than two years prior to the execution of said mortgage, that he claimed ownership thereof, and that Denman Hammers acquiesced in said claim.. 1-Ie further alleged that the claim set up to same by Denman Hammers was fraudulent. He also denied owing John Hammers anything for work, hay, or cotton, as claimed by him.

Denman Hammers, by supplemental petition, denied that said mules claimed by him belonged to his father, John Hammers, or that his father had had possession thereof for more than two years before the execution of said mortgage. He likewise denied that his claim was fraudulent.

These suits were consolidated and tried together before a jury, who, in response to special issues, found in effect: First, that the note and mortgage was intended for only $150; second, that Hudgins inserted in said mortgage a description of two mules and two cows and calves that John Hammers did not agree should be included therein; third, that John Hammers had paid the note sued on and was entitled to a credit thereon of $321, and $17.40 interest, of date October 1, 1912; fourth, that appellant was indebted to John Hammers a balance on account of $70.63 ;■ fifth, that Denman Hammers was the owner of the two mules claimed by him, and that John Hammers had only been in possession thereof for 11 months- at the time of the execution of said mortgage. Whereupon the court rendered judgment that appellant take nothing as against John Hammers, but that said Hammers recover of and from appellant the sum of $70.63, declaring that no mortgage lien existed on said mules, and awarding judgment in behalf of Denman Hammers for the two mules last named, together with writ of possession therefor, from which judgment appellant has prosecuted this appeal.

It is contended by appellant in his second assignment that the undisputed testimony shows that the mules claimed by Den-man Hammers had been left by him in the possession of his father John for more than two years prior to the execution of the mort- • gage; hence, were liable to the payment of John’s debts, and therefore he had the right to mortgage same to secure his debts, citing art. 3969, Vernon's Sayles’ Civ. Stat. 1914; Hunstock v. Roberts, 65 S. W. 675; Eason v. Garrison et al., 36 Tex. Civ. App. 574, 82 S. W. 801. In answer to this, it is sufficient to say, first, that, even if the facts were as asserted, appellant has no cause of complaint, for the reason that he was not a creditor of John Hammers at the time of the levy; the jury having found that the note sued upon had been paid by the latter. But we do not think the answer of the jury on this issue is unsupported by the evidence, as contended by appellant, in that the evidence failed to show that the mules had been left for two years or more continuously in the possession of John Hammers prior to the execution of said mortgage. We therefore overrule said assignment.

We overrule the first and third assignments assailing the verdict of the jury as being unsupported by the evidence. Where the testimony is in conflict, but there is evidence sufficient to support the verdict, the same will not be set aside on account of such conflict. See Flynn v. Radford Grocery Co., 174 S. W. 902; Hovey v. Sanders, 174 S. W. 1025; Thompson v. Pennington, 174 S. W. 944. The weight of conflicting testimony is for the jury, and it is immaterial whether the appellate court would have taken their view of it as an original proposition or not. See Just v. Herry, 174 S. W. 1012.

It is not shown that the newly discovered evidence would come within the rules authorizing the court to grant a new trial on account thereof, for which reason we hold the court did not abuse its discretion in refusing to do so. See Mitchell v. Bass, 26 Tex. 377. We therefore overrule the fourth assignment of error, complaining of the action of the court in this respect.

