author: SWEARINGEN, J.

text:
    LOVENSKOILD et al. v. CASAS.
    (No. 5874.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 6, 1917.
    Rehearing Denied June 22, 1917.)
    1. Evidence @=>317(4) — Hearsay.
    Witness could not testify that plaintiff told him that plaintiff's grantor gave him the deed to keep; that being hearsay.
    [Ed. Note. — -For other cases, see Evidence, Cent. Dig. § 1177.]
    2. Evidence @=>271(15) — Self-Serving . Declarations.
    Such statement was inadmissible as self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1092, 1003.]
    3. Evidence @=>121(9) — Res Gestas.
    Such statement was inadmissible as not part of the res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 320-325.]
    4. Witnesses @=3159(2) — Interest — Disqualification.
    In trespass to try title by a grantee against his grantor’s executor, witness could not testify that plaintiff told him that plaintiff’s grantor gave him the deed to keep, that being inadmissible as violating Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, as to testimony of parties as to transactions with the testator, in actions against executors. •
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 629, 667, 66S, 678.]
    5. Evidence @=>123(1) — “Res Gestas.”
    A narrative declaration is not res gestse.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351, 357, 359, 368.
    For other definitions, see Words and Phrases, First and Second Series, Res Gestae.]
    6. Evidence @=>444(4) — Parol — Restrictions in Grant.
    If a deed contains no restriction rendering it operative only on the grantor’s death, no such clause can be added by parol.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929, 1930, 1940, 1941, 2049.]
    7. Wills @=>88(2) — “Deed” or Will.
    An instrument purporting to convey title to lands on its delivery is a deed and not a will, though possession be deferred until the grantor’s death.
    [Ed. Note. — For other'eases, see Wills, Cent. Dig. § 209.
    -For other definitions, see Words and Phrases, First and Seco'nd Series, Deed.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by Juan Casas against Perry G. Lov-enskoild and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Jno. O. Scott and E. B. Ward, both of Corpus Christi, for appellants. S. A. Early and T. O. Woldert, both of Corpus Christi, for appeUee.
   SWEARINGEN, J.

This is a trespass to try title suit by appellee, Juan Casas, against appellants, Perry G. Lovenskoild, as executor of the will of Oscar C. Lovenskoild, deceased, and the beneficiaries under the will to recover two described lots in Corpus Christi, Tex., together with rents and waste caused by the removal of improvements from the lots. Appellants answered ‘‘Not guilty,” and pleaded title by limitation of three, five, and ten years. Upon special issues answered by the jury, the court rendered judgment for ap-pellee.

Oscar Lovenskoild, a bachelor, in 1889 executed a deed conveying to Juan Casas, th§ appellee, the property, here involved, to be delivered to Juan Casas after the grantor’s death. Juan Casas was an employé, agent, and confidential friend and intimate associate of Oscar Lovenskoild from 1874 until 1904. There is no dispute that possession of the deed was retained by the grantor, in accordance with his intent for delivery after his death until the latter part of April or first part of May, 1903. Juan had free access to all of the grantor’s papers, including the deed, in his capacity as employé. In 1904 Juan Casas was discharged by Oscar Lov-enskoild. The issue decisive of this litigation is whether or not Juan Casas came into control of the deed, under which he claims, with the consent of Oscar Lovenskoild or without his consent.

The evidence is conflicting, but the jury determined the issue in favor of the appellee, which would conclude this court but for the error of the trial court in admitting, over objection of appellants, material illegal evidence, which is presented in the sixth and fourteenth assignments.

The error assigned in the sixth is that the court failed to exclude the following-testimony: “Juan Casas * * * said Mr. Oscar gave me this deed to keep,” referring to the Oscar Lovenskoild-Juan Casas deed, at the time in his possession. The objection was hearsay, self-serving, and forbidden by the statute (article 3690), and not res gestse.

The objections should have been sustained for each of the reasons urged. The extrajudicial declaration of Juan was hearsay, because it was not the 'best,, evidence to prove that Mr, Oscar actually gave Juan the deed. The declaration was not made under oath', with opportunity of cross-examination, and Oscar Lovenskoild was not present. Dwyer v. Bassett, 1 Tex. Civ. App. 515, 21 S. W. 621; Taliaferro v. Goudelock, 82 Tex. 521, 17 S. W. 792. The declaration is so clearly self-serving as to preclude comment. As stated in Mooring & Lyon v. McBride:

“AYe know of no case in which such declarations were admitted for the purpose of showing title in the declarant.” Mooring & Lyon v. McBride, 62 Tex. 312.

The declaration explains a transaction had by Juan Casas with Oscar Lovenskoild, who was dead at the time of the trial of this suit against his executor, as • such, and the declaration purports to show that Oscar Lov-enskoild intended to deliver this deed to Juan Casas, and intended to lose control thereof at the time of delivery. Such testimony is expressly prohibited by the statute (article 3690). The declaration was not res gestse of the fact of possession o’f the deed.

Appellee’s counsel disclose by their brief, and the trial court by its qualification of the bill of exception, that they considered this declai’ation analogous to statements of persons in possession of land showing character of possession to support claim of adverse possession like those approved in Word v. Drouthett, 44 Tex. 368; Curtis v. Wilson, 2 Tex. Civ. App. 649, 21 S. W. 787; Harnage v. Berry, 43 Tex. 567; Campbell v. S. A. Machine & Sup. Co., 133 S. W. 752; Carter v. Town of La Grange, 60 Tex. 638; Flanagan v. Boggess, 46 Tex. 337; Bradshaw v. Mayfield, 18 Tex. 21; or like those cases where possession of declarant- was under claim of ownership, not tenancy; Field v. Field, 39 Tex. Civ. App. 5, 87 S. W. 726; Whittaker v. Thayer, 48 Tex. Civ. App. 512, 110 S. W. 787; or like those admitting declarations of persons in possession of personal property evidencing ownership or bailment or explaining nature of possession. Smith v. Savings Bank, 1 Tex. Civ. App. 123, 20 S. W. 1119; Fellman v. Smith, 20 Tex. 101. It is argued by appellee’s counsel that Juan Casas had possession of the deed, and that his declaration characterizes the possession as ownership. Appellee contends that this characterization is important, because the possession was equivocal, for the reason that Juan Casas may have had the deed as owner or only as a messenger for the purpose of carrying it to a custodian, as was the character of his possession of the will. It is further argued that the character of the possession is the main issue to be established; that the possession unexplained does not establish the main fact; that the declaration explaining the possession is a part of the fact of possession and therefore res gestse. The argument is plausible and receives apparent support from the cases cited. However, the contention is unsound and tlie authorities cited are j not applicable to declaration in evidence here. In the first place the character of Juan’s possession of the deed is not a main issue; it is not even a collateral issue in this case. He had possession. That is not disputed. In what capacity he had possession is immaterial. The issue is, how did he get possession? How, not what. Did Oscar Lovenskoild give it to Juan to keep as his o.wn, or did Juan acquire possession without the grantor’s consent? If the declaration only completed the fact of possession by explaining the physical situation with the explanation of the nature thereof, it would be immaterial in the case at bar; therefore not admissible as res ges-tae. However, the declaration does not explain nor purport to explain the immaterial issue of character of possession, by showing what the declarant’s intention was in regard to the possession; it explains what Oscar Lovenskoild’s intention was at another place and time, for the declaration is that Oscar gave the deed to Juan, and it was Oscar’s intention that Juan should keep it for his own and thereby acquire Oscar’s property.

Oscar’s intent cannot be proven by the evidence, after the death of Oscar, of a declaration made by Juan in the absence’ of Oscar under the guise of res gestee explaining possession of the deed. The intent of Oscar at time of delivery of deed, if he did deliver it to Juan, is certainly not a part of the fact of possession by Juan of the deed at another place and time out of the presence of Oscar, and is therefore not res gestee. In all the relevant cases cited by appellee, the declarations, admitted as res gestae, explained the intent of the declarant, not of some other absent adverse party.

Another reason why the declaration is not res gestae is that the declaration itself was a narrative by Juan of Oscar’s previous act and a narrative of Juan’s conclusion of Oscar’s intent in performing that act. A declaration which is a narrative is not res ges-tee. M., K. & T. Ry. Co. v. Tarwater, 33 Tex. Civ. App. 116, 75 S. W. 937. Indirect and Collateral Ev. by Gillett, §§ 264 and 289, citing many cases under note 1, page 316, and note 2, page 349. Then again, the circumstances surrounding this declaration destroy it as res gestee, were it ever such, because tlie causal relation between the act and the declaration is broken by the opportunity and probability of individual wariness, seeking to manufacture evidence for itself. Indirect & Collateral Ev. (Gillette) § 239; State v. Martin, 124 Mo. 514, 28 S. W. 12; McGowen v. McGowen, 52 Tex. 664. It is manifest from the record that this evidence was calculated to materially influence the jury in reaching its verdict that Oscar Lovenskoild delivered the deed to Juan to keep. The declaration made the basis Of the fourteenth assignment should have been excluded for the reasons expressed above.

The sixth and fourteenth assignments are sustained.

The first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth, and sixteenth assignments, all complaining of the admission of testimony over objections of appellants, are all overruled.

' That the judgment is contrary to the law and evidence is the substance of the seventeenth assignment, under which five propositions are submitted. The first, second, fourth, and fifth concern the’existence and certainty of the evidence relating to various issues of fact, which was the proper subject of determination by the jury and trial court, and may be again -submitted to a jury.

The third proposition cannot be sustained for the reason that the deed itself contains no conditions within itself that deed be of no effect until death of grantor, and if delivered to the grantee by the grantor as appellee contended, no conditions could be added thereto by parol. Holt v. Gordon (Sup.) 174 S. W. 1097.

When the deed was delivered to appellee by Oscar Lovenskoild, appellee acquired control of the deed, and the grantor, Lovenskoild, lost control of it, and the fee estate granted in the deed became vested in Juan Oasas, instanter. Such a conveyance, even though possession was dependent upon the event of the death of the grantor, is not a will, but a deed. Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Griffis v. Payne, 92 Tex. 296, 47 S. W. 973. The seventeenth assignment is overruled.

’ The judgment of the trial court is reversed, and the cause remanded.
      <S=>Ror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    BUMPUS v. LOVEJOY.
    (No. 226.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 11, 1917.)
    1. Principal and Surety <§=>160 — Liability-Notice Requisites.
    As notice by surety to obligee to collect from the principal must be in writing, verbal request is inadmissible.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 436^438.]
    2. Principal and Surety <§=>45 — Relation —Evidence—Sufficiency.
    Evidence held to show that defendant promised to pay plaintiff individually and not as surety.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. § 22.]
    3. Principal and Surety <§=>161 — Liability — Notice Requisites — Evidence'—Sue-itciency.
    Evidence held insufficient to show that defendant, who claimed tó be a surety, gave the required notice to the obligee to collect from the principal.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439-441.]

      4. PEINCIPAL AND SUKETY <S=»126(1) — LIABILITY — NOTICE—Insolvency of Pbincipal —Effect.
    Where the principal is insolvent when the surety gives the obligee notice to collect from the principal, the surety is not released by such notice.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 329-341, 345, 351.]
    Appeal from Harris Couaty Court; Murray B. Jones, Judge.
    Action by J. E. Bumpus against John Love-joy. Judgment for defendant, and plaintiff appeals. Appeal was transferred.
    Reversed and rendered.
    Harry Holmes, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   BROOKE, J.

This was an action for debt by J. E. Bumpus against John Lovejoy, for services rendered as foreman and driller on certain oil wells. Plaintiff filed his original petition on December 18, 1914, wherein he alleged that he was employed by defendant; John Lovejoy, on or about March 19, 1913, at a salary of $200 per month, to perform the services of foreman and driller; that on said date he entered upon the performance of such services, and continued to perform such services until March 14, 1914; that defendant had failed and refused to pay him his salary from November .1, 1913, to March 14, 1914; that the amount due him was $893.34. On October 29, 1915, defendant Lovejoy filed his first amended original answer, denying the allegations of plaintiff’s petition, denying that he had personally employed plaintiff, or that plaintiff performed such work for defendant, and alleging that such services were performed for the Pecos Valley Oil & Gas Company, a corporation in which defendant was a stockholder and president; that said corporation was primarily bound for any wagesi due plaintiff; that if defendant was liable, it was as suretv, and his liability was secondary to that of the corporation. Defendant further alleged that said corporation, on February 1, 1914, became insolvent, and á receiver was appointed therefor; that plaintiff was then and there advised that as to the claim of lilaintiff against said corporation, under the laws of New Mexico, where said corporation had its domicile and principal place of business, plaintiff was entitled to ia first lien upon the properties of the corporation to secure the amount due him for services; that defendant notified plaintiff and requested him to prove his claim against said corporation, that same might be established and paid out of the assets of said corporation; that plaintiff refused to prove up his claim in such receivership, and establish his lien,, and that thereby defendant was released, from any liability therefor. ■ On December 18, 1915, plaintiff filed his second supplemental petition in answer to defendant’s first amended original answer, denying that he' w>as employed by the Pecos Valley ¡Oil & Gas Company, and alleging that he was employed by defendant, Love-joy, and alleging, in the alternative, in case the court should find that he was mistaken in his allegations, or that such services were performed for said corporation, that defendant Lovejoy promised and agreed in writing to pay plaintiff for such services irrespective of the company, and was primarily liable therefor, and that such services were performed! relying upon such promises. Plaintiff further admitted that the Pecos Valley Oil & Gas Company was a foreign coloration, organized under the laws of New Mexico, and' that it was insolvent, and had no permit to. do business in Texas. On February 18, 1916,. defendant filed his first supplemental answer,, substantially averring the same facts as alleged in his first amended original answer. The case was tried February 18, 1916, berore-the court without a jury, and was taken under advisement until February 25, 1916, when judgment was rendered for defendant, to. which plaintiff promptly excepted and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District-of Texas, at Galveston, and requested the court to file his findings of fact and conclusions of law, which were filed by the court. On. March 16,1916, plaintiff filed his appeal bond,, and perfected his appeal to the Galveston court, and the case is here before us by transfer from said Galveston court.

Plaintiff’s request for special findings of fact was as follows;

“Comes now J. E. Bumpus, plaintiff in the-above numbered and entitled cause, and requests the court, in addition to the findings of fact heretofore filed herein, to file special findings upon the following points, to wit;
“(1) Who was the principal obligor upon the obligation for salary due plaintiff herein, upon which the court finds that defendant, John Lovejoy, to be a surety, by his findings of fact heretofore filed herein.
“(21 If the court finds that the Pecos Valley Oil & Gas Company, a corporation, was the-principal obligor upon the salary sued for by plaintiff, then plaintiff asks that the court find where said corporation was organized, and whether or not it had a permit to do business in Texas.
“(3) Whether or not said Pecos Valley Oil & Gas Company, principal, was solvent at the time-defendant, John Lovejoy, gave plaintiff notice to file his claim with the receiver.
“(4) Whether or not there was a mortgage-upon the assets of said corporation, Pecos Valley Oil & Gas Company, at the time defendant, John Lovejoy, gave plaintiff notice to file his claim, which notice is found in findings heretofore filed herein.
“(5) Whether or not under the laws of New Mexico, a mortgage lien is superior to the lien given laborers by statute. .
“(6) Whether or not the lien ¡which the court finds plaintiff had under the laws of New Mexico, upon the assets of the Pecos Valley Oil &. Gas Company, was a statutory lien.
“(7) What was the amount due plaintiff from, said Pecos Valley Oil & Gas Company, for salary, from November 1, 1913, to March 14, 1914,.. upon which the court finds John Lovejoy to be •a surety.”

The findings of the court on said request :are as follows:

“The court finds as a matter of fact in this case that the defendant, John Lovejoy, was liable as surety for the salary of the plaintiff at $200 a month from the 1st day of November, 1913, to the 14th day of March, 1914; that thereafter he gave notice to the plaintiff in writing to prosecute his claim against the corporation after the corporation had gone into the hands of the receiver; that under the law applicable to this case, plaintiff had a lien on the properties of the corporation for his salary; that the defendant sent a lawyer, to wit, Judge Brice, out to New Mexico to advise and assist the plaintiff in filing said claim and prosecuting it against the corporation which was the principal debtor; that the defendant, Lovejoy, in October, 1913, had repudiated any obligation of liability for the plaintiff’s salary as principal, and had specifically’instructed him that he was not to be liable except as a surety thereafter; that the plaintiff, Bumpus, failed and refused to prosecute his claim against the corporation and file his lien as provided by law after having been notified so to do by the defendant, Love-joy, and that the plaintiff stated that he did not want to sue the company, but would make his claim out of Lovejoy and refused to sue the company, even though he (defendant) sent a lawyer out to New Mexico in order that plaintiff might file his claim against the company.
“I find as a matter of law that, the defendant, John Lovejoy, being a surety and having notified in writing the plaintiff to file his suit and prosecute his claim against the principal debt- or, a corporation, and plaintiff having expressly failed and refused so to do, under the statute of Texas and the law applicable to this case, the defendant, John Lovejoy, is released from said obligation.”
“Be it remembered that in the above "numbered and entitled cause, at the request of plaintiff, the court makes the following findings of fact, in addition to the findings heretofore filed herein.
“I find that the Pecos Valley Oil & Gas Company, a corporation, was the principal obligor upon the indebtedness sued for by plaintiff in this cause, being salary due him, and that defendant, John Lovejoy, was a surety for said salary.
“I find that the Pecos Valley Oil & Gas Company was a corporation organized and existing under the laws of the state of Arizona, and had no permit to do business in Texas.
“I find that the Pecos Valley Oil & Gas Company was insolvent at the time defendant John Lovejoy, gave plaintiff notice to file his claim with the receiver.
“I find that there was a mortgage upon the assets of the Pecos Valley Oil & Gas Company at the time defendant, John Lovejoy, gave plaintiff notice to file his claim with the receiver.
“I find that under the laws of New Mexico a mortgage lion is superior to the lien given laborers by statute.
“I find that the lien which plaintiff had upon the assets of the Pecos Valley Oil & Gas Company under the laws of New Mexico was a statutory lien.
“I find the amount due plaintiff, J. E. Bump-us, by Pecos Valley Oil & Gas Company, upon which defendant, John Lovejoy, was a surety to be $893.34.”

Plaintiff’s contentions in the premises are: (1) That the promises made by defendant to pay plaintiff his salary were unqualified’ promises to pay, irrespective of the company; thereby he became primarily liable to the plaintiff; (2) that if defendant, Lovejoy, was , a surety upon the obligation, he could not be released by mere passivity on the part of plaintiff; (3) that if the obligee could require the filing of such claim, the written notice shown to have been given is wholly insufficient; (4) that if the notice shown to have been given was sufficient to require any action on the part of plaintiff, the principal was insolvent at the time, which rendered it unnecessary to take any action.

Following these contentions, the first and second assignments of error are as follows:

(a) The court erred in overruling plaintiff’s objection to the testimony of C. R. Brice as to a verbal request made by him" to plaintiff about proving up his claim.

(b) The court erred in his findings of fact that plaintiff failed and refused to prosecute his claim against the corporation, as provided by law, after having been notified to do so by defendant, and that defendant sent a lawyer to New Mexico in order that plaintiff might file his claim, because said findings are based upon the testimony of O. R. Brice, erroneously admitted over the objections of plaintiff. .

His proposition is:

“Where the law requires a notice to be in writing in order to give it effect, the admission of testimony as to a verbal notice, when affirmatively shown by the record to have influenced the court’s judgment, is reversible error.”

On the contrary, it is contended that:

“Where the defense is predicated not only upon a formal notice by the surety to the creditor in writing to sue upon his demand, but also upon a willful and negligent loss of securities held by the creditor, it is proper to show the transactions between the surety and the creditor in order to determine whether there was a willful or negligent failure upon the part of the creditor to exercise the diligence required of him to realize upon such securities, and the testimony complained of was admissible for that purpose.”

We do not understand the law to hold with appellee in this matter. As to the notice required under the statute, that a surety by notice in writing may require creditors to bring action against the principal debtor as soon as the right of action has accrued, it has been held that a verbal notice by the surety not acted on by the creditor will not release the surety .from his liability. Leazer v. Menefee, 61 S. W. 438. And it has been also held that the written notice by - the surety to the creditor or obligee that he “does not intend to pay until he is forced to do so,” or that he “did not intend to pay the notes or any expenses attached to them until the courts say” he will have to do it, are insufficient as notice, under article 3811, tit. 84, Rev. St. 1895. Williams v. Ogg, 42 Tex. Civ. App. 558, 94 S. W. 420; National Bank of Commerce v. Gilvin, 152 S. W. 652.

As above stated, it is our opinion that there must be written notice, and that a verbal request was inadmissible. The testimony, shows that Brice testified as follows:

“Mai. Lovejoy asked me to have the plaintiff in this case prove up his claim. My recollection now is that I took it up with him; I am satisfied X did. I do not remember what he said about it. I can’t recall. I can’t even recall now what or where I said anything to him, but to the best of my recollection the matter was taken up, because I was instructed to do so by Maj. Lovejoy undoubtedly.”

It will be seen from the court’s conclusions that the court was influenced by this testimony in his findings. The assignments are well taken, and will be sustained.

The third assignment of error is as follows :

“The court erred in overruling plaintiff’s objection to the testimony of John Lovejoy, and in permitting defendant to testify that he was acting in his official capacity as president of the Pecos Oil & Gas Company, in all of his dealings with plaintiff, instead of what actually happened between plaintiff and defendant, as shown by plaintiff’s bill of exception No. 2.”

The fourth assignment is:

“The court erred in his findings of fact that the defendant, John Lovejoy, was a surety upon the obligation sued on by plaintiff, because each and every promise made by defendant was a primary obligation of defendant to pay plaintiff his wages irrespective of the company, and such findings of fact were excepted to by plaintiff, as shown by his bill of exception No. 4.”

The plaintiff testified:

“Mr. Lovejoy said he himself would pay me the $200 per month or would be personally responsible. He also wrote me from Houston on June 28, 1913, as follows: ‘So far as the pay roll is concerned, I will take care of that under all circumstances, so you can go right ahead with the work.’ ”

On August 15, 1913, defendant, Lovejoy, wrote plaintiff as follows:

“This is a business proposition with me, and X do not want any favoritism with anybody. The men expect their wages, I am paying them, and I expect in return a full day’s work. I want none but the very best and most competent men you can get.”

On December 10, 1913, defendant wrote plaintiff as follows:

“Of course you- understand from which I told you when I was out there, I would look after the labor bills myself. It does not make any difference if I were to lose all the money I put in, there is no man working by the day or month who will lose his wages. I told you that when I was out' there, and I know you have relied on it." (Italics ours.)

On January 3, 1914, defendant, Lovejoy, wrote plaintiff as follows:

“I wish you would send me the pay roll for December. I want to try and send you checks to cover both November and December pay rolls in a few days. Sorry I have been delayed but it is very hard to get hold of money here now.”

On January 5, 1914, he wrote him as follows:

“The company will have to pay all bills for material, and at present I have not as yet arranged the money affairs of the company, but as I wrote you before, irrespective of the company I will attend to the wages of the men.”

It is evident to this court that the conclusions of the defendant, as expressed in his testimony, are shown to have been considered by the court, as expressed in his findings. There is no evidence, in' our opinion, that will sustain the findings of the court, to the effect that the defendant, .Lovejoy, was a surety, and that the Pecos Valley Oil & Gas Company, a corporation, was the principal. Being of the opinion that these assignments are well taken, they are, in all things, sustained.

The fifth assignment is as follows:

“The court erred in findings of fact that defendant in October, 1913, repudiated any obligation of liability for plaintiff’s salary, and specifically instructed him that he was not to be liable except as a surety, because there is no evidence to support such findings, and said findings were excepted to by plaintiff,” etc.

On October 9, 1913, defendant, Lovejoy, wrote plaintiff as follows:

“I am instructed by the board of directors of the Pecos Valley Oil & Gas Company to ask you to take charge of everything, connected with the property of the company. The board of directors want you to keep the accounts of everything bought and the pay roll, and to tell Mr. Bain and his father that their services will not be required any further by the company. You' can make your report to me as president of the company. We have a new board of directors now, which is controlling all of the affairs of the company.”

On the same date defendant wrote a personal letter to plaintiff, as follows:

“I am writing you a separate letter from this, stating that the board of directors have put you in charge of the whole work and the whole field and to let Bain and his father out. I am also writing a letter to Bain that his services will no longer be' required, so I want you to have everything turned over to you, and let him and his father move off the premises together. This letter, of course, is to you and no one else. He will not know that I received any letter from you about what is going on, but I will put the whole responsibility where it was on the report that was made by Robinson.”

On December 10, 1913, defendant wrote plaintiff as follows:

“Of course you understand from what I told you when I was out there, I would look after the labor bills myself. It does not make any difference to me if I lose all the money I have put in, there is no man working by the day or month who will lose his wages. I told you that when I was out there and I know you have relied on it.”

The findings of the court seem to have been predicated upon the letter of October 9, 1913, as above stated, and on a letter written December 10th, .two months after the court finds that he repudiated any liability, he admits telling plaintiff he would pay the labor, and that he knew plaintiff had relied upon it, and upon January 3d following that he would pay for the labor, irrespective of the company. The assignment, as above said, is well taken, and it is sustained;

The sixth assignment challenges the action of the lower court in his findings of fact that defendant gave plaintiff notice in writing to prosecute his claim against the corporation principal, because “the notice in writing shown to have been given is insufficient to constitute notice in writing as required by the statutes of this state, and said findings were excepted to by plaintiff.” The proposition under this assignment is:

“In order for a surety to require an obligee to file suit against his principal, he must give him written notice to do so, which notice must be full, explicit, and a peremptory demand to file suit, followed by the statement that the surety will not be further liable if such is not done.”

The only notice that is reflected by the record is contained in a letter from defendant to plaintiff dated February 2, 1914:

“Mr. J. B. Bumpus, Artesia, New Mexico— Deal Sir: I am in receipt of your telegram as follows: ‘Please wire me today what you are going to do.’ I do not know what I am going to do yet. I want to know first what the situation is out there. That is, I want to know if you have given bond and qualified as receiver. I have not learned from Judge Brice yet what he did exactly, except that I know he had a receiver appointed and had you named as receiver, and that the court refused to make receiver’s certificates first lien on the property. If the receiver’s certificates had been made first lien ón the property I could have placed them here and paid some of the debts of the company, that is, I could have paid all the labor bills and liens for material.
“Judge Brice wired you to prove up your claim for your monthly wages, November, December and January. If you have not done so, do so on receipt of this letter. It will take some time for me to say just what can be done with this property. I am more interested than anybody else because the company owes me about twenty thousand dollars in cash money, and that is about one-half what the company owes, but still I am willing for them to get the money before I do.
“I am writing you instead of telegraphing because I do not want to go to the expense of telegraphing.
“I wish you would let me know if you can get a rig to finish up the Altus well and about what it will cost to finish that well. You never told me what the result of shooting the Terry well was, or in what condition you got the Terry well. Let me hear from you on receipt of this letter.
“Yours truly, John Lovejoy.”

To this letter the plaintiff answered as follows:

“Mr. John Lovejoy, Houston, Texas — Dear Sir: Your letter of 2d received, and you want to know what the situation is out here. (Now that depends altogether on what you are going to do for I cannot do anything out here at all without money. I made application for a bond and I got the whole thing back last night and they refuse to make a receiver’s bond where the liabilities are so much greater than the assets so they returned me my money. So I cannot qualify as receiver but I do not see as you need a receiver if you want to go ahead with the work for the creditors are willing for you to go ahead and finish the Altus well.
“I never got any telegram from Judge Brice at all in regard to the wages for November, December and January. When I left Mr. Brice at Carlsbad he told me he would instruct me as soon as he got to Houston. Now I do not understand why you request me to prove up my claim for my wages for November, Dec. and Jan. as you have written me that you would see that the wages were paid yourself. So I am still relying on what you have said and am still locking to you for my pay.
“Now Mr. Lovejoy I have reached the end of my string and unless you send me my wages I cannot do anything more and will have to get employment elsewhere for I have a family to support. I will mail you pay roll for January and also statement- of my account. Please give this your attention.
“Now about finishing up the Altus well, we can move the machinery from the Martin well up there and do that work cheaper than to get another rig, and if we get any oil we will have the rig to pump it with. Now as to the Terry well, I do not know what it will' do for when I shot it I ruined the bottom joint of casing so we will have to pull and reset the casing before we can pump it and cannot tell results until this is done. We just got it cleaned out nearly to bottom when Feemster got up on his ear and quit so I cannot do anything with it as it is his rig.
“Now Mir. Lovejoy I wish you would give these matters your attention as it means everything to me as I have paid out all the money I have trying to keep things going besides making three trips to Carlsbad and one to Roswell.”

The following letter was received by plaintiff in reply from defendant, dated April 7, 1914:

“Your favor of March 21st was duly received. I have delayed answering your letter, thinking I would have something of importance to write you, but I have not. I had hoped to close a deal last week with parties to take the property over, pay up all the debts except mine, and go ahead with the work. I have loaned the company over twehty thousand dollars, and I do not expect to get a dollar of it back. I am willing to lose it, provided I can make arrangements with people to take it over and pay the other creditors. Did you prove up your claim with the receiver? If not, you should do so. Since the receiver took charge all of his expenses, including a keeper of the property, will be paid out of the property first. If- you are in charge of the property for him he will have to pay that out of the property when sold. All of his expenses are a part of the court costs. The reason I wanted you to prove up your claim, is because I am on a deal with another party who has, in a way, promised to pay the debts all except mine, at least those debts which are a lien on the property, including all labor bills. I will get everything shaped up probably after a while, but at present I am pretty much crippled and will have to have time to build up.”

The above is the testimony relied on by appellant. The evidence in the case did not'justify a finding upon the part of the court that a written request had been given on the part of appellant to the appellee to file suit upon his claim against the corporation, which was claimed to be the principal debtor, and it is not shown by this record that his failure to file his claim, and act upon the request of appellant brought about and was the occasion of the loss of any security which he had for the payment of his indebtedness, for the reason the record shows that there was a $4,000 mortgage against the prop erty, and the record does not show that the assets of the property were sufficient to satisfy the mortgage, and the record does not show that if the appellee had a lien upon the property, by virtue of being a laborer, that the same was a first lien, under the laws of New Mexico, but was subject to prior mortgages.

In our opinion, the notice was insufficient, and was merely an inquiry, seeking to ascertain whether or not the obligee had filed a claim with the receiver, and we do not see how, by any construction, the. same could be considered a demand to file suit.

Further, we are' of opinion that the court erred in holding that the defendant, Lovejoy, was released by failure of defendant to file his'claim with the receiver, for. the reason: (a) The proposed notices in writing shown to have been given by defendant to plaintiff are totally insufficient to constitute notice in writing that a suit be filed, as required by the statute — the statutory requirements were not fulfilled; and (b) we are of opinion that at the time such proposed notices were given, as shown by the record, the Pecos Valley Oil & Gas Company, which it is claimed was the principal obligor, was insolvent.

It is strenuously insisted that the appellant was only a surety or guarantor, and that it was his duty, especially when requested to do so by appellee, to enforce against the principal debtor such securities as he had for the payment of the debt, and that appellant had a lien to secure the indebtedness sued for upon the properties of the corporation, and that the lien was lost by the failure of appellant, although requested, to proceed against the corporation and the property upon which he held the lien, and that thereby the appellee, being a surety, was released. It is not shown by this record that the Pecos Valley Oil & Gas Company had property of sufficient value over the sum-which was secured by first lien, to wit, the mortgage, to satisfy the claim of this appellant; therefor it is not shown by this record that the appellant had the means of satisfaction of his debt actually or potentially within his grasp. The laws of New Mexico, as reflected by this record, only give the appellant a lien, subject, however, to all recorded prior mortgages, and, further, as said before, reflects that there was at least one mortgage of $4,000 upon the property of the company. The record further reflects that the appellant relied, and was entitled to rely, upon the written promises of the appellee for his pay, and upon which, in the opinion of this court, he was warranted in relying. The assignment, therefor, is in all things sustained.

We believe, from this record, that Lovejoy, the appellee, was primarily liable for the obligation sued on, and that the tidal court erred in holding him to be a surety. We also believe that if Lovejoy was a surety, the court erred in holding that he was released from such obligation. Therefore, believing, as we do, that the trial court erred in his findings of fact and his conclusions of law, and it appearing from this record that the case has been fully developed, it is our judgment that the cause should be reversed and rendered in favor of the appellant. It is so ordered.
      <§^For other cases 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


author: RASBURY, J.

text:
    BREWSTER v. CITY OF FORNEY.

    (No. 7750.)
    (Court of Civil Appeals of Texas. Dallas.
    May 5, 1917.
    Rehearing Denied June 23, 1917.)
    1. Eminent Domain <&wkey;112 — Taking for Public Use —Discharge of Sewage — In-' jury.
    Damages to land on a dry waterway from discharge from city’s septic sewer tank, operated under legislative authox-ity, wei’e not a taking, damaging, or destroying of property for a public use, required by Const, art. 1, § 17, to be adequately compensated, whei’e such dis-chai’ge did not constitute a nuisance, for in such case damages are damnum absque injuria.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 299, 300.]
    2. Municipal Corporations &wkey;>736 — Torts —Nuisance—Disposing of Sewage.
    A municipality is liable for its torts or creation of a nuisance in the constraction and operation of its sewage disposal plant, whether or not careless or negligent in such construction or maintenance, for such construction and maintenance are the discharge of duty of a purely coxpoi-ate character for the peculiar advantage of its own inhabitants, and not in the interest of the public at large.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §' 1552.]
    3. Appeal and Error <®r^216(6) — Objections Below — Review of Refusal of Requested Charges.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, as to objections and exceptions to charges, article 1972, providing that failure to object and except to a charge is i-egarded as its appi’oval, and article 1973, permitting requests of special charges coiTecting, amplifying, or extending the charge given, etc., appellant’s failure to except to a charge for appellee does not preclude consideration of his exceptions and objections to l-efusal of his requested charge on the same issue; the right of a litigant to cure omissions, defects, or to group facts constituting a given defense by special charges not being taken away by these statutes.
    4. Nuisance &wkey;>54 — Instruction — Definition of “Nuisance,.”
    ■ An instruction defining a nuisance as “the use of one’s property for the conducting of one’s own business in such, an unreasonable maimer as will, under all the circumstances, unfairly cause real or material damage to another,” is not incorrect, since it does in a genei-al way contain the legal elements of a nuisance.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 130.
    For other definitions, see Words and Phrases, First and Second Seines, Nuisance.]
    5. Trial <&wkey; 191(5)— Instructions —Assuming Facts — Nuisance.
    In action against city for damages from discharge from city’s septic sewer tank, plaintiff’s requested charge that if the city so operated its sewage plant as to pollute the ci’eek into which it emptied, and to cause the sewage water to collect in holes and ponds around and about plaintiff’s residence, generating and emitting foul gases and noxious odors, congregating lai’ge volumes of flies and mosquitoes about plaintiffs home, causing plaintiff and his family loss of time, illness, discomfort, and nonenjoyment of his home, it would be guilty of maintaining a nuisance and liable to plaintiff for all damages resulting thei’efrom to his' property or due to the illness of his family or discomfort in the use of his home, was propex’ly refused, since it; did not attempt to define a nuisance, but recited facts which were declared in law to constitute a nuisance, for which defendant would be liable in damages, and, in assuming their existence, it was upon the weight of evidence and misleading, and by adopting plaintiff’s theory it withdrew from the jury the determination of the credibility of witnesses and weight to be given the testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 428.]
    6. Evidence <&wkey;553(2) — Expert Testimony-Hypothetical Question.
    In such action the court properly excluded answer of an expert witness for plaintiff to question neither showing the extent or quantity of sewage accumulations, nor stating its condition when it reached plaintiff’s residence, whether raw or diluted sewage, but merely asking whether the malodors, flies, and mosquitoes resulting from the condition would sicken plaintiff’s family.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2370.]
    7. Appeal and Eeeoe &wkey;>1058(2) — Harmless Error.
    Appellant could not urge error in excluding his expert witness’ answer to a certain question where such witness was allowed to testify to substantially the same facts.
    [Ed. Note. — Ebr other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4201.]
    8.-Trial <&wkey;352(5) — Requested Special Issues — Assuming Facts.
    In action against city for damages from discharge from city’s septic sewer tank, a requested special issue, “Did the filth, stagnant water, offensive odors, noxious gases, mosquitoes and flies, any or all of these causes coming from the branch as the result of defendant’s sewage emptying therein and flowing down, in, and around plaintiff’s residence, cause him or any of his children to become sick or lose their health,” was properly refused, because it assumed the existence in and around plaintiff’s residence of filth, offensive odors, etc., as the result .of the operation of defendant’s plant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 841.]
    9. Trial <&wkey;351(5) — Requested Special Issues — Covered by Other Special Issues.
    A requested special issue is properly refused where issue therein is submitted to the jury in other issues in nearly identical language and favorably to the requesting party.
    [Ed. Note. — For other cases, see Trial, Cent: Dig. § 834.]
    10. Appeal and Error <&wkey;1062(l) — Harmless Error.
    In action against city for damages from city’s septic sewer tank, the court’s inquiry of the jury whether the city h'ad any notice of damage about to be done plaintiff from its plant, to which the jury answered, “No,” did not appear prejudicial to plaintiff as impressing the jury that such notice was necessary to his recovery where the jury found plaintiff was damaged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by A. D. Brewster against the City of Forney. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Bond & Bond, of Terrell, and Woods & Morrow, of Kaufman, for appellant. Dee R. Stroud and Wynne & Wynne, all of Kaufman, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellant sued appellee for damages in the sum of $16,000. It was alleged by appropriate pleading that appellee constructed, for the use and convenience of its citizens, a sewage disposal system, by which the city sewage was carried in pipes to a septic tank built upon the bank of a dry waterway, known as Mustang branch or creek, from whence the discharge from said septic tank, described as water, slush, and filth, flowed down the channel of the branch to plaintiff’s homestead, a distance of about 1,400 yards, and collected in holes and pools within 140 or 160 feet of appellant’s residence and servant’s house, creating noxious and offensive odors and generating, flies and mosquitoes. As the result thereof it was further alleged that the use of appellant’s home was rendered intolerable and his lands permanently damaged, and during the years 1913 and 1914 appellant and his family were afflicted with continuous and serious bodily illnesses, subjecting appellant to great ex-pénse for medical care and treatment for himself and family. Damages in the sum of $8,000 to his home and land were sought, and a similar sum for the illness and expense caused him and family.

Appellee, in addition to generally and specifically denying appellant’s allegations of fact, alleged affirmatively that all matter deposited in its septic tank, before being discharged therefrom, was subjected to a process that removed all solids and reduced it to practically clear water which lost all odor within 100 feet of its discharge and destroyed, instead of breeding, the insects complained of. Further, that the conditions at appellant’s homestead were the result of filth' engendered by the condition of appellant’s house and hog lots and other animal inclosures on his premises, superinduced by the fact that said creek at appellant’s premises is flat and marshy and filled with rank vegetation, constantly rotting therein. There were other pleadings raising issues of law not necessary to recite. Testimony is found in the record tending to support the allegations of the pleadings of the respective parties.

The case was submitted to a jury upon special issues, their findings, stated in narrative form, being these: Appellee’s sewage plant was selected with due care and properly constructed and the discharge therefrom was into Mustang creek, a natural water course running through appellee city. Water or sewage from appellee’s disposal plant, due in part to its operation, did collect and stand in holes and ponds in Mustang branch near appellant’s home, causing offensive, but not poisonous, odors, and to such extent made the place undesirable as a home. Such condition did generate mosquitoes and draw flies to appellant’s residence, but to what extent the jury could not determine. Forty per cent, of the sewage and refuse from ap-pellee city would have entered the creek above appellant’s premises whether there was a disposal plant or not. The condition in and about appellant’s house did not cause the illness in his family, and he lost no time on that account. The condition of his own premises may have caused the illness in his family. The present fair market value of appellant’s land with appellee’s disposal plant constructed and operated as it is is $135 per acre. Without the plant as constructed and operated it would be $145 per acre. In answer to the question as to whether the plant as operated is a nuisance the jury replied, “We believe not.” Both appellant and appellee presented' motions for judgment upon the findings of the jury, after considering which the court entered judgment for appellee. Erom such judgment this appeal is taken.

Under authority of the first assignment, which challenges the action of the court in overruling appellant’s motion for judgment, it is contended that in view of the finding of the jury that appellant’s land was damaged $1,750, such action of the court was the taking, damaging, or destroying of appellant’s property for public use without adequate compensation in violation of the Constitution. Article 1, § 17. The position of counsel, based qn the foregoing contention and gathered from the discussion, is that whenever it appears that damages have resulted to property, as found by the jury in the present case, compensation follows, as a matter of course, and that the lower court should have entered judgment for appellant on the jury’s findings in that respect. The counter contention of counsel for appellee is that concurrent with the damage it must also appear as a fact that the use constitutes a common-law nuisance; and the jury having found that the use of the creek by appellee did not constitute a nuisance, the damage was damnum absque in juña. In what was said to be a ease of first impression in this state it was declared that in the absence of constitutional restrictions a legislative grant would legalize all acts done in strict pursuance thereof, and any damage in consequence would be, as urged in this case, damnum absque injuria. Gainesville, Henrietta N. W. Ry. Co. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42. An application of that rule in this case would be,, that if appellee, in the exercise of the authority granted by the Legislature to construct and operate a sewage disposal plant, had strictly pursued that authority, any resulting damage to the citizen would not be actionable. But in the case cited the court .further declares that the insertion in our Constitution of the words, “damaged, or destroyed,” forbids the application of the rule stated and bestows upon the citizen, injured in the construction or operation of a public work, that remedy he would have against the individual who similarly injures -his property. The only distinction is in the remedy; since if the use is private the condition may be abated, while if public, the injury is to be compensated in damages. The court further declares that such being the rule the inquiry is whether the acts complained of, being the manner of the operation of railroad trains adjacent to the suit- or’s residence, is a nuisance. A similar holding was had in Sherman Gas & Electric Oo. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237, where it was said that in order to justify a recovery in such cases the complaining party is required to prove such facts as will constitute a nuisance, and that the standard on the issues of nuisance is a showing “that the conditions caused by the operation of the plant were such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits.” It was -also said, “if there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the property.” As we have recited in the present case, the jury found that the use of the branch by appellee was not a nuisance; and unless it was, applying the holding of the court of last resort in its construction of the constitutional provision invoked by appellant, damages for diminution in the value of appellant’s property cannot be recovered. The case last cited clearly contemplates that there may in some instances be an element of damages without the existence of a nuisance, which are dam-num absque injuria. In consequence of which, coupled with the finding of the jury on the controlling fact of nuisance vel non, we conclude the court did not err in refusing to enter judgment for appellant for the damage to his land.

Appellee further contends on the issue we are discussing that conceding the condition complained of to be a nuisance, the city would only be liable when it was made to appear that the condition was the result of carelessness and negligence in the construction and operation of its plant because done exclusively in the public interest. To sustain the proposition appellee relies on City of Ft. Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753. In that ease the city authorities located and established a “burial” place for dead animals, garbage, excrement, etc., found in the city, and provided by ordinance that such refuse should be buried in ditches four to six feet deep. Such acts were held to be done exclusively in the interest of the public because it improved the sanitary condition, in which case the city would not be liable merely because it maintained the burial ground there, but only for its negligence in maintaining it. 74 Tex. 404, 12 S. W. 52, 15 Am. St. Rep. 840. Conceding that the case sustains the rule invoked by appellee, yet it occurs to us that it is without controlling force in the present case. We do not understand that it is claimed in the instant case that the construction and operation of a sewage disposal plant is per se a nuisance, but that the discharge therefrom, by reason of its accumulation in and about appellant’s premises, creates a nuisance. Further, if it can be said that the rule announced in that case has the application claimed by appellee to the facts in that case, that is that a municipality may, in the public interest, create a nuisance and be liable for the consequences in the event only that it acts carelessly and negligently in the operation of the machinery which creates the nuisance, it appears that rule has been departed from. In White v. San Antonio, 94 Tex. 313, 60 S. W. 426, and Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909, it was said that a municipal corporation acts in a two-fold capacity, certain functions being conferred upon it “in the interest of the public at large, and certain others for the peculiar advantage of its own inhabitants.” If its officers act unlawfully in the administration, of the former the corporation as a rule is not responsible, “but for their torts in discharging duties of a purely corporate character the corporation is liable.” Such purely corporate acts are declared, among other things, to be “the supply of water and of light, the construction .and maintenance of sewers and wharves.” Also it was said in Texas & Pacific Ry. Co. v. Edrington, 100 Tex. 496, 101 S. W. 441, 9 L. R. A. (N. S.) 988, that under article 1, § 17, of the Constitution,- “our courts have uniformly held that neither the necessity for the structure nor the manner in which it was used constitute a defense to a claim by the owner for compensation for depreciation in the value of his property.” See, also, City of Denver v. Davis, 37 Colo. 370, 86 Pac. 1027, 6 D. R. A. (N. S.) 1013, 119 Am. St. Rep. 293, 11 Ann. Cas. 187, for a thorough and illuminating discussion of the rule. Accordingly, we conclude that the construction and operation of the sewage disposal plant by appellee was done in its corporate character for the peculiar advantage of its own inhabitants, and would be liable for its torts in that respect, as distinguished from its acts done in the interest of the public at large.

The next issue presented is the action of the court in refusing a special charge requested by appellant. Before the ease was submitted to the jury both parties tendered the court special charges defining a nuisance. The court allowed the charge tendered by appellee and refused the one tendered by appellant. Appellant objected and excepted to the action of the court in refusing to allow the special charge tendered by him, but did not so object and except to the action of the court in allowing the charge tendered by appellee. The record so standing, appellee objects in limine to any consideration by this court of the action of the trial court in refusing appellant’s charge, on the ground that such action may not be reviewed in the absence of an objection to the allowance of ap-pellee’s charge. It is now, we believe, the uniform holding of all Courts of Civil Appeals that the action of the trial court in giving its main charge or in the giving or refusing of special charges may not be reviewed on appeal unless objected and excepted to in the statutory manner. This is so of course-because the statutes declare that in the absence of such objections and exceptions such action is considered approved. This rule has been so often declared we will not be expected to cite the statutes or the cases. By the statutes and their construction appellant is denied the right here to complain of the action of the court in giving the charge requested by appellee. He, in fact, does not complain of such action. He does, however, complain of the action of the court in refusing his special charge. Appellee, however, in effect, argues that it was necessary for the appellant to object and except to the allowance of the charge given at appellee’s request, in order for appellant to secure consideration of his objections and exceptions to the action of the court in refusing the charge he requested, on the ground that both charges presented the same issue. We believe such a construction is not contemplated or authorized by the several statutes controlling the matter. While article 1971, Yernon’s iSayles’ Civil Statutes, requires the prescribed objections and exceptions to be taken to the charges given by the court, and while article 1972, Id., provides that failure to so object and except shall be regarded as approval of the charge so given, yet article 1973, Id., permits litigants as of yore to request special charges correcting, amplifying, or extending the charge actually given or to cure any supposed omissions or defects or to group the facts constituting a given defense, providing the refusal to give such special charge is objected and excepted to as prescribed. The very reason urged by appellant for- giving the charge is that the one actually given by the court was insufficient, because lacking in explanation of the appellant’s legal rights, which is but saying that it was insufficient or omitted essential ingredients. As we have said, it always has been the right of a litigant to cure omissions, defects, or to group facts constituting a given defense by special charges, and that under the articles cited that right remains inviolate, we think clear. That being true, it obviously follows that the objections and exceptions should be taken to the action of the court in refusing that which cured the defect or omission rather than to that which as far as it went correctly stated the rule.

Such being our views concerning the procedure to be observed in such cases, we are brought to a consideration of the charge requested by appellant and refused by the court. Without deciding that precise issue it can- be said that the charge requested by appellee and allowed by the court defining a nuisance is not incorrect, because it does in a general way contain the legal elements of a nuisance. Gose v. Coryell, 59 Tex. Civ. App. 504, 126 S. W. 1164. In the case cited it is said in substance, in approval of the rule stated by Qyc., that the reasonableness or unreasonableness of the use of property for a given purpose in a particular locality and in the manner and under the circumstances of ,the case is a fair test of whether such use constitutes a nuisance. The trial court followed that rule when it adopted appellee’s charge defining a nuisance as “the use of one’s property for the conducting of one’s own business in such an unreasonable manner, as will under all the circumstances unfairly cause real or material damage to another.” Thus, it will be seen, having, as we have, reached the conclusion that it was not necessary for appellee to do more than object and except to the action of the court in refusing his special charge, that the question is, Should the court, as urged by appellant, have allowed the requested charge in amplification of the one given?

The effect of the charge refused by the court was to tell the jury if appellee so operated its sewage plant as to pollute the creek into which it emptied and to cause the sewage water to collect in holes and ponds around and about appellant’s residence, generating and emitting foul gases and noxious odors, congregating large volumes of flies and mosquitoes about appellant’s home, causing appellant and his family loss of time, illness, discomfort, and nonenjoyment of his home, it would be guilty of maintaining a nuisance and liable to the injured party for all damages resulting therefrom to his property or due to the illness of his family or discomfort in the use of his home.

The foregoing fairly and fully presents the ■substance of the charge requested by appellant as defining a nuisance and which appellant contends should have been given in amplification of the court’s charge urged to be insufficient. We feel constrained to hold that the charge was properly refused. It does not attempt to define a nuisance, but recites facts which are declared in law to constitute a nuisance and for the. existence of which the guilty party would be liable in damages. A® applied to the present case it assumes their ■existence against appellee, and for that reason is upon the weight of the evidence and misleading. It recites in so many words the pleading of appellant, and, while the evidence of appellant, as we have said, tended to support the pleading, the charge in effect adopts appellant’s theory and withdraws from the jury the determination of the credibility of the witnesses and the weight to be given'to the testimony. We do not mean to say that trial ■courts may not enumerate or group facts upon which the jury may, if they believe the testimony establishes them, return a verdict. The charge under consideration does not, we believe, meet that rule, since it entirely fails to ¿advise the jury that they must find the existence of the facts so enumerated from the evidence. On the contrary, it states the facts and declares that they constitute a nuisance for which a person responsible therefor is liable at law in damages. The allowance of the charge would obviously, we believe, have misled the jury. We accordingly conclude that the charge was not fairly an amplification of the court’s definition of a nuisance, and an incorrect enumeration or grouping of the facts constituting appellant’s cause of action.

The court’s action in excluding certain expert testimony is next challenged. Appellant, prior to trial, secured the deposition of Dr. W. W. Samuel. Upon trial direct interrogatory No. 5 was offered in evidence, reading as follows:

“Now, Doctor, I will ask you to please state whether or not the condition of the creek or branch as a result of the sewage complained of flowing into said creek and producing the condition as above detailed with reference to bad odors, flies, and mosquitoes, and such filth accumulating in said cxeek within 132 feet, of plaintiff’s residence where he and his above-named children reside, would that or not likely produce or cause the trouble-that either or ail of the aforesaid children could be the cause of the affliction or trouble or conditions that you found them in when you operated upon them?”

To this interrogatory the witness answered :

“I would say that sore throat and tonsilitis are the most frequent diseases caused by these sewer gases and infections, and that they would also be liable to have a number of other diseases, such as typhoid fever, and in fact almost any disease that the people who had been to the toilets which drained into the waters were affected with.”

The answer was excluded, on the ground, as appears from the bill of exceptions, that it was leading, that the facts stated in the question were not a sufficient hypothesis on which to elicit the ox>inion of the witness, and not supported by the facts proven in the case. We think the interrogatory was not objectionable because leading, but it does appear that it lacked a sufficient hypothesis. The substance of the question is .that the witness is asked to state whether in his opinion the condition resulting from the sewage flowing into the creek and accumulating within 132 feet of appellant’s residence and creating bad odors would cause the illness to aiopellant’s children for which the witness treated them. The condition to which the examiner refers, that is, the facts constituting the condition, is not included in the question. It may have been stated in other interrogatories, but if so it does not appear from that portion of the deposition contained in the statement of facts. That portion of the direct testimony contained in the statement of the facts does not disclose any question of the kind, and much of the deposition seems to have been excluded. The general rule is that a given hypothetical question should fairly state such facts as the proof of the litigant submitting the question fairly tends to establish and fairly presents his claim or theory. Jones, Ev. § 371. 'The question did not show tlie extent or quantity of the sewage accumulations, did not state its condition when it reached appellant’s residence, whether raw or diluted sewage, but merely asked the witness whether the malodors, flies, and mosquitoes resulting from the condition would sicken appellant’s family.

Further, if it can be said that there was error in the exclusion of the witness’ answer, it appears that he was permitted to testify to identically the same facts, as appears from the following evidence:

“Can you say as a fact. Doctor, that a creek slightly polluted with ordinary city sewage will produce any kind of sickness where the water is not used for any purpose?” “I can state as a fact that any one exposed to conditions such as you mention will in all probability become sick. I would say that sore throats and tonsilitis are the most frequent diseases caused by these sewer gases and infections, and that they would also be liable to have a number of other diseases, such as typhoid fever, and, in fact, almost any disease that the people who had been to the toilets which drained into the sewers were infected with.”

We conclude the court did not err in the respect stated.

One of the special issues submitted to the jury was this:

“Did the construction and operation of the sewage disposal plant by the city of Forney cause any of the sickness in plaintiff’s family? If, so, specify what sickness was so caused.” The answer was, “No.”

In lieu of such special issue appellant requested the following:

“Did the filth, stagnant water, offensive odors, noxious gases, mosquitoes and flies, any or ali of these causes coming from the branch as the result of defendant’s sewage emptying therein and flowing down, in, and around plaintiff’s residence cause him or any of his children to become sick or lose their health?”

It is urged that the issue submitted by the court did not contain a sufficient explanation of the ground upon which appellant sought a recovery, while the refused charge did. First, it may be said that the issue tendered by appellant was incorrect, because it assumed that filth, stagnant water, offensive odors, noxious gases, mosquitoes and flies did, as the result of the operation of appel-lee’s plant, exist in and around appellant’s residence. Secondly, the issue of whether the discharge from the plant collected in and around appellant’s residence was submitted to the jury in nearly identical language with that contained in the refused charge in the first, second, and third issue and answered, with certain limitations, favorably to appellant. As a consequence it appears that the jury had well in mind the issue tendered by the charge given by the court, that is, whether the existence of the conditions found by them in answer to first, second, and third issues caused illness in appellant’s family. For the foregoing reasons, we conclude the court did not err in the respect urged. It is further urged that the findings of the jury are so contradictory a proper judgment cannot be entered thereon. This contention is based upon the finding of the jury in favor of appellant that partly due to the operation of the sewage disposal plant the discharge therefrom did collect in holes in proximity to appellant’s residence and emit offensive odors, and to such extent did render his residence undesirable, and as a result of all of which his property was damaged $1,750, notwithstanding which the condition complained of did not constitute a nuisancb. Under the rule announced by the Supreme Court and by which we are of course bound, such findings are not in legal contemplation contradictory. As we have indicated at another place the effect of the holding in Sherman Gas & Electric Co. v. Belden, supra, is that damages' may result, but not be recoverable, unless the condition which produces it is in law a nuisance. The jury in the present case seems very clearly to have understood the issue and to have believed that while appellant was damaged the appellee had not so used its property as to create a nuisance. It does seem to us that the situation creates a Jiardship upon appellant, but that the jury’s finding precludes a reversal by this court on that issue.

It is also earnestly contended that the jury’s finding that the conditions complained of were not a nuisance is wholly unsupported by the evidence, and that we should overrule their conclusions in that particular. Wo have considered the evidence on this issue. To set it out here would subserve no useful purpose, since it is alone our judgment on that evidence that is invoked, and we think it reasonably clear that the evidence is sufficient to sustain the finding. It is probable that in many cases appellate courts would reach a conclusion upon testimony different from that reached by juries, if we had the authority to substitute our judgment for that of the jury, as we are constantly urged to do, but the Legislature has placed that prerogative with the. jury, and we cannot say that it has not wisely done so.

The trial court inquired of the jury whether appellee had any notice of any damage about to be done to appellant from its plant,- to which the jury answered, “No.” Appellant complains of such issue as tending to impress upon the jury that notice was necessary in order to enable appellant to recover. While we are unable to see the reason for submitting such issue, at the same time it appears that it did not have any controlling influence on the jury, since it in fact found that appellant was damaged, and it could not have had any controlling force on the issue of nuisance vel non.

We feel for the reasons stated that no reversible error was committed on the trial of this case, and that as a consequence it becomes our duty to affirm the judgment.
      cfcaFor other eases see same topic ana 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


author: BUCK, J.

text:
    COOKE v. ELLIS.
    (No. 8611.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 28, 1917.
    Rehearing Denied June 2, 1917.)
    1. Action <&wkey;47 — Nature — Contract ob Tort — Money Received.
    A petition by ’a tenant against his landlord’s grantee, alleging plaintiff’s right, under contract, to two-thirds of the crop, and that at defendant’s request plaintiff consented that the crop should be used as pasturage, and that defendant collected the sum of $516.10, and that the defendant is now indebted to plaintiff .for two-thirds thereof which defendant though often requested so to do, has failed and refused to pay plaintiff, was not objectionable as an attempt to set up two inconsistent and separate causes of action, one an action ex delicto, and the other an action ex contractu, but it states a cause of action for money had and received, with implied promise to pay.
    [Ed. Note. — For cither cases, see Action, Cent. Dig. §§ 469, 470, 472-489.]
    2. Dandlobd and Tenant <&wkey;332 — Right of Purchases — Possession by Vendor’s Tenant — Evidence—Admissibility.
    In an action by a tenant under a lease for ong year to recover, from one purchasing from his landlord, for money received by the purchaser for pasturage, evidence that tenant had a verbal contract with the former landlord, whereby he was to receive two-thirds of everything raised on the place, was admissible, and not subject to the objection that it was with reference to a contract between plaintiff and another not a party to this suit; since the rental contract testified about was for the year only, and therefore was one that might lie in parol, and since a purchaser of land must take notice of the character of title held by one in open, visible, and unequivocal possession.
    [Ed. Note. — For other cases, see Dandlord and Tenant, Cent. Dig. §§ 1363, 1400.]

    3. Landlord and Tenant <&wkey;332 — Rights of Tenant as Against Landlord's Grantee-Evidence.
    In an action by a tenant for one year against his landlord’s grantee for money received by defendant for pasturage, in order to establish plaintiff’s right to two-thirds of the Johnson grass grown, after crops had been cut and the harvesting had.been abandoned, it was incumbent on him to establish that he was so entitled under his contract with his former landlords.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1363, 1400.]
    4. Customs and Usages <&wkey;19(2) — Oral Lease — Admissibility of Evidence. '
    Evidence that it was the custom for the tenant to get the Johnson grass on a place after cutting off his crop was not admissible, in the absence of pleading .to that effect, since the custom asserted was not intended to be represented as one of universal application, but a special local custom, and the term “crops” is not to be so interpreted as to embrace the Johnson grass on that part of the rented premises not planted by plaintiff.
    [Ed. Note.- — For other cases, see Customs and Usages, Cent. Dig. §§ 42, 43, 45.]
    5. Landlord and Tenant <&wkey;332 — Lease-Jury Question.
    Evidence held to justify a jury finding that plaintiff was to receive only his proportion of the crops grown, and that he would not be permitted to, delay his surrender of the premises in order to cut or otherwise utilize the Johnson grass growing on the stubble land.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1363, 1400.]
    6.Landlord and Tenant- c&wkey;332 — Oral Lease — Instructions.
    As the pleadings did not charge a wrongful appropriation of the crop, or an appropriation thereof without the consent of the plaintiff, but that the defendant collected the money for the pasturage with the plaintiff’s consent, and that thereby there arose an implied promise on defendant’s part to pay plaintiff. his proportion thereof, the giving of an instruction that, “if you also find that the defendant, without the consent of the ‘'plaintiff, appropriated said crop to his own use and benefit, then, and in that event, you will find for the plaintiff for two-thirds of the usual market value, if any, of the crop at the time it was so appropriated,” was error.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1363, 1400.]
    Buck, J., dissenting in part.
    Error from Tarrant County Court; Chas. T. Prewitt, Judge.
    Suit by A. L. Ellis against W. L. Cooke. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for plaintiff'in error. Wm. R. Booth, of Ft. Worth, for defendant in error.
   BUCK, J.

During 1915 A. L. Ellis was the tenant on the farm of Chas. Leuschner and wife, said farm being situated north of Ft. Worth and in the vicinity of the town of Saginaw. Ellis was cultivating the farm on shares, and the cultivated land was planted in wheat and oats. In June, 1915, Leuschner and wife sold the farm to W. L. Cooke; the sale being made through J. G. Wilhoit as agent. Before the trade was made Cooke inquired of Leuschner, and perhaps Wilhoit, whether he could depend on Ellis’ giving possession at once. Leuschner testified that:

“Mr. Ellis agreed with me to surrender immediate possession of the farm in the event I sold the place. * * * I told Mi-. Ellis that I was on a trade to trade the farm off — told him I had a chance to trade it off, and, if Mr. Cooke wanted possession of it, would he give him possession, and Mr. Ellis said, T won’t stand in your way at all, I never did stand in your way.’ * * * I told Mr. Cooke that Ellis had agreed to give immediate possession.”

Ellis testified:

“I never sai^r Mr. Cooke, and never spoke to him until after he had made the trade for the farm, and came out to the place. * * * I stated to Mr. Cooke on that occasion that I would give him. possession after the crop came off. He asked me what the contract was with Leuschner, and when I was to give possession, and I told him ‘After the crop came off.’ ”

Shortly after Cooke purchased the property, he went out to see it, and on that trip met Ellis and had a conversation with him concerning the giving of possession by Ellis, testified to in the quotation hereinabove. At that time there was standing in the field some wheat, the stand being very thin, and a conversation occurred between Cooke and Ellis as to what use it should be put to. Cooke decided that he would pasture some government mules on it, and later secured the mules and pastured them on the wheat stubble and grass, and received for said pasturage some $516.10. On August 19, 1916, Ellis filed suit against Cooke for two-thirds of the amount received for the pasturage of the mules, alleging:

That plaintiff, by virtue of his contract with the owner of the premises, was entitled to two-thirds of “the wheat, oats, and grass crop grown on said premises as his compensation for raising the same”; that in June, 1912, the defendant purchased the premises from the plaintiff’s landlord, “and at the time of said purchase the defendant knew, or by ordinary diligence could and would have known, of the interest which plaintiff had in said wheat crop; that plaintiff had the hands all paid for, and had all arrangements made to gather said crop, when the defendant put in his appearance on said farm and represented to plaintiff that both parties could realize more money out of said crop by pasturing the same than by harvesting it, and at the special instance and request of the defendant plaintiff consented that said crop should be pastured; that at the special instance and request of the defendant the plaintiff looked after the cattle placed in said pasture, and drew water for them and attended to them throughout the pasture season, which ended on, to wit, the 4th day of August, 1915, and for which the defendant collected the sum of $516.10, and that the defendant is now indebted to plaintiff two-thirds of said $516.10, which equals $344.05; that the defendant, though often requested so to do, has failed and refused, and still fails and refuses, to pay the plaintiff said $344.05, oi\to make settlement with plaintiff for two-thirds of said crop.”

Defendant demurred generally and specially to plaintiff’s petition, and further pleaded that plaintiff had agreed to surrender immediate possession of said premises to defendant, otherwise defendant would not have purchased the property, and denied that defendant' and plaintiff had any agreement or understanding to the effect that plaintiff was to receive two-thirds, or any other portion, of the money paid for pasturage, or that plaintiff had looked after the. stock while in the pasture, or that defendant had requested him so to do.

The cause was submitted to the jury under a general charge, and a verdict returned for plaintiff for $344.06, less $25 deducted as plaintiff’s part of the expenses incurred in order to make the fences stock-proof, etc. Prom this judgment the defendant has prosecuted a writ of error.

Plaintiff in error’s first and second assignments are directed to the action of the court in overruling exceptions to plaintiff’s petition. It is asserted that the petition fails to set up a cause of action, either for conversion or trespass, or an action upon a contract; but the petition is an attempt to set up two inconsistent and separate causes of action, one an action ex delicto, and the other an action ex contractu. While the petition is not so full or definite in its terms as it might be, yet we are of the opinion that it is not subject to a general demurrer, or to the special exceptions urged. Evidently there was no intention to charge a trespass, or a conversion of the crops growing on the land. It is evident from the pleadings that defendant entered upon the premises and placed thereon the live stock with the full consent of plaintiff. Nor is there any purpose evidenced in the pleadings to charge that defendant collected the money for their pasturage without the consent of plaintiff. The suit is rather for money had and received by the defendant, with an implied promise to pay the plaintiff his claimed proportion. Pearce et al. v. Dyess et al., 45 Tex. Civ. App. 406, 101 S.W. 549, 550.

Under the third assignment, objection is made to the admission by the court of the testimony of plaintiff, to the effect that he had a verbal contract with Mrs. Leuschner whereby he was to receive two-thirds of everything raised on the place; the objection being that said testimony is with reference to a contract between plaintiff and another not a party to this suit, and that the testimony is therefore irrelevant and immaterial. Since the rental contract testified about was for the year only, and therefore was one that might lie in parol, and since it constituted the basis of plaintiff’s right of possession of the premises, we think the evidence was admissible. A purchaser of land must take notice of the character of title held by one in open, visible, and unequivocal possession. Glendenning et al. v. Bell, 70 Tex. 632, 8 S. W. 324; Paris Grocer Co. v. Burks, 101 Tex. 106, 105 S. W. 174; Tolar v. Development Co., 153 S. W. 911. The assignment is overruled.

The fourth assignment charges error in the trial court’s permitting the plaintiff to testify that:

“It was the custom for the tenant to get the Johnson grass on a place after cutting off his crop, for the reason that there was no pleading of any custom, there was nothing in the pleading that would charge the defendant with notice of a custom,” etc.

The evidence of plaintiff himself strongly tends to show that, after cutting one or two swaths through his wheat, he concluded that the stand was too thin to justify the harvesting, and that he abandoned the idea of harvesting it before the defendant put the mules on the place. The plaintiff agreed that he told Lehschner and defendant both that he would surrender possession of the premises as soon as his crop “came off.” But plaintiff claimed that the Johnson grass growing on the stubble land where the oats had been cut, as well as that growing on the wheat land, which had not been cut, constituted a “part of the crop,” in which he had a two-thirds interest. In order to establish his right to two-thirds of the Johnson grass grown after the oats had been cut and the harvesting of the wheat had been abandoned, it was incumbent on him to establish that lie was so entitled under tlie contract with the Leuschners. He testified that he told Cooke:

“That my contract with Leuschner was that I would get off as soon as my wheat and oats were cut. Johnson grass is always considered in the crop the pasture; of course I was to have the Johnson grass. I did not agree with Leuschner to get off as quick as I threshed my wheat and oats. I said, ‘As soon as my crop comes off— hay and all.’ * * * I- was a tenant on that farm during the year 1915, having rented it from Mrs. Leuschner under a verbal contract. I was to pay her one-third of the crop delivered on the cars, and she was to pay her one-third of the expenses; that is, the threshing expenses and any work done in making the crop. We did not have any agreement as to the kind of crop X should make. I sowed it in wheat and oats.”

It will be noted from the testimony quoted, as well as from other testimony of like character in the record, that there was a sharp controversy presented as to whether plaintiff was entitled, under his contract with the Leuschners, to two-thirds of the Johnson grass. In order to establish such asserted right plaintiff attempted to show the custom prevailing. The majority are of the opinion that, under the circumstances of this case, such testimony was not admissible, in the absence of pleading to that effect. While plaintiff pleaded that under said contract he was to have “two-thirds of the wheat, oats, and grass crop grown on said premises,” yet his testimony on the subject of the contract with the owner, of whom he rented, is:

“I was to pay her one-third of the crop delivered on the cars, and she was to pay her one-third of' the expenses; that is, the threshing expenses and any work done in making the crop. We did not have any agreement as to the kind of crop I should make. I sowed it in wheat and oats.”

Neither here nor elsewhere have we found evidence that “Johnson grass” was specifically mentioned in the rental contract. It seems evident from the whole testimony that ap-pellee’s claim to two-thirds of the Johnson grass rests upon the “custom” of which he testified, and not upon any specific terms of his rental contract as he states it. In such cases — i. e., when the plaintiff’s right of recovery rests upon a custom alone — we think it should be alleged. 12 Oyc. 1097, and notes. The' evidence shows that the farm in question was a Johnson grass farm, a part only of which was by appellee put in cultivation and sown in wheat and oats, and hence the word “crops” might be reasonably construed as including the Johnson grass growing up and harvested together with such grains; but in the absence of an allegation of ambiguity in the terms of the contract, or of a custom in the light of which it is to be so interpreted, we do not think the term “crops” is to be so interpreted as to embrace the Johnson grass on that part of the rented premises not planted by appellee. See Bou-vier’s Law Dictionary, title “Crop,” and Em-blements, and 1 Words and Phrases (2d Series) title “Crop,” p. 1158. The oats had been cut at the time of the purchase by defendant of the farm, and the allegations with reference to plaintiff’s interest in the wheat crop strongly tend to show that the pleader did not intend to assert any interest in the Johnson grass.

Under the evidence, in the absence of this testimony in regard to the custom, the jury might have reasonably concluded that the contract between the plaintiff and the Leuschners was that the plaintiff was to receive only his proportion of the oats and-wheat grown, and that he would not be permitted to delay his surrender of the premises in order to cut or otherwise utilize the Johnson grass growing up on the stubble land. It is a general rule that a special custom must be pleaded, while a general custom need not be pleaded, but may be given in evidence at the trial, or even judicially noticed by the court for the first time on appeal. Lawson on Usages and Customs (1881 Ed.) p. 124, § 64. Where a particular custom or a local usage is relied on, the same must be specially pleaded in order to authorize evidence to establish it. Ordinarily not only must the special custom be pleaded, but the allegation must be made that the party sought to be charged with its effect knew of its existence, though it is held in certain cases, where the party sought to be charged with the assumption of the custom was engaged in the particular business in which the custom is alleged to have prevailed, that the allegation as to his knowledge of such custom is not necessary. Id.

If the custom relied on by defendant in error in this case and sought to be established by his testimony was a general custom, so universal and notorious in its character that its existence was generally recognized by the public, and of which courts could properly take judicial cognizance, then neither proof nor allegation was necessary, and proof thereof admitted over abjection would not be error. But if such custom was confihed to a particular business or locality, and was not so notorious that persons purchasing or dealing in lands would be presumed, as a matter of law, to have so purchased and dealt with reference to such custom, then we think that both proof and allegation would have been necessary, and the evidence, in the absence of an appropriate allegation, was inadmissible. It is true that the defendant in error testified that it was “the custom of the country, if there is any Johnson grass comes up after you get the crop off, the tenant gets the grass”; yet the majority, at least, are of the opinion that, taking into consideration the limitation shown in the development of the qualification of the witness to testify upon the existence of the custom, and the connection in which the evidence was introduced, the custom asserted was not intended to be represented as one of universal application among farmers, but rather as to the particular locality where this farm was located ; and if such be the proper and justifiable construction, of which the writer has some doubt, the admission of this testimony, in the absence of appropriate pleading was error. Standard Paint Co. v. San Antonio Warehouse Co., 136 S. W. 1150, 1152; Anderson v. Rogge, 28 S. W. 106; Norwood v. Fire Ins. Co., 13 Tex. Civ. App. 475, 35 S. W. 717; Gano v. Palo Pinto Co., 71 Tex. 99, 8 S. W. 634; Brady v. Richey et al., 187 S. W. 508. The majority are of the opinion that this assignment should be sustained, and it is so ordered.

The writer is of the opinion that the cases of T. & P. Ry. Co. v. Coggin et al., 44 Tex. Civ. App. 423, 99 S. W. 1053, by this court, H. & T. C. Ry. Co. v. Hill, 60 Tex. Civ. App. 214, 128 S. W 445, by the Dallas Court of Appeals, and the Iowa case of Brody v. Chittenden, 106 Iowa, 524, 76 N. W. 1009, are authority for the admission of the testimony complained of. In the last-cited case it was held that it was admissible in the absence of pleading to show toy jewelers and dealers in jewelry, watches, etc., that a “Seth Thomas Regulator” would be included in the term “furniture and fixtures” pertaining to the' jewelry business. In' this case is cited Schaub v. Brewing Co., 80 Tex. 634, 16 S. W. 429. So far as the question here involved is concerned, the respective rights of the defendant in error and plaintiff in error de-. pend upon the contract had between defendant in error and his original landlord, Leuschner. And the same construction must be given to the contract and the same rules as to the admission of testimony must be applied as would be given and applied were the controversy in fact between Ellis and Leuschner, because Cooke assumed, by reason of his purchase of the land, the relation of landlord to Ellis, such relation being governed by the terms of the contract made between Ellis and Leuschner. Hence the writer is of the opinion that, even though it should toe contended that such original contract only provided that the tenant should receive two-thirds of the “crop” raised on the premises, evidence was admissible to show what was meant by the term “crop,” and that this evidence was admissible for the purpose of showing that within the term “crop” the Johnson grass raised on the land after the cultivated crops had been cut was included.

Under the seventh assignment plaintiff in error complains of the court’s submitting to the jury the following:

“If you also find that the defendant, without the consent of the plaintiff, appropriated said crop to his own use and benefit, then and in that event you will find for the plaintiff for two-thirds of the usual market value, if any, of the crop at the time it was so appropriated.”

We are of the opinion that the objection to the charge must be sustained. As we construe the pleadings, as before stated, they did not charge a wrongful appropriation of the crop, or an appropriation thereof without the consent of the plaintiff, but rather that the defendant collected the money for the pasturage with the plaintiff’s consent, and thereby there arose an implied promise on defendant’s part to pay plaintiff his proportion thereof. The same question in another form is raised under the eighth assignment, and we are of the opinion that the court erred in submitting the question of conversion of all under the pleading and proof.

For the reasons given, the judgment below is reversed, and the cause remanded.

BUCK, J., dissenting, as indicated.
      tgx=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes