author: FLY, C. J.

text:
    SANFORD v. JOHN FINNIGAN CO.

    (No. 5294.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 27, 1914.
    Rehearing Denied Oct. 7, 1914.)
    1. Appeal and Error (§ 751) — Exceptions— Assignments op Ereob.
    Where bills of exception with reference to rulings on evidence stated that the evidence was irrelevant and immaterial to any issue in the case, while assignments of error based on .such exceptions alleged that the evidence was irrelevant and immaterial, misleading, and confusing, and tended to create prejudice against ■defendants, the objections reviewed would be ■confined to those stated in the bills of exception.
    [Ed. Note. — For other cases, see Appeal and Eirror, Cent. Dig. §§ 3039-3042; Dec. Dig. § '751.]
    2. Appeal and Error (§ 1050) — Review— Rulings on Evidence — Prejudice.
    Where a witness was permitted without •objection to describe and swear to the contents •of a check, the admission of the check in evidence was not prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig.J 1050.]
    ■3. Evidence (§ 213) — Admissions — Letter oe Attorney— Oefee of Compromise.
    Prior to suit brought on a note executed 'by defendant jointly with his brother to cover the latter’s defalcation with plaintiff, defendant's attorneys wrote to plaintiff a letter, setting out certain reasons for defendant’s unwillingness to pay the note other than the reasons pleaded in defense at the trial. The letter throughout denied liability, but in the last sentence the writers stated that if plaintiff ■cared to discuss a compromise of the case, they would gladly talk the matter over. Defendant, ■on the letter being offered in evidence, insisted that it should not be without the last clause, whereupon the court admitted it ail. Held, that the letter as a whole was not objectionable -as an offer to negotiate a compromise.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]i
    •4. Trial (§' 85) — Reception of -Evidence— Objections.
    Where only portions of a writing are not proper evidence, an objection to the whole is unsustainable.
    [Ed. Note. — For other eases, see TriaL Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    5. Evidence (§ 213) — Writings—Offer of ■ Compromise.
    When any fact stated in an offer of compromise can be separated from the. offer and still convey the idea in the writer’s mind, it is admissible.
    [Ed: Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.]
    ■6. Evidence (§ 214) — Admissions—Offer of Compromise.
    In order to exclude distinct admissions of facts on the ground that they are offers of com.promise, it must appear that they were expressly made without prejudice, or at least under the faith of a pending treaty, and into which the party might have been led by the confidence ■of effecting a compromise.
    [Ed. Note. — For other cases, see Evidence, ■Cent. Dig. § 752; Dec. Dig. § 214.]
    '7. Bills and Notes (§ 537) — Illegality— ■ Criminal Prosecution.
    Evidence held to require submission to the jury as to whether a note sued on had been executed to prevent a criminal prosecution for defalcation against one of the parties.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by the John Finnigan Company against John R. Sanford and another. Judgment for plaintiff, and defendant Sanford appeals.
    Affirmed.
    Swearingen & Ward and McFarland & Lewright, all of San Antonio, for appellant. Webb & Goeth, of San Antonio, for appellee.

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

       writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit on a promissory note for $8,971.12, executed by appellant and W. M. Sanford, Jr., and payable to appellee. It was alleged that W. M. Sanford was absent from the state and insolvent, and therefore he was not sued by appellee. Appellant defended on the ground that the note was sued by appellant to cover amounts embezzled by W. M. Sanford, Jr., under threats that he would be indicted and prosecuted for embezzlement if the note was not given by appellant. The cause was submitted to the jury on special issues. Appellant admitted appel-lee’s cause of action, unless it was defeated by his plea of illegal consideration. Upon the answers of the jury, which found against appellant’s defense, judgment was rendered in favor of appellee for $9,505.32. The first five assignments of error complain of the admission in evidence of certain instruments in writing, and could not be sustained even if the admission of the evidence had been erroneous, because appellant testified in detail to every fact that was proved by the instruments. He testified as to the agreement between his brother, W. M. Sanfotfd, and Mar-bach and others, he testified to the contents of the deeds made to him by W. M. Sanford and wife, and as -to the contract with Max Mai. We are of opinion that the instruments were properly admitted, in connection with the testimony of appellant that “I was liquidating his indebtedness while he was to deed all his property to me,” as tending to show that appellant was secured by the property, which was conveyed to him partly to cover the debt sued on in this case. W. M. Sanford, Jr., sold all of his property to appellant to secure him for his assumption of the debts of the former, thereby rendering himself insolvent. Whatever effect the threat of prosecution may have had on appellant’s liability, it did not affect W. M. Sanford’s liability. He signed the note as evidencing a debt due by him for money taken by him from his employer, and when appellant took all his property, to be used in paying his brother’s debts, he became liable for those debts, and could be so held under proper pleadings.

In the third, fourth, and fifth assignments of error appellant gives as reasons for the inadmissibility of the evidence that it was irrelevant and immaterial, and that it was misleading and confusing, and tended to create a prejudice against appellant. In the bills of exception, upon which the assignments of error must rest, the only objection was that the evidence “was irrelevant and immaterial to any issue in this ease.” The objections will be confined to those set out in the bills of exception. Herndon v. Casiano, 7 Tex. 322; Kimmarle v. Railway, 76 Tex. 692, 12 S. W. 698.

How the admission of the Chech drawn by appellee through its agent, W. M. Sanford, for $5,000 could have injured appellant is not shown, nor attempted to be shown by appellant. In fact it could not in any way have been prejudicial to appellant. Max Mai, without objection, was permitted to describe and swear to the contents of the check.

The seventh assignment of error complains of the admission in evidence of a certain letter written by the attorneys of appellant, in which they set out reasons for appellant being unwilling to pay off and discharge the note. The letter was written just before this suit was filed. The objections to the letter were that it was irrelevant and immaterial, that it was written “for the purpose, and with the view of opening negotiations between plaintiff and defendant, having for its object a compromise and adjustment of the matters in suit in this case,” and that the evidence was prejudicial. The evidence was important, and doubtless had influence on the minds of the jury, in that it tended to show that at the time it was written different reasons for refusal to pay the debt were presented from those given at the trial of the cause. In the letter it was stated that appellant would not pay the note because appellee’s agent promised, as a consideration for its execution by appellant, that his brother should be retained in the service of appellee, and have his salary increased, while appellant swore that his reason for not paying the note was that it had been executed to prevent the threatened prosecution of his brother for embezzlement. Its undoubted force and effect on the verdict being conceded, the question of the admissibility of the letter in evidence becomes of vital importance. It is not contended by appellee that the whole of the letter was admissible, but that parts of it were, and it is contended that where a portion of a letter is proper testimony and the objection is made to the whole document, it is properly admitted in evidence. As before indicated, the most of the letter was taken up in stating certain facts upon which appellant based his refusal to pay the debt. There was nothing in the letter that indicated that a compromise would be acceptable until the last sentence was reached, in which was said:

“If, however, your people care to discuss a compromise of the case, we will gladly talk the matter over with you or your representative.”

The tone of the letter, except that last sentence, was belligerent and aggressive, and the offer of a compromise was a complete non sequitur to what had been written theretofore. In the line immediately preceding the offer to “talk over” the matter the letter stated:

“Feeling as he does, Mr. Sanford will resist payment of the note and we will represent him in the event a suit is brought upon the note.”

The letter was a declaration of war, followed by a request for an armistice. Without the last sentence the letter would undoubtedly have been admissible over the objections urged to it by appellant, and ap-pellee offered to eliminate that sentence, but appellant objected to its elimination, and insisted that if any part of the letter was admitted, the whole should go to the jury. Appellant is directly responsible for the objectionable sentence being placed in evidence, and if the other portions of the letter were admissible, he is in no position to complain of the admission of the objectionable sentence. But for his action, the jury would not have learned that there had been an offer to negotiate a compromise. There were no concessions made in the letter and .no admissions, but on the other hand the letter contained nothing but charges of bad faith upon the part of appellee’s agent, which if true showed the allegations of the answer to be false, and that appellant had shifted his plan of defense. If the letter stated facts it was admissible, no matter what motive may have prompted the declaration. Rice on Ev. p. 435; White v. Old Dom. Steamship Co., 102 N. Y. 660, 6 N. E. 289; Rose v. Rose, 112 Cal. 341, 44 Pac. 658.

Offers of compromise are of the nature of admissions and thereby to purchase peace, but in the letter in question no fact was admitted that could work to the detriment of appellant, but matters of defense were stated that had no connection with or pertinency to the offer to consider a compromise made in the last sentence. There was no offer to compromise proved by appellee, but all about the compromise went before the jury at the instance and request of appellant. There is nothing in the letter that indicates that the statements therein would not have been made except to bring about a compromise. It was merely a recitation of facts that appellant deemed sufficient to justify him in refusing to pay a promissory note executed by him, not as a surety, as is stated in the brief, but as a joint principal with his brother, who afterwards made over to him all the property owned by the former to secure this debt as well as others. The sentence which ends the letter does not contain an offer of compromise, but is merely an intimation that if ap-pellee would make an offer of compromise, “we will gladly talk the matter over with you or your representative.” There was not only no offer of compromise, but nothing in connection with a compromise was pending, and the matters stated in the letter were .grounds of defense which doubtless would have been stated had the last line of the letter been omitted.

We conclude that all of the letter was properly admissible except perhaps that portion of it mentioning a compromise, and appellant did not ask to have that portion excluded, but on the other hand insisted that it should be given to the jury. Where only portions of a writing are not proper evidence, an objection to the whole will not he sustained. The letter was objected to as a whole, and appellant insisted that the only part to which there could be objection should be admitted. Railway v. Gormley, 91 Tex. 401, 43 S. W. 877, 66 Am. St. Rep. 891; Campbell v. Supply Co. (Civ. App.) 133 S. W. 750; Hutcheson v. Massie (Civ. App.) 159 S. W. 315.

It is the rule that when any fact stated in an offer of compromise can be separated from the offer and still convey the idea in the writer’s mind, it is admissible in evidence. Railway v. Ragsdale, 67 Tex. 24, 2 S. W. 515. In the letter in question there was no' connection whatever between the last sentence and the other portions of it. The letter was more intelligible and more consistent without the last sentence.

Appellant swore that he did not authorize his attorneys to make an offer of compromise, and if it be true that they had no authority to write the letter, then it was no offer of compromise, and the objection to it on the ground that it was such offer was not well taken, if the rule stated by Chamber-layne in his work on Evidence, § 1462, be correct. He says:

“Where no negotiations are pending because they have 'been broken off or abandoned, and the discussion is being held about something else, th'e statement can only be taken to have been made because it is believed to be true, and is therefore receivable as an admission. Where the person by whom or to whom the offer is made is evidently one who has no authority to adjust the matter in dispute between the parties, the same result follows.”

The rule is sustained by some authority. Moore v. Gaus, 113 Mo. 98, 20 S. W. 975. The letter was not objected to on the ground that it was written without authority.

The rule as to offers of compromise'is tersely stated by Greenleaf in his work on Evidence, § 192:'

“That confidential overtures of pacification and any other offers or propositions between litigating parties, expressly stated to be made without prejudice, are excluded on grounds of public policy. But in order to exclude distinct admissions of facts, it must appear that they were expressly made without prejudice, or, at least, that they were made under the faith of a pending treaty, and into which the party might have been led by the confidence of a compromise taking place.”

In the letter there was no admission of any fact on account of any offer of compromise, but merely reasons given for á refusal to pay off the note.

It was, perhaps, the duty of the court to construe the letter and not leave the question of the intent of the letter to the jury, but it. may be well, in justice to the trial judge, to say that there is some authority for his action in submitting the matter to the jury for their determination. Chamberlayne Ev. § 1454. That author says:

“Should it appear doubtful as to whether a certain statement or offer is, on the one hand, a compromise offer or, on the other, an admission of the existence of an independent fact, the presiding judge is justified in leaving the whole matter to the jury under appropriate instructions.”

If it was error to submit the matter to the jury; it could not have damaged appellant.

The ninth assignment of error is overruled. There was evidence to the effect that the note was not given to shield W. M. Sanford from prosecution. Gallagher swore that appellant came to see him and told him about the amount his brother had misappropriated, and offered to pay a part of it in cash and give a note for the balance, that Mack had property, and that he was going to take it, “and work it out.” He said further:

“At the time the note was signed absolutely nothing was said in regard to criminal prosecution.”

He also stated:

“I heard the testimony of John R. Sanford relative to there being a criminal prosecution if the shortage in accounts was not settled quickly. No such conversation ever occurred between myself and John R. Sanford at any time.”

Appellant 'swore to matters in direct conflict with the testimony quoted which made an issue for the jury, to which they answered that the note was not signed because of threats to prosecute W. M. Sanford, Jr.

The judgment is affirmed.


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    SPAULDING v. SMITH.
    (No. 5300.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 22, 1914.
    Rehearing Denied Oct. 7, 1914.)
    1. Vendor and Purchaser (§ 349) — Contract — Vendor’s Breach — Petition — Description.
    Where a petition for a vendor’s breach of a contract for the sale of land alleged that plaintiff in writing, offered to buy from defendant the 251 acres of land which had been fully described in the petition, and there was no exception that the petition failed to set out the description contained in plaintiff’s written offer or to state how the offer was communicated to defendant, an exception that the petition was insufficient, because the contract, as alleged therein, did not sufficiently describe the land, so as to comply with the statute of frauds, was unsustainable.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. § 349.]
    2. Vendor and Purchaser (§ 349) — Contract — Vendor’s Breach — Petition.
    Where a petition for a vendor’s breach of a contract to sell land alleged that plaintiff telegraphed defendant that his proposition was accepted, and that $200 forfeit money had been placed in the bank, and a letter with contract would follow, but it was not alleged that plaintiff’s acceptance was subject to the terms of the contract, or that a contract was sent containing other terms than those agreed on, it would be presumed that the formal contract was to embrace only those terms, and the petition was not objectionable as showing that plaintiff’s acceptance was subject to the provisions of a contract to follow by mail.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dee. Dig. § 349.]
    3. Vendor and Purchaser (§ 351) — Contract — Breach—Damages.
    Where a vendee had contracted to resell land at a profit, the measure of his damage for the vendor’s breach of contract was not such profit, but the difference between the contract price and the market value of the land at the date of the breach.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dec. Dig. § 351.]
    4. Evidence (§ 460) — Relevancy—Letters.
    In an action for a vendor’s breach of contract, a letter written by defendant to plaintiff’s land company, stating that the land had been rented, etc., offered to identify the land in controversy as the property rented, and to show that it was the same and only property for which plaintiff and defendant subsequently contracted, but which added nothing to the description of the land as contained in other letters and telegrams which constituted the contract of sale, was irrelevant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.]
    5. Evidence (§ 177) — Best and Secondary Evidence — Telegrams.
    Where an original telegram was outside the jurisdiction of the court, a copy received by plaintiff and pleaded by him as a part of the contract sued on was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 557, 570-579; Dec. Dig. § 177.]
    6. Frauds, Statute of (§ 118) — Memorandum — Correspondence.
    The memorandum or writing evidencing a contract for the sale of land, required by- the statute of frauds, may be shown by correspondence.
    [Ed. Note. — For other'cases, see Frauds, Statute of, Cent. Dig. §§ 199, 262-265; Dec. Dig. § 118.]
    7.Frauds, Statute oe (§ 110) — Sale oe Land — Contract — Description — Parol Evidence.
    Where land was described in a contract of sale as defendant’s 250 acres, on which there was a new fence, windmill, and tank owned by the tenant, and it was shown by parol that the land described in plaintiff’s petition was the only land owned by defendant on which such improvements were located, the land was described with sufficient exactness to render its identity certain on the introduction of extrinsic evidence merely disclosing the condition of the parties at and immediately before making the contract, and the description was therefore sufficient to satisfy the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 225-236; Dec. Dig. § 110.]
    Appeal from District Court, Victoria County; John M. Green, Judge.
    Suit by J. W. Smith against J. W. Spauld-ing, for breach of contract for the sale of land. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Linebaugh & Crain, of Victoria, for appellant. Proctor, Vandenberge & Crain, of Victoria, for appellee.

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

   MOURSUND, J.

Appellee sued appellant for $1,875, alleged as the damages suffered by appellee by reason of the breach by appellant of a contract for the sale of certain land in Victoria county. It was alleged that the contract consisted of a letter from appellee to appellant, dated October 28, 1912, a night letter telegram from appellant to appellee, dated November 1, 1912, and a telegram from appellee to appellant, dated November 2, 1912, and that the contract was breached by telegram from appellant to appellee, dated November 2, 1912. Writ of attachment was prayed for, issued, and levied.

Appellant answered by general demurrer, special exceptions, a general denial, a special answer pleading the statute of frauds, allegations to the effect that appellee did not accept appellant’s offer but rejected same, and that, if there was a valid contract, appellee had, prior to the breach of same, contracted to sell the land to another at a profit of $511, and that such amount was all that appellee was entitled to recover. This last plea was stricken out upon exception of appellee.

The trial before the court resulted in a judgment in favor of appellee for $875, and for foreclosure of the attachment lien.

We adopt the trial court’s findings of fact, as follows:

“Findings of Fact.
“First. I find that the plaintiff, J. W. Smith, is a resident of Victoria county, Tex., and that the defendant, J. W. Spaulding, is a nonresident of the state of Texas, and resides in the state of Nebraska.
“Second. I find that on the 28th day of October, 1912, and prior thereto, the defendant, J. W. Spaulding, was and is now the owner of a certain tract of land situated in Victoria county, Tex., consisting of- 250 acres out of the M. Irwin and A. Talbot surveys, and that the said 250 acres is the only land owned by the said J. W. Spaulding in Victoria county, and is the only land rendered by him for taxation in said county.
“Third. I find that the said land was purchased by the said J. W. Spaulding through a real estate firm in Victoria, consisting of the plaintiff, J. W. Smith, and E. M. Tracy; that, after the purchase of said land by the defendant, the firm of Tracy & Smith was dissolved, and this parcel of land listed with E. M. Tracy for sale by the defendant; that some correspondence was had in regard to the same between the plaintiff and the defendant; and that on the 20th day of July, 1912, the defendant, with reference to said land, wrote to the Smith-Diebel Land Company, at Victoria, Tex., of which J. W. Smith, the plaintiff, was a member, as follows:
“ ‘Teeumseh, Neb. July 20, 1912.
“ ‘Smith-Diebel Land Co., Victoria, Texas— Gentlemen: Received your letter a few days ago; have been so tom up that I haven’t got a chance to write, we just finished remodeling our store. In reply to your letter would ‘say that everything goes with the place that is on it when sold. Mr. Tracy has the place rented for this year, so it will be up to him in regard to the grass. I also have the place listed with Mr. Tracy. I gave him my best price and terms when I was down last fall and think you will have no trouble in dealing through him if you have a deal on for the place. I am glad to hear that crops are looking so well this year. I understand they are going to grade the road in front of my place. If there is anything more doing let me hear from you. Am always glad to hear from you at any time.
“ ‘Tours truly, [Signed] J. W. Spaulding.’
“Fourth. I further find that on the 2Sth day of October, 1912, the plaintiff, J. W. Smith, proposed to defendant a purchase of the tract of land in question, by letter as follows:
“ ‘Victoria, Texas, Oct. 28, 1912.
“‘J. W. Spaulding, Teeumseh, Neb. — Dear Sir and Friend: I have an opportunity to make an exchange on your 250 acres and while otherwise I would not care to buy it, in this exchange I can make a fairly good deal for me, and I will make you this offer. Will give you $32.50 per acre net for the land. Place $200 earnest money in the bank, and on January 1st will pay you one-third cash, and execute 4 vendor’s lien notes for the balance in equal payments, in 1, 2, 3 and 4 years, interest at 8 per cent, per annum. Deal to be closed Jan. 1, 1913. If this proposition appeals to you let me know at once, as my other man with whom I am dealing will not wait long, and may make other arrangements.
“ ‘Tours very truly, [Signed] J. W. Smith.’
“And that thereafter, to wit, on the 31st day of October, with reference to said trade, telegraphed the defendant as follows:
“ ‘Victoria, Texas, 10 — 31—1912.
“‘J. W. Spaulding, Teeumseh, Neb.: I am offered another trade and party wants immediate answer. Reply to my letter of Monday fully by night letter, my expense. Don’t want to hurry you, but other party will not wait. Can pay more cash if desired.
“‘J. W. Smith.’
“That both said letter and said telegram were received by the defendant, J. W. Spaulding, and that in response thereto, on the 1st day of November, 1912, the defendant, J. W. Spaulding, telegraphed to the plaintiff, J. W. Smith, as follows:
“ ‘Teeumseh, Neb. Nov. 1, 1912.
“ ‘J. W. Smith, Victoria, Texas: Will sell for $8,125 net to me, one-third cash, balance four years, eight per cent., purchaser to pay commission if any. New fence, mill and tank belong to tenant. Answer, as other parties’ message demands immediate reply.
“ ‘J. W. Spaulding.’
“That said message was duly received by the plaintiff, J. W. Smith, on the morning of the 2d of November, 1912, the same being a night, letter, and that, immediately upon the receipt of same, the plaintiff, J. W. Smith, accepted the proposition of the said J. W. Spaulding, as contained in said telegram, by a telegram to said J. W. Spaulding,’as follows:
“ ‘Victoria, Texas, November 2, 1912.
“ ‘J. W. Spaulding, Teeumseh, Neb.: Deal closed as per your night letter, two hundred dollars forfeit money in First National Bank. Letter with contract will follow. Ans.
“‘J. W. Smith.’
“Which said telegram was on the same day received by the said J. W. Spaulding. That on the same day, to wit, November 2, 1912, the defendant telegraphed to the plaintiff by night letter the following:
“ ‘Teeumseh, Neb. Nov. 2, 1912.
“ ‘J. W. Smith, Victoria, Texas: Tour message too late, closed with other parties.
“‘J. W. Spaulding.’
“Fifth. I further find that, at the time of the proposition of the said J. W. Smith to the said J. W. Spaulding to buy the tract of land in question, the said Smith, plaintiff herein, was ready, willing, and able to buy said land upon the terms proposed by the defendant, Spaulding, and was only prevented from carrying out the contract by the action of the defendant in repudiating the same.
“Sixth. I further find that, at the date of the conclusion of the contract between the plaintiff and defendant, the market value of the parcel of land in question was $9,000, and, the purchase price at which defendant had proposed to sell the same to plaintiff being $8,125, plaintiff’s damages, occasioned by defendant’s breach of the contract, was $875.
“Seventh. I further find that the parcel of land in question had been occupied by E. M. Tracy during the year 1912 as a tenant, and that the said Tracy had erected upon the same a new fence, windmill, and tank, and that this parcel of land was the only land occupied by the said Tracy as a tenant of the defendant herein, and was the only parcel of land owned by defendant upon which a new fence, windmill, and tank had been erected by the tenant, and was the same tract of land referred to by the defendant, Spaulding, in his telegram to J. W. Smith, dated November 1, 1912, and above set forth.
“Eighth. I further find that on November 2, 1912, the same day on which the defendant, J. W. Spaulding, refused to comply with his contract with J. W. Smith for the sale of said parcel of land, he accepted a proposition from A. B. Calhoun for the purchase of the same; the deal with Calhoun being with reference to the said parcel of land described in plaintiff’s petition in this cause.”

Appellant’s first special exception was to the effect that the petition was insufficient in that the contract, as alleged, therein, did not sufficiently describe the land so as to comply with the statute of frauds. The petition does not show that the contract alleged contained an insufficient description of the land; in fact, it was expressly alleged that plaintiff in writing offered to buy from defendant the 251 acres of land, which had been fully described in the petition.

The petition was not excepted to on the ground that it failed to set out the description contained in the written offer, nor on the ground that it failed to allege how the offer was communicated to defendant. We conclude that it was not subject to the exception made, and overrule the first assignment of error.

The second exception was to the effect that the petition showed that plaintiff did not accept defendant’s offer, but made his telegram of acceptance subject to the provisions of a contract which was to follow by mail. It was alleged that plaintiff sent a telegram to the effect that the proposition of the defendant was accepted, and that $200 forfeit money was placed in the bank, and that a letter with contract would follow. It was not alleged that the acceptance was subject to the terms of the contract, nor that a contract was sent containing other terms than those agreed upon; and the presumption is that the formal -contract was to embrace the terms agreed upon. The assignment is overrated.

Defendant pleaded that on or about November 2,1912, plaintiff, at the time he entered into the contractual relations with defendant, also entered into a contract with W. T. De Tar, to sell the land to De Tar at a profit to plaintiff of $511, and that such sum constituted the damages suffered by plaintiff by breach of the alleged contract between plaintiff and defendant. Plaintiff excepted to said plea on the ground that same did not allege the proper measure of damages, and the court sustained such exception. By the third assignment appellant questions the correctness of that ruling. We find no case directly bearing upon this point, but conclude that the court was correct in holding that the measure of damages was the difference between the contract price and the market value of the land upon November 2, 1912. The buyer is entitled to be compensated for the loss of his bargain regardless of what he intended to do with the land. If it can be assumed that the purchaser under the resale contract would have complied with its terms, it can also be assumed -that he would exact damages for a breach thereof by the other party, to the amount of the difference between the market value and the resale price. The assignment is overruled. Sedgwick on Damages, § 1005; Warville on Vendors, p. 959, § 3.

The fourth assignment attacks the admission in evidence of the letter described in the trial court’s third finding of fact, herein-before set out. The letter was admitted for the purpose of identifying the land as the property rented or leased to and occupied by E. M. Tracy at that time, and to show that it was the same property and the only property for which plaintiff and defendant subsequently contracted. We do not think the letter adds anything to the description of the land as made by the letter and telegrams set out in the court’s fourth finding of fact, and conclude that the same was irrelevant and should have been excluded.

By the fifth assignment appellant complains of the ruling of the court in admitting in evidence the letter described in the fourth finding of fact, and by the sixth assignment he complains of the admission of the copy of telegrams from appellant to appellee dated November 1st, also described in said fourth finding of fact.

It appears that the original telegram, which was the primary evidence, was outside the jurisdiction of the court, and the copy received by appellee, and pleaded by him as a part of the contract sued upon, was therefore admissible as secondary evidence. Smith v. Bank, 82 Tex. 376, 17 S. W. 779; Railway v. Gernan, 84 Tex. 142, 19 S. W. 461; Telegraph Co. v. Smith, 26 S. W. 216; Meyer v. Hale, 23 S. W. 991. The question whether the letter was admissible is dependent upon its probative force as a link in the correspondence relied upon to show a contract in writing sufficient under the statute of frauds. Said letter must be considered in connection with the two telegrams described in the fourth finding of fact in order to determine whether a contract in writing was entered “into by the parties.

The memorandum or writing required by the statute of frauds may be shown by correspondence. Peters v. Phillips, 19 Tex. 74, 70 Am. Dec. 319; Patton v. Rucker, 29 Tex. 407; Watson v. Baker, 71 Tex. 747, 9 S. W. 867; Poster v. Land Co., 2 Tex. Civ. App. 505, 22 S. W. 260; Black v. Hanz, 146 S. W. 312. In passing upon the second assignment, we have held that the telegram by appellee, in reply to the one sent by appellant on November 1st, was an absolute acceptance of the proposition made, and we need not further discuss the contention that the same was conditional.

The further objection is urged by appropriate assignments that the correspondence does not contain a sufficient description of the land to make a valid contract under the statute of frauds. The land is described as appellant’s 250 acres, upon which there is a new fence, windmill, and tank owned by the tenant. By parol evidence it was shown, as is set out in the seventh finding of fact, that the land described in appellee’s petition was the only land owned by appellant upon which there existed a new fence, windmill, and tank owned by his tenant. It therefore appears that the land was described with' sufficient exactness to render its identity certain upon the introduction of extrinsic evidence simply disclosing the condition of the parties at and immediately before making the contract. We are unable to distinguish this case in principle from the cases of Taffinder v. Merrill, 95 Tex. 100, 65 S. W. 177, 93 Am. St. Rep. 814, and Beaton v. Fussell, 166 S. W. 459. The cases of Penn v. Yellow Pine Co., 35 Tex. Civ. App. 181, 79 S. W. 842, and Rosen v. Phelps, 160 S. W. 104, cited by appellant, are not in point. In each of said cases the land was not even described as owned by tbe party sought to be charged, and proof that such party owned land of the acreage described did not malre it certain that the description in the contract applied to such land and could apply to no other. The ease of Adams v. Hughes, 140 S. W. 1168, also cited by appellant, is not in conflict with our conclusion. . In that case it is held that the description, “All the timber on our lands situated in the southern part of Jas-' per county, Tex.,” is sufficient, but that, had certain tracts out of a number of tracts been described as “certain lands belonging to us in the southern part of Jasper county,” the description would have been bad for uncertainty, because such description' in itself would not have furnished any information which, by applying it to the number of tracts owned, would make it certain which of such tracts were intended to be conveyed.

We conclude that the evidence, aside from the letter described in the third finding of fact, was sufficient to authorize the judgment of the court, and that such judgment should be affirmed.

Judgment affirmed.


text:
    DILWORTH & GREEN v. ED STEVES & SONS et al.
    (No. 5303.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 22, 1914.
    Rehearing Denied Oct. 7, 1914.)
    1. Mechanics’ Liens (§ 199) — Vendor’s Lien — Waiver in Favor oe “Mechanics’ Lien.”
    Where the holders of a vendor’s lien on certain unimproved lots, in order to assist the vendee to construct improvements, executed an instrument reciting that they waived the vendor’s lien in favor of the holders of a mechanic’s Jien so that the mechanic’s lien should be superior to the vendor’s lien, etc., the words “mechanic’s lien” were not used in their technical sense to mean a lien for labor only, but in the broad sense of a lien given by Rev. St. 1911, arts. 5621-5639, covering both material and labor.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 371-374; Dec. Dig. § 199.

    For other definitions, see Words and Phrases, First and Second Series, Mechanics’ Lien.]
    2.' Mechanics’ Liens (§ 199) — Vendor’s Lien — Waiver in Favor oe Mechanics’ Lien.
    Where the holders of a vendor’s lien on certain unimproved property, in order to enable the vendee to improve the same, executed an instrument providing that, whereas it was desirable and beneficial to them that the improvements be made, they thereby waived their vendor’s lien in favor of the holders of a mechanic’s lien, such instrument was a written offer to waive the lien in favor of any person who would erect a house on the land and take as security therefor the statutory mechanic’s lien, and, such offer having been accepted and the house erected, the vendors were estopped to deny the validity of the waiver on the ground that the instrument was executed by them alone and bound no one to do anything on account of or in consideration of the waiver.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 371-374; Dec. Dig. § 199.]
    3. Mechanics’ Liens (§ 199) — Vendor’s Lien — Waiver in Favor oe Mechanics’ Lien.
    Where vendors, to enable the vendee to erect a house on unimproved property, executed a written waiver of their vendor’s lien in favor of a mechanic’s lien, the waiver would be construed to cover the cost of material and labor necessary to complete the building, but could not be extended to cover taxes paid by virtue of a provision of the contract nor a penalty, consisting of the payment of attorney’s fees, for nonpayment of a note given for the contract price.
    [Ed. Note. — For Liens, Cent.. Dig. 199.] other cases, see Mechanics’ §§ 371-374; Dec. Dig. §
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Ed Steves & Sons and others against Dilworth & Green. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Joe L. Hill and Gordon Bullitt, both of San Antonio, for appellant. C. R. Edwards and Templeton, Brooks, Napier & Ogden, of San Antonio, for appellees.

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

       writ of error pending in Supreme Court.

   MOURSUND, J.

On February 10, 1910, Dilworth & Green conveyed to C. H. Skidmore lots 1 to 7, inclusive, block 10 of Dilworth & Green Terrace, city of San Antonio, a vendor’s lien being expressly retained to secure the payment of a note for $3,305, executed by Skidmore to such grantors. Dilworth & Green executed the following instrument:

“State of Texas; County of Bexar.
“Whereas, on the 10th day of February, 1910, R. S. Dilworth of Gonzales county, Texas, and William Green of Lavaca county, Texas, made, executed and delivered to C. H. Skidmore, a deed to a certain tract or parcel of land lying and being situated in the city of San Antonio, Bexar county, Texas, being a part of old city lot No. 97, district No. 1, range No. 4, and further described as lots Nos. 1 to 7, in block No. 10, in Dilworth & Green Terrace as platted by Dil-worth and Green, and of record in deed records of Bexar county, Texas, to which plat reference is made for description; and whereas, in said deed a vendor’s lien was retained to secure the payment of the vendor’s lien notes; and whereas, said C. H. Skidmore is about to enter into a contract for the erection of a residence on lots Nos. 1 and 2, in said block No. 10; and ' whereas, it is desirable and beneficial to us that said improvements should be erected: Now therefore, we, R. S. Dilworth and William Green, for the purpose of enabling said C. H. Skidmore to erect said house, hereby waive the vendor’s lien held by us against lots Nos. 1 and 2, in favor of the holders of the mechanic’s lien —-, so that the mechanic’s lien shall be superior to the vendor’s lien but it is expressly understood and agreed, as against the said C. H. Skidmore and every one except the holders of the said mechanic’s lien that the vendor’s lien shall continue to exist against the said lots, but this is only intended as a waiver in favor of the mechanic’s lien aforesaid.
“In witness whereof we have hereunto signed our names this the- day of February, A. D. 1910. R. S. Dilworth.
“William Green.”

Such instrument was duly acknowledged before Joe L. Hill, a notary public for Bexar county, on February. 16» 1910, and was filed with the county clerk of said county for record on March 3,1910, and duly recorded. On March 4, 1910, C. H. Skidmore and his wife, Bessie, entered into a written contract with C. M. Licklider, reciting that the Skidmores were the owners of lots 1 and 2, block 10, in the Dilworth & Green Terrace, city of San Antonio, and providing that Licklider would build a house for the Skidmores upon said lots according to certain plans and specifications, and would furnish all 'material necessary for the completion of the house, and the Skidmores bound themselves to pay $3,500 to Licklider, executing a note payable in installments, and to secure the payment thereof granted to Licklider a “mechanic’s and ma-terialman’s lien as provided by the laws of the state of Texas” upon said lots and the improvements to be erected thereon. It was further provided in said contract and in the note that if default be made in the payment of the note or interest thereon, and the same should be placed in the hands of an attorney for collection, or collected through judicial proceedings, an additional amount of 10 per cent, should be added to the same as collection fees. It was further provided that the Skidmores should pay all taxes, and upon their failure to do so, if Licklider should pay same, such amount should be immediately due him, and a lien was specifically given him for the securing of such advancements. The contract was duly acknowledged by all parties thereto and filed for record on March 5, 1910, and duly recorded.' The day the contract was executed Licklider sold and transferred to Ed Steves & Sons, by written instrument, the note described in said contract, and the lien created therein, which instrument was duly acknowledged on March 4, 1910, and filed for record on April 9, 1913. Licklider built the house. On December 1, 1910, C. H. Skidmore and his wife conveyed said lots 1 and 2, block 10, to J. M. Vela, in consideration of $10 cash paid and the assumption by Vela of the payment of $944 on the vendor’s lien note for $3,305 due Dil-worth & Green, and the payment of the note for $3,500, payable to Licklider. Default was made in the payment of the note by the Skidmores to Licklider, and the same was by Ed Steves & Sons placed in the hands of an attorney for collection, under an agreement that he was to receive 10 per cent, on the amount due on the note as fee. Default was also made in the payment of taxes due upon said lots 1 and 2, and Ed Steves & Sons paid same, to the amount of $133.27. On July 2, 1913, Dilworth & Green obtained a judgment against C. H. Skidmore and J. M. Vela for $1,253.41 and against O. H. Skidmore for the further sum of $3,369.30, and foreclosing the vendor’s lien held by them upon lots 1 to 7, inclusive, conveyed by them to Skidmore, as hereinbefore set out. Order of sale was issued, and lots 3 to 7 were sold, and purchased by Dilworth & Green, but lots 1 and 2 were not sold because of an order entered staying the sale as to said lots. On April 9, 1913, Ed Steves & Sons sued Skidmore and his wife, J. M. Vela, C. M. Licklider, Dilworth & Green, Daniel & Daniel, W. G. Daniel, and J. G. V. Redmon, seeking a recovery against the Skidmores and Vela upon the $3,500 note executed by the Skidmores to Licklider and against all the defendants for foreclosure of the mechanic’s and materialman’s lien given to secure the payment of said note. The case was dismissed as to Daniel & Daniel, W. G. Daniel, and G. M. Licklider. The Skidmores and Redmon failed to answer, and judgment by default was taken as against them. Vela answered by general demurrer, a special exception, and a general denial. Dilworth & Green answered, specifically denying each material paragraph of plaintiffs petition, and then pleaded their note from Skidmore, the sale to Vela, the judgment against the Skidmores and Vela, and prayed that their vendor’s lien be adjudged to be superior to the lien asserted by Ed Steves & Sons. The trial before the court resulted in a judgment in favor of Ed Steves & Sons for their debt against the Skidmores and Vela and foreclosing their lien as against all defendants, but plaintiffs lien was adjudged to be superior to that of Dilworth & Green only to the extent of $3,334, the court declining to hold the same superior thereto as to the attorney’s fees and taxes sued for. Dilworth & Green appealed, and by, several assignments of error question the correctness of the judgment declaring plaintiffs lien superior to theirs to the extent of $3,334, while Ed Steves & Sons have filed cross-assignments of error attacking the holdings by which their claims for attorney’s fees and taxes were adjudged not to be secured by a lien superior to that of Dilworth & Green. Upon the questions of law involved we conclude as follows:

1. The court did not err in holding that the waiver executed by Dilworth & Green applied to a lien for material as well as labor. When the entire instrument is considered, it is evident that the parties intended such a waiver as would permit the erection of a house, and it appears that a contract for the erection thereof was then contemplated by the parties. If Skidmore had.enough money to pay for the material in a $3,500 house, it is reasonable to suppose that he could have procured a release of the vendor’s lien upon lots 1 and 2 by paying such money upon the vendor’s lien note for $3,305, which was secured by lien upon seven lots. If Dilworth & Green had intended a waiver only for the labor in erecting the house, such intent could have been aptly expressed in very few words. Neither of said parties took the stand to explain what was meant by the waiver, nor does it appear that Skidmore was a witness. It is not shown who drew the instrument, though it appears that -it was acknowledged, before one of the attorneys for Dilworth & Green in this case. Dilworth & Green rely upon the technical definition of a mechanic’s lien as distinguished from a materialman’s lien, but such definition cannot control the intention of the parties as disclosed by the entire instrument. Dilworth & Green intended, as shown by the instrument, to make such a waiver as would enable Skidmore to erect the house; in other words, to subordinate their lien to such lien as was necessary to be created in order to procure the erection of the house, with the sole limitation that it should be a “mechanic’s lien,” and it is apparent that the words, “mechanic’s lien,” were not used in the narrow and restricted sense of a lien for labor, but in the broad sense of a lien under title 86, chapter 2, Rev. Stat. of 1911, covering material and labor. When courts and law writers use the term, “mechanics’ lien” as a general term to designate liens of contractors, materialmen, and laborers, it is not strange that the same use would be made of it in a contract. See Lippencott v. York, 86 Tex. 276, 24 S. W. 275; Miner v. Moore, 53 Tex. 228; Bank v. Campbell, 24 Tex. Civ. App. 160, 58 S. W. 628; Bank v. Smith, 160 S. W. 812. The first and third assignments of error are overruled.

2. Appellants contend that the instrument executed by them is not binding, the objection being that it was executed by them alone; no one was bound to do anything on account of or in consideration of their waiver; it failed to name the person in whose favor their lien was .waived, and was too vague and indefinite. The instrument amounted to a written offer, sufficiently definite to be fully understood, to waive their lien in favor of any person who would erect a house upon the two lots and take as security therefor the statutory lien commonly known as a “mechanics’ lien,” and this offer was delivered and recorded. It was promptly accepted by written instrument, promptly recorded, the house was erected, and it does not appear that they ever undertook to retract their offer. Relying in good faith upon such offer, appellees purchased the note and lien given by Skidmore and wife. Appellants, on account of such acceptance and the completion of the house, received the benefits mentioned in their waiver, and cannot now be heard to say that they will not be bound to perform what they agreed to perform in consideration of the said benefits. The objections are without merit, and the second assignment is overruled.-

3. The waiver of the “mechanics’ lien” was intended to cover the cost of the material and labor necessary to complete the building, but it is not provided in the waiver that the terms of the contract to be entered into have been agreed upon, nor that whatever contract may be made shall have superiority over appellant’s lien, but it is expressly provided that the “mechanics’ lien” is waived, and we think the waiver can only be applied to a contract for the price of material and labor, and cannot be extended so as to cover taxes paid out by virtue of a provision of the contract, nor to authorize the exaction of a penalty for default in the payment of the amounts due for material and labor. It cannot be presumed that all the details of the contract made on March 4th were known to appellants two weeks pri- or thereto. If Skidmore and Licklider had agreed upon everything at that time, it is difficult to see why the contract was not made between them and described as referred to in the waiver executed by appellants. No definite contract appears to have been agreed upon at that time, so the waiver was made to apply to the “mechanics’ lien” given by statute, if a contract, written or verbal, should be entered into. We think the court did not err in declining to extend the waiver to taxes and attorney’s fees, and therefore overrule the cross-assignments of error.

Judgment affirmed.


author: HARPER, C. J. HIGGINS, J.

text:
    ELZA v. STATE.
    (No. 325.)
    (Court of Civil Appeals of Texas. El Paso.
    June 25, 1914.
    Rehearing Denied Oct. 7, 1914.)
    1. Public Lands (§ 173) — Lands of State —School Lands — Impeovements—Ownership.
    When defendant purchased certain school lands, they were under lease from the state, and the lessee had constructed fences of the value of $500. Defendant acquired the lease from the lessee before purchase, and no part of the fences was removed by the lessee within 60 days after the termination of the lease; but defendant took and held possession of the land from 1896 until suit was brought by the state to forfeit the purchase in 1912. Held, that defendant acquired title to the fences, both by purchase and limitation.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    2. Public Lands (§ 173) — Lands oe State-School Lands — Improvements.
    Where defendant purchased school lands, which had been under lease, procured the lease from the lessee, who had placed fences of the value of $500 on the land, and these were not removed within 60 days after the termination of the lease, defendant was entitled to have the value thereof counted as improvements placed on the land by him during his subsequent three years residence, in determining whether he had erected on the land the statutory improvements.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    3. Pleading (§ 258*) — Answer—Amendment.
    Where, in a suit to cancel defendant’s purchase of school land, he answered, alleging that he had placed improvements on the land to the value of $210.17, the court properly permitted him to amend his answer by pleading other and different improvements, under the rule that it is in the discretion of the court to permit an amendment, which does not set up a new and different cause of action or defense, provided it does not surprise the opposite party, at any time prior to submission of the cause.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 765-782; Dec. Dig. § 258.*]
    4. Public Lands (§ 173) — Action to Set Aside Purchase — Pleading—General Issue.
    In a suit to set aside defendant’s purchase of school lands, he was entitled to prove, under his plea of not guilty, the value of all improvements made on the land during the three years subsequent to his purchase, to show the erection of the necessary statutory improvements, though the value proved was greater than that alleged.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    Higgins, J., dissenting in part.
    Appeal from District Court, Brewster County; W. C. Douglas, Judge.
    Trespass to try title by the State against Spencer Elza and another. Judgment for the State, and defendant Elza appeals.
    Reversed and rendered.
    Chas. Rogan, of Austin, Geo. Thurmond, of Del Rio, and W. Van Sickle, of Alpine, for appellant. B. F. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., Walter Gillis, of Del Rio, and J. D. Martin, of Alpine, for the State.

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

   HARPER, C. J.

This is an action in trespass to try title brought by the appellee, the state of Texas, against appellant, Spencer Elza, and L. Haley, to recover certain school lands sold to said Elza by the Commissioner of the General Land Office of Texas. The state, in her original petition, filed July 28, 1913, alleges in substance, the following:

(1) That prior to January 25, 1905, the defendant L. Haley leased the lands in controversy, among others in his inclosure, and has, since so leasing same, used, possessed, and enjoyed same.

(2) That on January 25, 1906, the defendants conspired together to defraud the state and the public school fund of the lands in controversy for the benefit of said L. Haley, and pursuant of said conspiracy this appellant did certain things in relation to the lands sued for, to wit:

(A) On January 25, 1905, he made, and on the 30th filed, his applications to purchase the first five tracts, the home tract being W. ½ of section 20, block WJG8, T. C. Ry. Co., the other four being applied for as additional thereto, and the awards upon these tracts were made by the Land Commissioner upon said applications. The other seven tracts in controversy were applied for by appellant on May 12, 1906, by applications filed May 17, 1906, and same were awarded him thereon as additional to his home tract (W. % of section 20).

(B) That the statements contained in said affidavits to purchase (the legal affidavit for school land purchases) were all untrue, false, and fraudulently made in pursuance of said conspiracy. That in purchasing said land appellant in fact did not purchase the same for himself, but for his codefendant, L. Haley, and he was acting in collusion with Haley in making said purchases, for the purpose of perpetuating the range of said Haley, and the defendant Haley had paid the one-fortieth of the purchase price and the interest payments for said lands.

(C) That in pursuance of said conspiracy appellant pretended to lease said lands by certain described written leases, but in fact said leases were for the purpose of giving said Haley complete control of said lands, and to cover up the real facts.

(D) That appellant never resided upon the home tract, or any of his additional lands, as by law required.

(E) That appellant never placed upon said lands the improvements required of purchasers of -school lands under the law governing their purchase.

(F) That the Land Commissioner forfeited the sales to appellant on or about October 2, 1907, and thereby and by reason of appellant’s failure to reside on the lands and improve the same, as by law required, and by reason of the conspiracy and fraud alleged in the purchase of same, the lands were forfeited to the state, and she was entitled to the possession thereof.

(G) Prayer for recovery of title, possession, rents, damages, and costs.

Appellant, on September 9, 1913, filed his answer, consisting, after preliminary pleadings, of:

(1) A plea of “not guilty.”

(2) Specific denials of the material allegations of plaintiff’s petition seriatim.

Specifically pleading his title as follows:

(1) Settlement on home tract on December 24, 1904.

(2) That on January 27, 1905, the first five tracts were on the market, classified as “watered grazing land,” and appraised at $1.50 per acre, except W. ½ of section 20, which was appraised at $2 per acre. That on said date he applied to purchase said five tracts by filing his application with the clerk and designated W. % of section 20 as his home tract. That he paid the one-fortieth cash required at same time and executed his obligations for the balance. That the lands were awarded to him on said applications.

(3) That he continuously resided on said lands for three consecutive years from date of his purchase, and was at the time of filing his applications an actual settler on his home tract.

(4) That on May 17, 1906, he filed his applications for the other seven tracts, and same were awarded to him as additional lands to his home tract on June 13, 1906.

(5) That he has paid and tendered payment of all interest due the state, and has placed improvements on his lands (describing them) of the value of more than $300.

Appellee filed on September 15, 1913, a supplemental petition specifically denying certain paragraphs of appellant’s special answer.

On September 17, 1913, this appellant filed his trial amendment, alleging additional improvements acquired by him on certain of his lands, in order to meet objections by appellee of his making proof thereof that he had not placed such improvements, to which appellee, answered by general and special exceptions and special denial.

The trial was before the court, without the aid of a jury, upon the above pleadings, and the court, upon hearing and considering the testimony, made the following findings of fact:

(1) That the first five tracts described in the petition were applied for by appellant on January 25, 1905, and awarded to him on February 9, 1905.

(2) That the last seven tracts were applied for on May 14, 1906, and awarded June 13, 1906.

(3) That appellant was an actual settler upon his home tract (W. V% of section 20) on the date he applied to purchase the same, and actually and continuously resided thereon for three consecutive years thereafter.

(4) That appellant settled upon and occupied said lands in good faith, and was not in collusion with any one in such purchase.

(5) That there was one mile of good barbed wire fence on the W. % of section 20 at the time of the award of same to Spencer Elza. Said fence was.at said time of the reasonable value of $200, and had been constructed by L. Haley while he (Haley) held said land under lease from the state, and under the terms of his lease the said Haley had 60 days within which he might remove the said fence, and said fence had not been removed. I find, however, that Spencer Elza did not within 60 days, or at any subsequent time, purchase the same fence from Haley.

(6) That L. Haley, during his leasehold of the lands in controversy, constructed two miles of fence .on section 40, one mile on 42, and one mile on the S. % of 4. That under the terms of his lease he had a right to remove same within a certain time, and such fences were not removed. That appellant did not purchase the said fences.

(7) That the Land Commissioner canceled appellant’s sales on October 2, 1907, for failure to reside thereon according to law.

(8) That said lands were then awarded to R. L. Henderson, J. P. Lester; and J. W. Walker, but they did not go into possession of same until after the awards to them.

(9) That Spencer Elza placed on his home tract improvements to the amount of $210 during the three years next after his purchase and none on the additional lands.

(10) Elza paid or tendered payment of amounts due the state on account of said purchase.

Upon these facts the court finds, as conclusion of law, that appellant, Spencer Elza, is entitled to judgment unless his failure to place upon some portion of the lands within three years from the award of the home tract permanent and valuable improvements of the value of $300 had the effect of breaching his contract with the state, and, concluding that it so does, judgment was rendered, for the state of Texas against appellant.

There was judgment for defendant Haley upon his disclaimer for costs, and judgment for this defendant upon his plea in abatement as to W. % of section 20. Appellant promptly filed his motion for a new trial, which was overruled by the court, to which ruling and order this appellant excepted and gave notice of appeal, and in due time filed his appeal bond, and the case is in this court for review upon the specifications of error assigned by this appellant in his motion for new trial.

The question of sufficiency of the improvements is the only one submitted by the assignments of error. It will be noted that the court found that defendant Elza had, at his own expense, placed improvements upon the premises to the value of $210.17, and no more, but further finds that there were three miles of fence upon the lands, which had been constructed by L. Haley, while he (Haley) held said lands under lease from the state, and that the Haley lease was transferred to Elza before purchase; and the evidence affirmatively shows that the fences in question were worth $500, and that the defendant Elza bought and paid for same. The evidence is sufficient to establish appellant’s ownership of these fences by purchase and by limitation. The last possession taken under purchase was in 1906. This suit was filed 1912. The said fences not having been taken possession of by Haley within GO days, and no suit having been filed for that purpose, Elza’s ownership could not be questioned after two years, unless the state by affirmative proof could show that there was an agreement between Haley and Elza that the title to the fences should not pass (the burden being upon the state), and the court has found as a fact that there was no collusion between the parties. Appellee presents cross-assignment attacking this finding of fact by the trial court; but the evidence sustains the finding, and it is here approved. So, under the facts, defendant was the owner of the said fences prior to the expiration of his three years’ occupancy.

Then, conceding that the defendant did not place $300 worth of improvements upon the land after his purchase, the question arises: Could the improvements placed upon the land by Haley be counted as placed thereon by the defendant during the term of three years’ residence, and constitute a compliance with the law requiring the erection of improvements? A strictly technical construction of the statute requiring improvements would be to hold that improvements should be erected after the purchase and before the expiration of three years. However, forfeitures are not favored. Salgado v. Baldwin, 105 Tex. 508, 152 S. W. 165. And appellees have referred us to no case holding that it is necessary that a purchaser under this statute shall have, in person, placed the required improvements upon the land, and none has been found after due search, but in effect the contrary has been held. Shelton v. Willis, 23 Tex. Civ. App. 547, 58 S. W. 176.

The statute provides that on the expiration of a lease the lessee shall have the right for a period of 60 days to remove any or all improvements ' he shall have placed upon the leased premises, defendant, being the as-signee of Haley’s leases, would undoubtedly have the same right, so it cannot be consistently contended that in order for Elza to comply with this provision of the law, with respect to improvements, after purchase from the state, and while he had the leasehold interest, he would be required to remove the improvements and then replace them within three years, or to erect other'improvements in their stead, or even in addition thereto. Undoubtedly the primary purpose of the Legislature in using the words “shall be required within three years after his purchase,” etc., was to fix the time within which the improvements should be upon the land, and the purpose of requiring the improvements was that they would be evidence of good faith of the occupancy; and this was attained by the maintenance of the improvements already upon the premises, the title to which was obtained before the purchase or at any time during the three years.

The appellee contends that, because the appellant only named in his answer improvements to the value of $210.17, he could not by amended answer, after announcement of ready, set up other and additional improvements, and prove the allegations as a defense. Where the proposed amendment does not set up a new and different cause of action, it may be filed, in the discretion of the trial court, at any time prior to submission of the cause to the jury, provided it does not operate a surprise to the other party. Glasscock v. Hamilton, 62 Tex. 160; Ann Berta Lodge v. Leverton, 42 Tex. 21.

Besides the evidence was admissible under the plea of not guilty, for where the defendant proposes merely to disprove the facts alleged by the plaintiff, a general denial will serve his purpose. It must therefore be held that the appellant, Elza, had in all things complied with the law, and his purchase is not subject to forfeiture by the state.

Reversed and rendered.

HIGGINS, J.

I concur in the action of the majority in reversing this case, but think it should be remanded for retrial, rather than rendered. The trial court made no definite finding respecting the title to the fences constructed by Haley on a portion of the premises in controversy. He merely found that Elza did not purchase the same from Haley. The evidence respecting the title to these fences does not seem to have been fully developed, and in any event it is wholly insufficient to warrant this court in undertaking, as a matter of law, to say that the title thereto is shown to have been vested in Elza. I think the action of the- majority in undertaking to dispose of the issue of title to these fences is improper, and a matter which should be referred to the trial court for determination.

I here now enter my dissent to the order finally rendering the cause.


text:
    STATE MUT. FIRE INS. CO. v. KELLNER.
    (No. 342.)
    (Court of Civil Appeals of Texas. El Paso.
    July 2, 1914.
    Rehearing Denied Oct. 5, 1914.)
    1. Insurance (§ 335) — Forfeiture — Keeping Inventory — Entire or Severable Contract.
    In determining whether a clause in a policy insuring a building, fixtures, and a stock of merchandise, providing that the policy should be void unless an inventory and a set of books were kept, applied to the insurance on the building and fixtures, the policy would be construed as a whole to determine whether there was anything in its language indicating that it was understood by the parties, or should have been understood by them, that the clause would apply to property other than the stock of merchandise, and the policy would not be construed as entire, unless its express provisions compelled such construction.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.]
    2. Insurance (§ 335) — Forfeiture—Keeping Inventory — Entire or Severable Contract.
    A policy of insurance, specifying different amounts of insurance on a building, the furniture and fixtures therein, and a stock of merchandise, provided that the insurer should not be liable for the amount carried in excess of three-fourths of the actual value of each item; that insured would take an inventory at least once a year; and that unless such inventory, with a set of books showing the complete record of business transacted since the taking of the inventory, was on hand at the date of the policy, one should he taken within 30 days thereafter or the entire policy should be null and void, and that, in case of loss or damage to the personal property mentioned therein, the books must be delivered to the company. Held, that the policy was severable, and the failure to take an inventory and keep a set of books did not avoid the insurance on the building, furniture, and fixtures; it appearing that the' purpose of the provision, requiring an inventory and set of books, was to provide evidence to show the loss sustained, and the failure to take an inventory, would not .increase the hazard, nor would the taking thereof prevent fraud.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Louis Kellner against the State Mutual Eire Insurance Company. From a judgment for plaintiff, defendant appeals.
    .Affirmed.
    Mangum & Townsend, of San Antonio, and Ring, Carothers & Brown, of Houston, for appellant. Barkley & Green, of Houston, and Marsene Johnson, of Galveston, for appellee.

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

   HARPER, C. J.

This is a suit by appellee, Louis Kellner, on a fire insurance policy issued by appellant, the State Mutual Fire Insurance Company, on July 1, 1911, insuring appellee’s property against loss by fire to the amount of $2,000, in the amount and upon the following property, to wit: $1,000 on a two-story shingle roof, frame building; $900 on stock of merchandise in said building; and $100 on the store and office furniture and fixtures in said building — all of which property was destroyed by fire on the 3d day of February, 1912.

The appellant, defendant in the court below, pleaded breach of warranty on the part of appellee in failing to make inventories and prepare and keep a set of books as required by policy, and that thereby, and in accordance with the terms of the policy, the entire policy was rendered null and void.

The appellee excepted to all of the appellant’s plea of breach of warranty and failure to comply with the provisions of the policy, in so far as the same were pleaded as a defense to the suit seeking to recover for the loss of the building and fixtures, on the ground that the same constituted no defense to the amount of insurance due on account of the loss of the building and fixtures.

The trial court sustained said demurrer, and held that the same set up no defense to appellee’s rights to recover for the fixtures and building. The case was tried by the court, who rendered judgment for appellee in the sum of $1,100, with interest thereon at 6 per cent, from April 3, 1912, from which this appeal is perfected.

The assignments of error presented by appellant’s brief urge that the policy sued upon was rendered entirely void by reason of the failure of appellee to comply with the following clause of the policy:

“The assured (Louis Kellner) will take a complete itemized inventory of stock on hand, at least once in each calendar year and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books, showing a complete record of business transacted since the taking of said inventory, is on hand at the date of this policy, one shall be taken within 30 days after the date of this policy, or in each or either case this entire policy shall be null and void.”

There is no statement of facts in the record, and the finding of facts by the trial court are very meager.

The first paragraph of the findings, as it applies to the facts, is:

“There is no dispute as to the facts. The two policies described in the petition were issued, and the house was destroyed by fire before the expiration of the policies, and the plaintiff only seeks to recover for the loss of the building and fixtures under the policy issued July 1, 1911.”

This finding by the trial court is in effect that the allegations of plaintiff are true, viz.:

“That on the 1st day of July, A. D. 1911, said defendant, in consideration of the payment of $45 to the defendant, insured plaintiff from the 1st day of July, A. D. 1911, to the 1st day of July, A. D. 1912,- against all direct loss or damage by fire to an amount not exceeding $2,000, same being issued in the amounts and upon the property hereinafter described, to wit: $1,000 on the two-story shingle roof frame building while occupied for the purpose of a general mercantile store and dwelling, and situated on Chocolate Bayou, in Brazoria county, Tex., and being on lot No. 12 in block No. 45, such insurance on said building including the foundation awnings (except cloth awnings), permanent pip-ings, and fixtures for.heating and water service ; $900 on plaintiff’s stock of merchandise, consisting principally of dry goods (work clothes), notions, etc., and groceries and other merchandise, such as is usually kept for sale in a general mercantile store, while contained in the building above described; and the further sum of $100 on the store and office furniture and fixtures, including counters, shelving. iron safe, typewriters, and cash registers while contained in the building above described. That on or about the 3d day of February, A. D. 1912, and while said above-described policies were in full force and effect, said general mercantile store and dwelling house, and all contents thereof, was completely and totally destroyed by fire, and at the time was the property of the plaintiff, and that the building used as such general mercantile store and dwelling house was, at the time of the destruction thereof, reasonably worth the sum of $1,800. That the furniture and fixtures thereon were, at the time of the issuance of said last-described policy, and at all times after said date, and up to the destruction thereof, the property of the plaintiff, and worth the reasonable value of $300.”

The plaintiff’s demurrer to defendant’s answer having been sustained, the allegations contained in the answer are to be taken as true, viz.:

“Said defendant says that the policies sued on .were issued by defendant and accepted by plaintiff, and each of them, subject to certain stipulations and conditions indorsed thereon, added thereto, and made a part of said policies, and each of them, which were the three-fourths value clause and record warranty clause, and that said policies were so accepted by plaintiffs, and each of them, subject to said clauses, and each and all of the terms conditioned in said clauses. That said policies, and each of them, provide that the defendant company did insure the property contained in each of them against all direct loss or damage by fire and lightning, except as in such policies and on the property described, in each of said policies respectively, while located and contained as described in such policies, and not elsewhere. That it is provided in each of said policies that the insurance mentioned in each of them is effective, subject to the following conditions, to wit: That, in the event of loss or damage by fire to the property insured under this policy, defendant company should not be liable for the amount carried in excess of three-fourths of the actual value of each item of property insured by the policy at the time immediately preceding such loss or damage. That the following covenants were made a part of each of said policies and the warranty upon the part of the insured, and the insurance effected, if any, was subject to the following conditions : (1) That the insured agreed and binds himself to take, and that he would take, a complete itemized inventory of stock on hand at least once in each calendar year, and within 12 months of the last preceding inventory, if such has been taken at the time of the issuance of the policy. That unless 'such an inventory has been taken within 12 calendar months prior to the date of the policy, and, together with a set of books showing the complete record of business transacted since the taking of such inventory, is on hand at the date of the policy, and in each or either case the entire policy should be null and void.”

Defendant further alleged that:

“It is further provided in said warranty clause that the assured will preserve all inventories taken after the issuance of the policy, and, in case of loss or damages insured against to the personal property mentioned herein, said books and inventories must be delivered to defendant company or the entire policy shall be null and void, and no suit shall be maintained thereon for any such loss. And defendant further charged that plaintiff failed to comply 'with said provisions,” etc.

The policy must be construed as a whole to determine whether there is anything in its language that would indicate that it was understood by the parties to it, or should reasonably have been understood by them, that the forfeiting clause would, in case of fire, apply to anything enumerated in the policy, except the goods in the building. Roberts Willis & Taylor Co. v. Sun Mut. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955.

In other words, from the terms of the policy, can it be said that the insured was charged that unless he took an inventory, and preserved the books in which same was recorded, he forfeited his right to recover the value of the other items separately named and valued therein? The decisions are in conflict as to insurance of buildings and contents being severable, but the rule in Texas seems to be well settled that the policy will not be construed to be entire, unless the express provisions thereof compel such construction.

“The language [of the policy] was selected by the defendant to express the terms of forfeiture imposed by i-t, and language will be strictly construed against it for that, and for the additional reason that forfeitures are not favored and will not be declared unless the case comes within the terms prescribed.” Bills v. Hibernia Ins. Co., 87 Tex. 551, 29 S. W. 1064, 29 L. R. A. 706, 47 Am. St. Rep. 121.

Among the provisions in the policy which indicate that the policy is severable are the following (the policy has not been transmitted to us, but the quotations are from the allegations in defendant’s answer):

“In event of loss by fire, * * * defendant company shall not be liable for the amount carried in excess of three-fourths of the actual value of each item.”

And following this is the clause requiring the inventory to be taken and preserved. And, in case of loss or damage to the personal property mentioned herein, said books must be delivered to defendant. The language of the policy quoted clearly indicates that the purpose was only to provide evidence to show the loss sustained. The failure to take an inventory would not increase the hazard, nor would the taking of an invoice prevent fraud. Fraud would vitiate the entire contract, regardless of such provisions, so the failure of plaintiff to observe that feature of the contract in no way added to the liability of the company or its risks, and, under the facts of this case, the assured would have been justified in concluding that his neglect to provide the invoice would simply result in losing the amount of insurance placed upon the stock of goods.

Affirmed.

HIGGINS, J.

I concur in the order affirming this cause. I am of the opinion the contract of insurance is divisible, and that the insurance of $900 upon the stock of merchandise is severable from tbe $1,100 upon tbe building, furniture, and fixtures, and tbe breach of tbe warranty pertaining to tbe first item would not invalidate that portion of tbe policy pertaining to the latter, so as to preclude recovery thereon. Ins. Co. v. McKinley, 14 Tex. Civ. App. 7, 37 S. W. 606; Roberts v. Ins. Co., 13 Tex. Civ. App. 64, 35 S. W. 955; Ins. Co. v. Green, 36 S. W. 143; Ins. Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. 180; Ins. Co. v. Brady, 41 S. W. 513; Ins. Co. v. Freeman, 33 S. W. 1091; Ins. Co. v. Luckett, 12 Tex. Civ. App. 139, 34 S. W. 173.

The word “entire,” as used in tbe clause “this entire policy shall be null and void,” does not warrant a change of interpretation of the contract from that stated in tbe cases cited. Miller v. Ins. Co., 14 Okl. 81, 75 Pac. 1121, 65 L. R. A. 173, 2 Ann. Cas. 17.


author: McKENZIB, J.

text:
    SOUTHWESTERN PORTLAND CEMENT CO. v. BUSTILLOS.
    (No. 305.)
    (Court of Civil Appeals of Texas. El Paso.
    July 2, 1914.
    Rehearing Denied Oct. 5, 1914.)
    1. Negligence (§ 32) — Licensees;
    Plaintiff, being on defendant’s premises to carry a lunch to an employs of defendant, a matter in which defendant had no interest, no invitation, but a mere license, is to be inferred as regards liability for his injury.
    [Ed. Note — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.]
    2. Negligence (§ 32) — Licensees.
    Plaintiff, though an infant, being on defendant’s premises, where he was injured, not by invitation of it, but as a mere licensee, it owed no duty to him as to keeping them safe, but merely to refrain from acts willfully injurious.
    TEd. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Ynocenta Bustillos against tbe Southwestern Portland Cement Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Burges & Burges, of El Paso, for appellant. W. M. Peticolas and Stanton & Weeks, all of El Paso, for appellee.

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

   McKENZIB, J.

Ynocenta Bustillos sued tbe Southwestern Portland Cement Company, Atchison, Topeka & Santa Fé Railway Company, and tbe Rio Grande & El Paso Railway Company for damages for tbe death of her son, Ferdinando Bustillos, aged 15 years. Before trial, plaintiff dismissed the two railway companies from the suit. A trial before a jury resulted in a verdict and judgment for plaintiff for $2,500. The trial petition does not clearly and logically set out the facts, and, besides, it contains useless repetition. We will endeavor, however, to state the substance of tbe allegations, as follows: Appellant was engaged in the manufacture of cement; that near its plant and. southerly therefrom was a public road along tbe banks of tbe Rio Grande river; that between the public road and appellant’s premises are railroad tracks belonging to the El Paso & Rio Grande Railway Company; that 20 feet northerly from said railway tracks is a dummy line used and operated by appellant; that upon appellant’s premises, northerly of and near the dummy line, is an excavation, formed either by excavating the earth or by filling in and leaving a depression the unfilled part forming the excavation; that the excavation in question at tbe lime of the accident was used by appellant to dump therein refuse, consisting of ashes, cinders, burning coals, fire, slag, etc., from the cement plant, which formed a burning mass of grfeat heat; that t such burning mass, when undisturbed, apparently was harmless, but when disturbed, would give forth great heat, and flames would emit therefrom, and that the fire and heat in tbe excavation was sufficient to seriously injure or to cause death to one coming in contact .therewith; that along the public road and near appellant’s premises many people resided; that persons passing from tbe public road to tbe appellant’s plant were required to cross over the railway tracks and near to the excavation; that alongside of tbe excavation were private roadways and trails formed by constant use of tbe premises by persons and vehicles; that appellant’s premises were not inclosed by any fence; that the excavation was not fenced or inclosed, or in any manner protected to avoid persons falling therein; that the people of the settlement, appellant’s employés, and persons having business at the cement plant, constantly and habitually passed over said premises and near said excavation ; that though appellant knew of the constant and habitual use of its premises by said persons, which had been constantly going on since the erection of its cement plant, and bad never taken any steps to prevent said use, impliedly and tacitly consented and agreed that the premises might be so used; that the appellant bad failed to erect or maintain any signboards, watchman, or to provide any warning to apprise persons passing tbe excavation of its danger, and had negligently failed to erect or maintain any guard rail, fence, or other barrier to prevent persons from falling therein.

“That on, to wit, the 2d day of June, 1911, Ferdinando Bustillos, the minor son of plaintiff, was passing along the said thoroughfare, that is to say, was passing along a footpath along thé border of said tramway, which wag then, and had been for a long time, used by pedestrians, and which immediately adjoined and was within about a distance of 2% feet from said depression, for the purpose of performing an errand to one of the employés of the said cement company, to wit, one-Delfín, carrying his lunch to him at said cement plant, and at the time of so passing along and near to said depression, the said minor child was in the exercise of ordinary diligence; that the bank of said excavation and pit was soft and composed of loose dirt, waste, and ashes that had been thrown near and into said excavation and pit in the manner aforesaid; that the said minor child, while so passing between the said tramway and the said pit, slipped and fell into the said excavation or pit, and his arms, hands, leg's, and feet were so severely burned that, notwithstanding he was able to escape from said excavation or pit, he died from said injuries thus received upon, to wit, the 2d day'of June, 1911.
“Plaintiff further avers that the Southwestern Portland Cement Company, by reason of the facts aforesaid and the maintenance of said excavation in the ground, and in the use of same in the manner aforesaid, and in permitting the same to remain in the condition aforesaid, and in permitting and causing to be thrown into said excavation coals of fire, ashes, waste, and slag, as aforesaid, and in failing to warn the public of the danger in said excavation, and in failing to fence, or otherwise guard the same, was guilty of negligence, and such negligence of the said defendant amounts to creating and maintaining a nuisance, and said pit or depression, so used, it might not lawfully maintain to the great danger of the public, and was the proximate cause of the injury to the minor son of plaintiff, and but for the negligence of the Southwestern Portland Cement Company, here-inabove alleged, plaintiff’s minor son could not have fallen into said excavation, and would not have been injured and hilled.”

By the first assignment of error, appellant complains of the action of the trial court in overruling the general demurrer. In our opinion, the allegations of the petition fail to charge facts from which it could be inferred that the deceased was upon the appellant’s premises by its invitation, either express or implied. On the contrary, by proper analysis of the allegations, it affirmatively appears that the deceased was upon the appellant’s premises by mere permission or acquiescence, and would be therefore a licensee. It is expressly charged that he was passing along the footpath used by pedestrians for the purpose of performing an errand to one of appellant’s employes. The errand mentioned consisted of carrying a lunch to said em-ployé at the appellant’s plant. It has been said that it is sometimes difficult to determine whether the injured party is a mere licensee, or whether he is upon the premises by an implied invitation, or by the allurement or enticement of the owner of the premises. The underlying distinctions appear to be that an invitation is to be inferred where there is a common interest or mutual advantage; while a license is to be inferred where the object is the mere benefit or pleasure of the persons using the premises. Galveston Oil Co. v. Morton, 70 Tex. 401, 7 S. W. 756, 8 Am. St. Rep. 611.

In Dobbins v. M., K. & T. Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, it is said that:

“The common law imposes no duty upon the owner to use care to keep his property in such condition that persons going thereon without his invitation may not be injured. In considering the question as to whether the duty exists there is no distinction between a case where an infant is injured and one where the injury is to an adult? though where the duty is imposed the law may exact more vigilance in its discharge as to the former. If there be no duty, the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby. Since the common law imposes no duty on the railroad to use care to keep its right of way in such condition that persons going thereon without its invitation may not be injured, and since there is no evidence in the record from which the jury could have found such an invitation to the child, it was no more liable in law for its death than would have been a neighbor had it wandered into his uninclosed lands and been drowned in his tank or creek or been killed by falling down his precipice.”

It may be then said as a general rule as to the liability of the owner of premises for injuries received by a person entering thereon, by reason of the unsafe condition of the premises, that the owner or occupier of the premises who, expressly or impliedly, entices or invites persons to go upon the premises for any purpose, is under, a duty to exercise ordinary care to render the premises reasonably safe for such purposes, or at least abstain from any act that will make the entry upon or use of the premises dangerous, but that mere permission to pass over dangerous lands or acquiescence in such passage for the benefit and convenience of the licensee creates no duty on the part of the owner, except to refrain from acts willfully injurious. Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. Law, 378, 39 Atl. 675.

Applying the foregoing rules, then, we are of the opinion that the defendant company was under no obligation to keep its premises safe for the use of the decedent, and we are also of the opinion that the carrying of a lunch to an employé of the company was for no common interest or mutual advantage, whereby the company would be in any manner benefited. The decedent was not there by the invitation of the company — either express or implied — but was there about a matter in which the company had no concern, and was therefore a mere licensee.

The facts in Fitzpatrick v. Cumberland Glass Mfg. Co., supra, are quite similar to those in the instant case. In that case, plaintiff’s father was an employé of the defendant company, and plaintiff, who was a boy 12 years of age, was accustomed to carry his father’s dinner to him at the company’s works. The carrying of lunches to his father was done, not only with the knowledge of, but by the permission of, the company. On the day upon which the plaintiff received his injuries, he carried his father’s dinner to the works as usual, and as he passed through the main gateway, one of the gates, which had been allowed by the company to get out of repair, fell upon him, crushing his leg. The court said:

“Applying the rule established by these cases to the case in hand, it will at once be perceived that the defendant company was under no obligation to keep its premises safe for the use of the plaintiff. He was not there by the invitation of the company, express or implied. He was there about a matter in which the company had no concern, i. e., the bringing of his father’s dinner, and was saved from being a mere trespasser only by the fact that the company permitted him to come upon its premises for that purpose. lie was a mere licensee. His presence on the company’s land being merely permissive, and not by invitation, the only duty which the company owed Mm was to abstain from acts willfully injurious. That they failed in the performance of any such duty is not pretended in this case.”

So in the instant case, tlie decedent being a mere licensee and not on the premises by an invitation of the appellant, we are of the opinion that the allegations are insufficient to ■ show liability upon the part of the appellant, and the court erred in its failure to sustain the general demurrer.

For the reason indicated, the cause should be reversed and remanded. Reversed and remanded.