The property having been sequestered by plaintiff, and defendant failing to give a sequestration bond, plaintiff replevined the same, as authorized to do under article 7110, Vernon’s Sayles’ Civ. Stats. Appellant failed to recover any judgment as against appellee John Hammers; but, on the contrary, the latter recovered judgment against him on his cross-action. The court, however, failed to render judgment in favor of said appellee against appellant and the sureties on his sequestration bond, as authorized by article 7111 of Vernon’s Sayles’ Civ. Stats., of which fact appellant complains and assigns error, contending that he had a right to tender the mules and obtain credit on this judgment against himself. The bond inured to the benefit of appellee, and a failure to render judgment thereon is a matter of which he alone could complain. See Cole v. Crawford, 69 Tex. 124, 5 S. W. 646. The mules did not belong to the appellant, and he failed to establish his asserted lien thereon; certainly, he could not tender the property of the appellee in payment of a debt due the latter by himself, as asserted by him, but would have the right, in the event such judgment had been rendered against him and his sureties, to return the property in satisfaction thereof; and a failure to render such judgment could not prejudice his right to return the property to the defendant, which if done would be a bar to any suit that defendant might bring against him therefor. We therefore overrule the fifth assignment, complaining of this matter.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.
      (§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. THAYER.
    (No. 5489.)
    (Court of Civil Appeals of Texas. Austin.
    April 28, 1915.)
    1. Raileoads <&wkey;348 — Accident at Crossing — Question fori Jury — Contributory Negligence.
    Evidence, in an action against a railroad for injury from a collision of its train with plaintiff’s automobile, held sufficient to sustain a finding that plaintiff was not guilty of contributory negligence in not again looking before he reached a point which rendered the collision inevitable.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. &wkey;348.]
    2. Appeal and Error <&wkey;53 5 — Statement op Facts — Form; and Contents.
    Where a statement of facts showed that two photographs of the place where a collision occurred were in evidence and that a witness testified with reference to one of them, they should have been brought up with the record, and, where a map was drawn on the floor in front of the jury and witnesses testified with reference to it, the statement of facts should make their testimony intelligible to the appellate court.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2322-2325; Dec. Dig. <&wkey; 515.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Charles Thayer against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed
    Charles C. Huff, of Dallas, and Spell & Sanford and W. W. Ñaman, all of Waco, for appellant. Hamilton & Murphree, of Waco, for appellee.
   KEY, C. J.

Appellee brought this suit against appellant, alleging that he was injured in a collision at a street crossing in the city of Waco, between a train belonging to appellant and backing in a westerly direction on a street, and an automobile in which appellee was riding, moving in a southerly direction on another street, at about 10 o’clock p. m. The negligence charged against appellant was: (1) Failure Jo ring the bell; (2) failure to blow the whistle; (3) failure to have a flagman on the rear end of the train to warn the public of its approach to the crossing; (4) failure to keep a flagman at the crossing; and (5) in operating the train at a high and dangerous rate of speed as it approached the crossing. Appellant specifically denied all of appellee’s allegations of negligence, and specially pleaded that appellee was guilty of contributory negligence in failing to exercise ordinary care by looking and listening to ascertain whether or not a train was approaching the crossing, and that such negligence was the proximate cause of the injuries complained of. The case was submitted to a jury upon special issues, and,, from a verdict and judgment in favor of ap-pellee for $500, appellant prosecutes this appeal.

The fourth special issue required the jury to find:

“Whether the plaintiff approached defendant’s track at a high and rapid rate of speed, and whether plaintiff failed to look or listen for the approach of defendant’s train at a time when he could have stopped and prevented said accident” — in response to which the jury answered no.

Appellant assailed that finding in its motion for a new trial, and the only error assigned in this court is predicated upon the-action of the trial court in refusing to sustain that paragraph of appellant’s motion for a new trial. Counsel for appellant present the proposition that the undisputed testimony given by appellee himself while on the witness stand shows that if he had looked he could have seen the approach of the train in time to have stopped his car and avoided injury, and therefore, notwithstanding the fact that he testified that he did look and did not see the approaching train, the jury had no right to give credence to the latter statement and find that he did not fail to look for the approaching train. In support of that contention, counsel for appellant have set forth in their brief the testimony as follows:

“Plaintiff testified: ‘As I approached the M. K. & T. track I am sure there was no train. I was going at the rate of speed of about three or four miles an hour and was on the right-hand side of the street. * * * With reference to my making an effort to find out whether a train was coming, I slowed down. I looked and listened, looked right and left, and did not hear any at all. * * * When I was approaching Jackson street, where those trains run, I began to slacken my speed about the middle way of the block, about the middle of the block before I got there. I had not been going fast up to that point. I slackened for the Cotton Belt track, and then I had not gone fast at all. I didn’t gain any speed at all. When I hit the Cotton Belt track, I was going about six or seven miles an hour. Then after I passed the Cotton Belt track, which is the first track on Mary street (the street parallel to Jackson street and the first street before Jackson street), after I passed the Cotton Belt track on Mary street and got to the middle of the block, I was going about five miles an hour. Then as I approached Jackson street I slowed up and was going about three or four miles an hour. I was about twelve or fifteen feet of the first track on Jackson street before I looked down the track and up the track to see whether the train was coming; I was closer than that, about ten feet, about ten feet from the first track is what I would judge. I looked both ways, up and down. There was no curtain in the front that would obstruct my view. I was in plain view. I couldn’t see very far down Jackson street on account of that brick building. That brick building obstructed my view. When I was within ten feet of the track looking down Jackson street that way, I could hardly see half a block, I could see down the block about a third of a block; that was when I was within ten feet of the first track. I didn’t see the train then. There is an are light on the corner. The arc light is on the corner of Jackson and Sixth streets. From the point where the train collided with my automobile I could see down Jackson street, when I was within ten feet from the track, about one-third of a block. I couldn’t estimate how many feet that would be; I don’t know. There are about 300 feet or more in a block, and I could see. about 150 feet. I looked down the track and could see about 100 or 150 feet, and I saw no train coming. I did not stop my machine entirely. * * * I didn’t stop entirely to look down the street. I slackened up to about three miles an hour. I looked down the street and up the street, both ways. There was no train in view. I could see down the track about a third of a block. I remember now positively about the distance that I looked down the track and could see one-third of a block. I remember that distinctly. My automobile was on the track when I saw the train.’
“R. F. Hyde, a witness for the appellant, testified as follows: T am claim adjuster for the M. K. & T. Ry. Company of Texas. In the course of my business I have had occasion to examine and notice the condition of tracks and other surrounding buildings at the corner of Sixth and Jackson streets. When' I went down there the next morning, I took particular notice of the buildings on each side of the street, the number of tracks, and their relative positions in the street. * * * Made some measurements down there. I was present when this photograph was taken (witness identifying the photograph). The photographer was standing 84 feet north from the south rail when the photograph was taken. He was standing about 12 feet from the west curb on Sixth street. The man standing in the middle of Sixth street, shown in the photograph on the south rail, was 72 feet from the person shown in the photograph on the rail east on Jackson street. I observed how far down Jackson street you can see from the curb line of Jackson street on Sixth street in the middle — standing in the middle of Sixth street you could see on to Third street. You could see on to Third street down Jackson street. * * * The first rail that you would meet as you go south on Sixth street is 34 feet from the curb line of Jackson street, if extended across Sixth street. The first rail that you meet as you go south on Sixth street— I did not make any calculation of. that, but it would be about 20 feet. I would estimate the distance between the curb line of Jackson street, if extended across Sixth street, and the rail which you first meet as you go south on Sixth street, to be about 20 feet.’
“Appellee testified in his own behalf as follows : ‘The train was on the first track, I think.’
“B. O. Cook, a witness for plaintiff, testified: ‘All three of those tracks run across the street. I am positive as to which one of those tracks the collision occurred on. There is no question about that. It was on the middle track.’
“R. R. Simmons, a witness for appellant, testified that there were but two tracks. The track on which the accident occurred was on the south track; that is to say, the track used by north-bound trains and the one which would be reached last in going south on Sixth street.
“B. O. Cook, a witness for appellee, testified that the train was going very slowly; it was not going at any high rate of speed at all. All of the appellant’s witnesses testified that the train was going from four to six miles an hour.”

In addition to the evidence set out above, it is. proper to state that appellee testified that the train was running at a speed rate of from 15 to 18 miles an hour. He also testified that the train shoved the automobile about 12 or 15 feet beyond what would be the west line of Sixth street extended across Jackson street, and in all moved the automobile about 20 feet. He further testified that he listened for and heard no signal, and that he saw no light on the train until after the accident occurred and three "of the employes of appellant came out of the door at the rear end of the train. All of appellant’s employés who were operating the train, and who testified in the case, stated that the train was running at a rate of speed of only 5 or 6 miles an hour; but one of them stated that such train running at that rate of speed could be stopped in about the length of a car, or about 45 feet, while another stated that it could be stopped in about half the length of a ear, and each of them stated that the emergency brake was applied before the train reached Sixth street, one placing the distance 8 or 10 feet and the other 15 or 20 feet. One of appellant’s witnesses testified that he measured Sixth street, and that it was 45 feet from curb to curb. The plaintiff testified that he was traveling on the west side of Sixth street, 5 or 6 feet from the curb. So it appears that there was testimony tending to corroborate the plaintiff, and to show that the train was running much faster than the train crew said it was; otherwise it would have been stopped before it reached the plaintiff, instead of striking his automobile and moving it 20 feet.

Counsel for appellant cite eases in which it has been held by appellate courts that when the undisputed physical facts show that a person approaching a crossing could have seen the approaching train, if he had looked for it, his testimony that he did look and did not see the train should be disregarded and not permitted to have any probative force, and it is contended that the rule referred to has application to this case. In other words, the contention is that, while the plaintiff stated on the witness stand that he looked for the train when he was within 10 feet of the railroad! track, the other undisputed facts show that he did not dio so or else he saw the approaching train; and therefore the verdict of the jury finding, in effect, that he did so look and did not see the train, should be set aside. In other words, the argument is that the time which elapsed between the time when plaintiff says he looked and the time the collision occurred was so short that the train, even if it was running at a speed rate of 30 miles an hour, must have been within less than 100 feet of - the plaintiff, although he said he could see that distance and did not see it. The answer to that argument is that there was testimony tending to show that the plaintiff was mistaken when he said he was within 10 feet of the railroad track at the time he looked up and down the street to see if a train was approaching. Appellant’s claim agent, Mr. Hyde, testified that he went upon the scene the next morning; that he measured the distance from the west line of Jackson street to the first railroad track that would be reached by a person traveling south on Sixth street, and the distance was 3‘4 feet. It is true that he followed that statement up with another to the effect that he did not measure the distance, but would judge it to be about 20 feet; but the jury had the right to believe whatever portion of his testimony they saw proper. At any rate, his testimony indicates that the plaintiff was mistaken when he estimated the distance from the railroad track at which he first looked when approaching the same. Also, the plaintiff testified that at the time he looked for the approaching train a brick building on the corner to his left interfered with his vision, so that he could only see about a third of a block, or from 100 to 150 feet down Jackson street. Considering that testimony, the jury may very properly have concluded! that the plaintiff was mistaken when he said he was within 10 feet of the railroad track when he looked for the train, because if he had been at that place he would have been out in the street, and the house referred to would not have obstructed his vision; and, if the light from the arc lamp at the corner was sufficient, he necessarily could have seen much further than 150 feet down Jackson street. So it appears that the jury had the right to conclude that the plaintiff’s car was probably 40 feet from the railroad track when he first looked up andi down the street, and if such was the case, and the train was running 18 miles an hour, and the plaintiff traveled the intervening distance at a speed of only 3 miles an hour, then at the time he looked the approaching train was more than 150 feet away and not within the range of his vision. In other words, if the plaintiff’s car was going at the rate of 3 miles an hour and the train at the rate of 18 miles an hour, the latter was traveling 6 times as fast as the former, and while the plaintiff’s car was traveling 40 feet the train would travel 240 feet Hence we hold that this case is distinguishable from those cited and relied! upon by counsel for appellant, and comes nearer being within the class of cases illustrated by T. & P. Ry. Co. v. Fuller, 13 Tex. Civ. App. 151, 36 S. W. 319, and Boyd v. Railway Co., 101 Tex. 411, 108 S. W. 813. Whether or not the plaintiff was guilty of negligence in not again looking before he reached a point which rendered the collision inevitable was a question of fact for the jury, and that question was resolved in his favor by the answer given to the fifth special issue. It will be noted that the jury did not find how far appellee was from the railroad: track when he first looked for a train; and it is more probable that he made a mistake as to distance, than as to the fact that the house on the corner interfered with his vision when he looked down the street.

Counsel for appellee, claiming that this appeal is manifestly for delay, have requested this court to assess 10 per cent, damages, as authorized by statute when it is apparent that an appeal has been prosecuted for delay only; but we do not believe that this case falls within that class, and therefore that request will be denied. In other words, we are impressed with the view that this appeal is in good faith and not merely for delay.

However, there is one criticism which we deem it our duty to make, and that has reference to the manner in which the statement of facts has been prepared. In fact, the criticism goes to the manner in which cases are sometimes tried. For instance, the statement of facts shows that two photographs of the place where the collision occurred were introduced in evidence, and one witness testified with reference to one ef those photographs, but neither of them have been brought up with the record!, and therefore some of the witness’ testimony is unintelligible to us, and we are deprived of the benefit which the jury had of the photographs themselves as testimony. Also, it appears that while the case was being tried a map was drawn on the floor in front of the jury, and witnesses testified with reference to it, and much of their testimony is unintelligible to us for the reason that the statement of facts merely shows that the witnesses pointed to certain places on the map; but it is impossible for us to tell where those places were. To illustrate, we copy from page 33 of the statement of facts as follows:

“(Indicating) Here is the side of the street, we were coming up this way. Now, right along here is the edge of the walk, and I gave the signal to him about the middle of the street. There is where I was when I gave the signal.”

Many other similar defects appear in the statement of facts, and therefore the case is not presented in this court as it was in the court below, and perhaps we might be justified in affirming the judgment for that reason. Oases should be so tried as that when an appeal is taken a statement of facts can be brought up which will intelligently show what the witnesses said while testifying; and while for the time being it may be more convenient to have a witness point to a certain place on a sketch on the floor, and say this is where the switch stand was located, etc., unless that testimony is supplemented by a map incorporated in the statement of facts, or by some other testimony by which an appellate court can understand the testimony referred to, parties appealing will take the risk of having the appellate court disregard 'the entire statement of facts.

No reversible error has been shown, and the judgment is affirmed.

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


text:
    STANFORD v. WILIE, CARPENTER & McCLELLAND.
    (No. 5493.)
    (Court of Civil Appeals of Texas. Austin.
    May 12, 1915.)
    1. Bbokebs <&wkey;54 —- Compensation — Sufficiency oe Services.
    To earn his commission a broker must procure a purchaser ready, able, and willing to carry out the contract, and a failure to do so destroys his right of recovery.
    [Ed. Note—For other eases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. <&wkey;54.]
    2. Brokers <&wkey;60—Commissions—Right to.
    A broker procuring for his principal a contract for the exchange of property providing that each party should furnish the other an abstract showing a good and merchantable title to his property, on failure of the other party to show such title, for which reason the exchange was never carried out, was not entitled to a commission; but the principal could not avoid liability on the ground that the contract would not be specifically enforced on account of the other party’s failure of title, since the contract in effect declared that it was not enforceable in case either party was unable to furnish a good title.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. t&wkey;>60.]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by Wilie, Carpenter & McClelland against J. IT. Stanford. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    W. L. Edison and J. A. Stanford, both of Waco, for appellant. Chas. B. Braun and Witt & Saunders, all of Waco, for appellees.
   RICE, J.

We adopt appellant’s statement of the nature and result of the suit, which shows that:

“This is a suit by appellees for the recovery of commissions, in which appellees allege, in substance, that they, as agents of appellant, procured the execution of a written contract between appellant, their principal, and T. E. Prunty, for the exchange of certain real estate, and that by so doing they had earned their commissions. Appellant answered, admitting the execution of said contract for the exchange of properties with T. B. Prunty, but alleged further that said contract was only a preliminary step looking to the exchange of said properties, and that said contract provided that each party should furnish the other, within ten days, an abstract showing a good and merchantable title to the property proposed to be exchanged, and alleged further that the abstract furnished by Prunty not only failed to show title in Prunty to the 134.6 acres, which he contracted to convey to appellant in exchange for his section, but showed 'affirmatively that T. E. Prunty did not own said land, and that said abstract furnished by Prunty purported to show title to only 122.98 acres, and that' the title to said 122.98 acres, as shown by said abstract, was defective in many particulars, and was not a good title, and that said defects were never cured, for which reason said exchange was never carried out.”

Appellees presented several special exceptions to all the allegations in appellant’s answer to the effect that Prunty did not own the land which he contracted to convey to appellant, and that the title to such land as he did own was not a good and merchantable title, and that by reason thereof the exchange was never made, etc., upon the ground that said allegations were immaterial and irrelevant. The court sustained said exceptions, to which action of the court the defendant excepted. Appellees introduced the contract for the exchange of properties and some preliminary evidence, whereupon the court instructed the jury to return a verdict for ap-pellees, and judgment was entered in accordance therewith, from which appellant prosecutes this appeal, urging that the court erred in sustaining appellees’ exception to the paragraph of his answer asserting that Prunty did not have a good title to the farm in question.

It is true that appellant entered into a contract with Prunty by which he agreed to sell and convey to him a section of land in Armstrong county, and that Prunty, in consideration thereof, agreed to purchase the above-described section, and in payment therefor agreed to convey to appellant his said farm in McLennan county, consisting of 134.6 acres, but said contract contains these further stipulations, as follows:

“It is further mutually agreed that each party hereto will furnish an abstract brought down to date to the other party, showing a good and merchantable title to the respective properties involved in this contract; this deal to be closed within twenty days from date. Provided, that should either party find valid objections to the title to the property being conveyed to him, then the party conveying such title shall have ten days within which to remove such objections.”

Thereafter a supplemental agreement was made whereby the parties extended the time within which to close said deal.

It is elementary that the broker, in order to comply with his contract and earn his commission, must procure a purchaser who is ready, able, and willing to carry out the contract, and a failure to do so defeats his right of recovery; but appellees insist that having brought the parties together, who made a contract binding each other to an exchange of lands, they were entitled to recover their commissions, notwithstanding the trade was not consummated owing to the defective condition of Prunty’s title, citing in support of their contention Seidel v. Walker, 173 S. W. 1170; Watkins v. Thetford, 43 Tex. Civ. App. 536, 96 S. W. 72; Leuschner v. Patrick, 103 S. W. 664; Scully v. Williamson, 26 Okl. 19, 108 Pac. 395, 27 L. R. A. (N. S.) 1000, Ann. Cas. 1912A, 1265; Moore v. Irvin, 89 Ark. 289, 116 S. W. 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. Rep. 97; Goldberry v. Thomas, 178 Mo. App. 334, 165 S. W. 1179; Lombard v. Sills, 170 Mo. App. 555, 157 S. W. 93; Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345; Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35; note to 11 Ann. Cas. 786; Kalley v. Baker, 132 N. Y. 1, 29 N. E. 1091, 28 Am. St. Rep. 542.

We understand these authorities to apply to cases in which an unconditional contract binding the parties to convey is entered into. Here, the contract was contingent, dependent entirely upon the ability of each of the parties to furnish an abstract showing a good and merchantable title to their respective properties, and a failure to do so would defeat the contract. So, in our opinion, the court erred in sustaining the exception holding that the defense of failure of title was immaterial. Besides this, appellant contends that he was not liable for commissions, for the reason that the contract could not be specifically enforced on account of failure of title on the part of Prunty, citing in support of this view Blair v. Lowrey, 164 S. W. 14; Hahl & Co. v. West, 129 S. W. 878; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 122; Greusel v. Dean, 98 Iowa, 405, 67 N. W. 275. See, also, Mass & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847.

In Blair v. Lowrey, supra, where a similar defense to the one here invoked was made, it was held that the broker was not entitled to recover on the ground that the contract could not be specifically enforced. We think .the instant case is distinguishable from the line of eases cited by appellees, of which Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345, is perhaps the clearest enunciation of the doctrine contended for by appellees, for the reason that the parties in this case entered into a conditional contract in which it was contemplated that neither should be bound in the event that the other did not comply with that provision of the contract wherein he bound himself to furnish a good and merchantable title. Such a provision was equivalent to the insertion of a stipulation to the effect that this contract is not enforceable in the event either party is unable to furnish a good title to the land he binds himself to convey. Appellees therefore did not bring themselves within the rule announced in Roche v. Smith, supra, and the other cases relied upon by them.

Eor the reasons indicated, the judgment should be reversed, and the cause remanded, and it is so ordered.

Reversed and remanded.
      <S=»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes