text:
    WEST v. KIRBY LUMBER CO.
    (No. 7156.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 2, 1917.
    Rehearing Denied March 1, 1917.)
    1. Brokers <&wkey;86(l) — Express Contract for Commission — Evidence.
    In an action by broker for commission for the purchase of land, evidence held to show that purchaser made an express contract to pay commissions to broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117,. 118.]
    2. Brokers <&wkey;44 — Principal’s Right of Revocation.
    In the absence of an express contract to the contrary, an employer may, in good faith, revoke a broker’s authority while negotiations remain unsuccessful and before commissions are earned.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45.]
    3. BROKERS &wkey;44^-REV0CATI0N 03? AUTHORITY — SUBSEQUENT SERVICE — COMPENSATION.
    Subsequent services by a broker whose authority has been revoked by purchaser does not entitle him to commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45.]
    4. Brokers <&wkey;S8(2) — Contract for Commission — Revocation—Evidence,.
    In an action by broker for commission on a purchase of land, evidence of revocation held sufficient to require submission to jury.
    [Ed. Note. — For other eases, see Brokers, Cent Dig. §§ 128, 129.]
    Appeal from District Court, Harris County; Olías. E. Ashe, Judge.
    Action by W. W. Wc-st against the Kirby Lumber Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Campbell, Sewall & Myer, of Houston, and Smith, Crawford & Sonficld, of Beaumont, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   LANE, J.

The nature of the case and proceedings of the trial in the lower court will appear from the statement set out below, which is largely copied from the brief of ap-pellee, and which we think is substantially the same as made by appellant and is supported by the record, to wit:

The plaintiff, in the month of November, 1912, contemplated purchasing the sawmill plant, planing mill and appurtenances thereto, belonging to Simmons Bros. Lumber Company, a copartnership composed of E. C. and R. M. Simmons, situated in Jasper county, Tex., and the pine timber owned by R. C. Conn on various tracts of land in Jasper county, the said timber being embraced in a certain cutting or stumpage contract between R. C. Conn and Simmons Bros. Lumber Company of date November 22, 1911.

The cutting or stumpage contract referred to was between R. C. Conn, Simmons Bros. Lumber Company, and Chicago Lumber & Coal Company of Texas, a corporation. It conveyed to Simmons Bros. Lumber Company the sound merchantable pine timber 10 inches in diameter and upwards, measured 18 inches from the ground, on all pine timber where Conn’s purchasing contracts would permit and all other sound merchantable pine timber 12 inches in diameter and upwards measured likewise, on about 38 tracts of land in Jasper county. The contract covered, in addition, all other pine timber which Conn should thereafter purchase during the life of the contract contiguous to said described land. Simmons Bros, agreed to pay Conn $4.50 per thousand feet for the timber, payments to be made on the 10th day of each month. Simmons Bros, further agreed to cut 600,000 feet of timber per month and pay for that much every month whether cut or not in addition for all cut in excess of that amount. Failure to make payment at the time provided for was to work a forfeiture of the contract at Conn’s option. Simmons Bros, were required to cut all timber at a height not more than 18 inches from the ground and to cut all timber clean off of each tract, when cutting should be once begun on a tract. Simmons Bros, were required to cut last the timber on tracts 1, 2, and 3. Sealers agreed upon were to be paid one-half by Conn and one-half by Simmons Bros. Scalers not agreed upon were to be paid by the party employing them. The Devant-Herrin scale stick was to be used. Simmons Bros, could not cut any of the timber until they had first cut the timber covered by a prior contract between the parties, but were required to commence cutting this timber immediately after the timber embraced in the prior contract had been cut. Simmons Bros, could buy no timber to be cut by them at their mill during the life of the contract, except from Conn at $4.50 per thousand. ■ The Chicago Lumber & Coal Company guaranteed the payments by Simmons Bros, to Conn.

The plaintiff at said time, to wit, in November, 1912, called upon Mr. B. F. Bonner, vice president and general manager of the Kirby Lumber Company, with a view to obtaining from the Kirby Lumber Company a right of way over its lands should he consummate his purchase of said Simmons Bros.’ mill and Conn timber, and was advised by Mr. Bonner that the Kirby Lumber Company would not grant such right of way. Mr. Bonner stated to the plaintiff that if plaintiff could buy the property for the Kirby Lumber Company, the company would compensate him if it was bought, and asked plaintiff to negotiate for the Kirby Lumber Company if it was satisfactory with Mr. Kirby, the president of the company, and stated, further, that he would take the plaintiff in to see Mr. Kirby.

The plaintiff thereupon went in to see Mr. Kirby, and, after discussing the matter, the agreement which he and Mr. Kirby arrived at, stated in his language, was as follows:

“Mr. Kirby told me he would like for me to go over there and get a proposition on it, develop the facts in connection with it, and that if the Kirby Lumber Company purchased it, they would compensate me for my services. The negotiations were to be conducted in my name, as there was an impression out in some way that there was not the best of feeling between the' Kirby Lumber Company, or Mr. Kirby personally, and Mr. Conn. I suppose I suggested that the negotiations be conducted in my name; I know it was understood that they were to be; Mr. Kirby agreed to that.”

Thereafter the plaintiff, having been referred by Simmons Bros, to John B. Warren of Houston, went to Kirbyville in Jasper county with Mr. Warren. At Kirbyville he saw R. M. Simmons and Eugene Simmons (Simmons Bros.) and R. O. Conn. He stayed at Kirbyville two or three days, and while there went out to the said mill. He looked around there, but did not spend any great amount of time in the mill. He did not take any inventory of the mill property. Simmons Bros, just told him what they had. He looked over the Conn timber on the same trip, riding horseback in doing so. He rode over the timber and inspected the mill a good long time before he came to see Mr. Bonner about getting a right of way. He thought Mr. Kirby would have the timber cruised before buying it. He and Warren, at the hotel at Kirby-ville, made some figures as to the different quantities of timber on the tracts of land, but he did not preserve the figures.

Simmons Bros, and Conn did not make any proposition to plaintiff in writing. Several propositions were talked over, and Simmons Bros, said they preferred to sell outright and sell it unincumbered — to sell it for a price sufficient to pay off its indebtedness and sell it unincumbered. Conn was not friendly to it, and did not favor the sale of the mill. Plaintiff did not remember whether or not Conn made a proposition as to what he would take for the timber, and did not believe he had gotten a proposition from Conn. Mr. Warren testified, and the plaintiff did not dispute the testimony, that along about the latter part of the negotiations he and the plaintiff went to Mr. Conn’s private office over the latter’s bank at Kirbyville to ascertain whether Mr. Conn would consent to an assignment by Simmons Bros, of their contract with Conn, and that Mr. Conn, refused to do it. Mr. Warren further testified that Mr. Conn was very much opposed to an assignment of said contract.

The plaintiff finally got from Simmons Bros, “a proposition to sell to Mr. Kirby the whole works, timber and all; Simmons Bros, were to sell the timber and mill and pay Mr. Conn off out of the proceeds. The price was $360,000.” The terms were not agreed on. Plaintiff just got a price of $360,-000.

Mr. Warren testified, and his testimony was not disputed by plaintiff, that in his office in Houston, before he and plaintiff went to Kirbyville, he told plaintiff that Simmons Bros, claimed to have 60,000,000 or 65,000,000 feet of timber up there, and that sawmill and considerable lumber on the yards, and they wanted $360,000 for the timber, mill, and lumber and everything connected with the plant. Mr. Warren further testified, and his testimony in this respect, was not disputed by plaintiff, as follows:

“Mr. West made a statement to me at that time as to what he thought of the $360,000 price. Of course, he thought that was too much. That price was based on an estimate of 60,000,000 or 65,000,000 feet of timber, and when Mr. West found out there was only in his judgment about 37,000,000 feet, or not over that, he thought $360,0OO was too much, and stated that to me quite often, and I thought so too. Mr. West did not succeed in getting a proposition of any less figure than $360,000 when he was there at Kirbyville. We never succeeded in getting any less direct proposition. We went to Mr. Conn and talked to him with the idea of trying to convince him there was not any 60,-000,000 or 65,000,000 feet of timber there, and there was not any 50,000,000 feet there. Mr. Conn’s estimate was that there was about 50,-000,000 or 55,000,000 feet, and we argued with him that the arbitrary price he had put on his interest in the timber was too much. Mr. Conn wanted $200,000 in cash for the timber.”

After the plaintiff “got the price” of $360,-000, he came back to Houston. He told Mr. Kirby it was not a good price. He told Mr. Kirby that the price he “got was $360,000 for the Conn timber and the Simmons Bros, mill.” He did not consider the $360,000 proposition a good price because they did not have the timber. He testified in this connection as follows:

“The $360,000 proposition contemplated the purchase of the Conn timber. It contemplated the purchase of the entire property from Simmons Bros. — and they were to pay Conn — in other words, unincumbered. The Conn timber was to be soid outright. I told Mr. Kirby that I thought the better way to handle it would be to buy the Simmons Bros, mill and take up this contract.”

Plaintiff does not fix the date of this conversation with Mr. Kirby. Mr. Warren testified, and plaintiff did not dispute the fact, that he came back from Kirbyville as far as Beaumont with plaintiff, and that he got back to Houston on Sunday night; that he did not call on Mr. Kirby the next day, but called on Col. Ball and told him he thought there was a chance for the Kirby Lumber Company to get that timber; that Col. Ball tried to get Mr. Kirby on the telephone, but Mr. Kirby was in Chicago, and Col. Ball asked him to wait until Mr. Kirby got back. Mr. Warren further testified:

“When Mr. Kirby got back, the very day he got back, I went up to see him and told him that there was a chance for him (Kirby) to-buy that timber, and I told him I thought he ought to have it; that his mill was there at Kirbyville and his tram ran through this timber, and he was in a position to pay more for it than anybody else, and that I was authorized to present it to him on a basis of $360,000 for the mill, the lumber and the timber, and that Simmons Bros, had given me that price on a basis of there being 60,000,000 or 65,000,000 feet of timber there. My conversation with Mr. Kirby was not very long. He just simply told me: ‘If there is that much timber there, I will take it — all I want is about two or three weeks to have it estimated by Weathersby.’ ”

Mr. Warren further testified:

“Mr. West had not said anything to me about1 whom he was getting a price for up there at Kirbyville. I did not know at the time I called on Mr. Kirby that Mr. West had any connection in the world with Mr. Kirby in the matter at all, and did not have even a suspicion of it. Nothing was said at the conversation I had with Mr. Kirby with reference to Mr. West’s having gotten a price for him.”

When plaintiff told Mr. Kirby that he did not consider the $360,000 price a good pricer that it was too high, Mr. Kirby said he could-not tell about that until he had it estimated— until he had a detailed estimate made of it— until he had it “cruised.” Mr. Kirby said he would send Mr. Weathersby over and have a cruise made of it. Plaintiff testified that he agreed with Mr. Kirby that there should be more of a detailed estimate than plaintiff had furnished, and that Mr. Kirby told him that he was going to send timber estimaters up there to go carefully over each tract.

It was alleged by the plaintiff, and plaintiff testified that the allegation was true, that he was advised that Simmons Bros. Lumber Company, not knowing the fact that the Kirby Lumber Company was the intended purchaser, and that the negotiations theretofore conducted between the said Simmons Bros. Lumber Company and the plaintiff were for and in behalf of the Kirby Lumber Company, intended to open negotiations with the Kirby Lumber Company looking to the sale of the property to it. He testified that Mr. Warren told him that he (Warren) was going to Kirby.

It was further alleged by plaintiff, and also testified by him, that thereupon he so advised the defendant Kirby Lumber Company, through Mr. Kirby, and “it was deemed best that the plaintiff stand aside and let the negotiations be conducted thereafter directly between ’Simmons Bros. Lumber Company and the defendant Kirby Lumber Company.”

Under date of November 28, 1912, R. M. Simmons and E. O. Simmons (Simmons Bros.) submitted to Mr. Kirby the following proposition in writing:

“As a result of our conference with you in your office in Houston on last Tuesday, we herewith make you an offer on our timber holdings, mill, live stock, lumber, etc. Eor a consideration of $360,000.00 to be paid us by you in cash or one-half cash and the balance in short term notes, which must be acceptable to us, deferred payment to bear legal rate of interest, we hereby agree to transfer to you all our rights, title and interest to the following property: All the timber included in the contract between R. C. Conn and E. C. and R. M. Simmons of date November 22, 1911, subject to the tenor of the deeds of acquirement of R. C. Conn, that is, it being our intention to deed or to have deeded to you all the rights of the said R. C. Conn and E. C. and R. M. Simmons, also all rights with reference to stumpage, right of ingress and egress, etc., as recited in the deeds made to R. C. Conn by the several grantors. Be it understood that the timber included in the aforementioned contract,which R. C. Conn owns in fee simple, that is, land and timber, that eight years of time from date will be allowed in which to remove the timber and that rights of ingress and egress and other privileges necessary to the logging of the timber will be accorded. In addition to the foregoing timber, we will transfer all the timber the said R. 0. Conn has acquired contiguous to that specified in the contract before referred to upon the same conditions as recited in the contract as to time of removal, etc. approximating 964% acres. It is our intention to transfer to you all rights that we have acquired as a result of the contract of November 22, 1912, and that of an option of a later date.”

Here follows a description of the sawmill, planer, dry kiln, houses, timber, lumber, and other personal property, the offer concluding as follows:

“Would suggest that you have your men come and look the plant over. They can form an idea of its value, and can better acquaint you with our holdings than we can by letter. This offer will remain in full force and effect until December 15, 1912, and will after that date become null and void.”

Plaintiff’s witness, R. M. Simmons, with reference to said proposition in writing, testified:

“Attached to said proposition is a proposition to E. O. and O. R. Simmons (who are Simmons Bros.) from R. O. Conn, of date November 27th, which is the day before our proposition to Mr. Kirby, November 28th. * * * That was an agreement between Mr. Conn and myself with reference to the way we could settle, provided it was sold to Mr. Kirby, and before I made that proposition to Mr. Kirby I wanted to know what Mr. Conn would agree to, because I did not want to make Mr. Kirby a proposition until I was satisfied everything was agreeable with Mr. Conn, and that I could turn over to Mr. Kirby what I agreed to do.”

The witness further testified that at the conversation he had with Mr. Kirby about the $360,000 proposition, which was in the latter part of November, Mr. Kirby stated that if the deal was made he would have to take care of Mr. West in the matter; he would have to pay Mr. West a commission.

Plaintiff testified that after he went to Kirbyville and secured the proposition, the next he heard from the proposition he had a letter from Mr. Kirby in answer to a letter from him. In his letter to Mr. Kirby, dated December 10, 1912, he said:

“Now as the Simmons Brothers have taken the matter up with you direct, I would like to know what position you take in the matter as regards my interest in it. As the understanding with you was that in case you purchased the property that I was to get a commission on it, I would like to know whether you would now consider that I am entitled to the commission since you have commenced negotiations with them direct. As stated to you I was in the market for something like this, but that if you wanted it, I would assist you to get it and would not make any offer only as your agent, but now if you think otherwise, I wish you would so advise me, in order that I may feel absolutely free to negotiate with them in my own capacity, if I should desire to do so.”

Mr. Kirby replied by letter the following day, saying:

“I think I understand conditions clearly and I have no disposition to do other than as we first talked, that is in the event the deal is of interest to me to compensate you for your trouble as far as you have gone. I should like to have you indicate to me, however, just what you think this compensation should be. As explained to you at our interview on Monday, I cannot tell whether this deal will be regarded by our people as desirable until our cruisers have completed an estimate of the timber involved. I have made no commitment to anybody to purchase the property on any basis and am only considering the purchase to the extent of having the timber cruised — when that work is completed we shall come to a prompt decision as to whether the purchase interests us and that decision will be somewhat influenced by the amount of compensation you expect out of the deal.”

Tlie plaintiff replied on December 13th as follows:

“I advised you that the Conn proposition would not interest me, but for a commission I would look into it and see if a satisfactory deal could be worked up for you. I will make this commission on a 2%% basis on the entire amount of the. purchase price from both Conn and Simmons, but I would want you to -advise me as soon as you have come to a decision in the matter as to whether you will take it or not.”

Mr. Kirby on the same day, answered this letter as follows:

“I note that in the event we purchase the Simmons Brothers Lumber Company property you will expect a commission of 2% % upon the purchase price paid for the entire property whatever it may be. I shall consider the negotiations with this in mind and in the event of any deal under the proposition now pending your commission will be paid.”

Under date of December 16th, Mr. Kirby wrote Simmons Brothers as follows:

“We did our best to conclude the cruise of the Conn timber before the 15th, but it could not be accomplished and do the work in a thorough manner. I am just now in receipt of Mr. Weathersby’s estimate of the timber and I write to advise you that at the price quoted, namely, $360,000.00 for the entire property, we could not entertain the purchase.”

On the same day, Mr. Kirby .wrote the plaintiff inclosing a copy of this letter to Simmons Bros., and saying:

“I do not think from what Simmons Brothers said to me that there is any likelihood whatsoever that we will get together on any deal, so, if you wish to open negotiations for your personal account, you are at liberty to do so, so far as we are concerned.”

The plaintiff’s witness R. M. Simmons testified :

“When I put the $360,000 proposition up to Mr. Kirby, covering the Conn timber and the Simmons Bros, mill and properties, X do not know whether I said to Mr. Kirby that that was the final figure on it. The way I figured it, the amount which Mr. Conn expected to get for his timber placed me in a position where I could not make a proposition of less than $360,-000. I considered my property was worth so much, and Conn wanted so much. I think that one proposition Mr. Conn made to us for his timber was something like $195,000, if I remember right. The proposition I first made Mr. Kirby contemplated the outright fee-simple sale of the Conn timber and of our properties. As I stated in that contract, it was to clean up everything and take everything we had. It did not contemplate the Kirby Lumber Company’s buying my mill and stepping into my shoes on the Conn contract; I did not so construe it. * * * My brother disliked the idea of selling this contract out to any one else, and Mr. Conn was adverse to it.”

Under date of December 17, 1912, the plaintiff wrote a letter to L.. J. Boykin, of Houston, who was then general manager of the Chicago Lumber & Coal Company of Texas. In this letter, after referring to the trade between Mr. Kirby and Simmons Bros. Lumber Company, he said:'

“I have advice from Mr. Kirby several days ago that he was having the timber estimated, and as soon as he had completed it he would be ready to take up the trade... He indicated, however, that he, thought the proposition they had made him was such that it would be hard for them to get together, unless it was materially reduced.. He stated, I believe, that they had made a price of $360,000 for the property unencumbered.”

He then suggested that Mr. Boykin, if he had sufficient interest in the matter, talk the matter over with Simmons Bros, and see if he could not get them to agree to deal with Mr. Kirby on the basis of having him succeed to their rights in the stumpage contract with Conn, letting Mr. Kirby pay Conn and pay Simmons Bros, a bonus of 50 cents per thousand feet for the timber and an agreed price for the improvements.

On December 20, 1912, Simmons Bros, wired Mr. Kirby, inquiring whether they could see him in Houston on the following Monday, which was December 23d, and Mr. Kirby replied by wire in the affirmative. On December 21, 1912, L. J. Boykin mailed to Simmons Bros, at Kirbyville a copy of the plaintiff’s letter to him of date December 17th.

The plaintiff’s witness R. M. Simmons testified :

“I received the letter from Mr. Boykin [meaning the one inclosing copy of plaintiff's letter of December 17th] on Sunday. I reached Houston that Sunday night (December 22nd). With respect to how long before I saw Mr. Kirby, it was that I had conceived the idea of making a deal with him by having him step in my shoes in the Conn contract, 'after I received Mr. Kirby’s letter. Then I began to figure on how Mr. Kirby and I could get together, and the thought occurred to me — knowing, however, that my brother objected to it. That thought was one of the reasons that caused me to send the telegram to Mr. Kirby. I thought possibly I might get together with him on the original proposition. The thought had also occurred to me that I might be able to make a deal with Mr. Kirby or with the Kirby Lumber Company, by having it step into my shoes on the Conn contract, and then I sent the telegram to Mr. Kirby and made an appointment with him for another date. As to whether when Mr. Kirby wrote me the letter of December 16th and said he could not entertain the purchase, ho did not ask me to come and meet him at any time or anywhere and discuss the matter with him. I do not remember the contents of said letter. If he did not ask me to do so in that letter, he did not otherwise ask me to do so. Mr. Kirby did not seek an appointment with me at a subsequent date; I am the man who sought the appointment.”

This witness further testified:

“I came to see Mr. Kirby on December 23d because it developed we could not make the trade on the basis of $360,000. * * * I do not know whether I offered to make any deduction in the $360,000 or not; possibly I did,; I do not remember that circumstance. * * * I should think it had resolved itself into the proposition that when I got to Houston I had dropped the $360,000 proposition and consulted with Mr. Kirby with reference to a different sort of proposition. Originally the suggestion of Mr. Kirby’s taking the mill and stopping into my shoes in this Conn contract came from me. I put that proposition to Mr. Kirby myself; that is I thought of the proposition originally, but then there were other reasons why I did it. It was after conference with my associates. I do not know whether that proposition occurred to me before it did to anybody else or not.”

With respect to the conversation between Mr. Kirby and Mr. Simmons on December 23d, and the result thereof, Mr. Simmons testified :

“The substance of said conversation was that we were unable to get together with Mr. Kirby on the original proposition, and we came at him with a different proposition, and as a result of that different proposition we were, after discussing the proposition with Mr. Kirby turned over to Mr. Bonner and Mr. Myer.”

As a result of the discussion between Mr. Simmons, Mr. Bonner, and Mr. Myer, it was agreed that the Kirby Lumber Company should take over the Simmons Bros.’ holdings, together with their contract with Conn for the price of §100,000, under the condition that Simmons Bros, were to have what they said they had, the Kirby Lumber Company reserving the right to look the property over, and the proposition being subject to Mr. Kirby’s concurrence. The further understanding was that if the proposition went through, Simmons Bros, were to operate the mill from that time on, as of date December 23, 1912, for the benefit of the Kirby Lumber Company, on a salary basis for the two brothers. About 8 or 9 o’clock on same night, after Mr. Bonner had seen Mr. Kirby, he notified Simmons that the proposition just mentioned ,was accepted. On the following day, December 24, 1912, Mr. Bonner wrote the plaintiff as follows:

“Referring to the Simmons Brothers deal: Mr. Kirby has already advised you that we turned the matter down and stated to you that if you were interested personally for you to negotiate with them on your own account. We accordingly notified Simmons Brothers that the matter was of no further interest to us. It seems now that Simmons Brothers desire to deal with us on an entirely different basis and have so approached us. We may be disposed to consider the matter on this present basis, but in doing so, it is fair to you to state that it does not include any commission to you from us, and if we go forward with the deal on the new basis, we will not expect to pay you any commission. If you wish to consider the purchase of the property for your own account, advise us, and we will keep out.”

The plaintiff answered, under date of December 28th, as follows:

“I do not think the position you take with reference to the Simmons matter is correct, and I shall expect settlement upon the basis of Mr. Kirby’s letter of the 13th inst., if you should buy it. I do not think I would be open to negotiate for the purchase of the Simmons’ property now, as immediately after I received Mr, Kirby’s letter I made arrangements which will now conflict with the ‘purchase of this property.”

On January 29, 1913, the deal with Simmons Bros. Lumber Company was consummated by an instrument in, writing, whereby Simmons Bros., for a consideration of $100,-000, conveyed to Kirby Lumber Company their sawmill and other personal properties, and assigned to Kirby Lumber Company their contract with R. C. Conn,- the obligations of which .the Kirby Lumber Company assumed. R. .C. Conn was in no way .a party to the transaction. Thereafter' the plaintiff wrote the Kirby Lumber. .Company, a'letter, demanding. k commission of $5,9,91.20. .Appellant, West, sues for $7,000, the sum which he alleges is due by the Kirby Lumber Company under the contract alleged by him, the same being 2ya per cent, on the $100,000 paid by the Kirby Lumber Company for the mill, and 2% per cent, on $180,000, estimated to be paid by the Kirby Lumber Company for the Conn contract, aggregating 2y2 per cent, on $280,-000. Appellant also, prayed that, in the event the court should hold that he could not recover under the alleged contract, he be permitted to recover on the quantum meruit.

Appellee, the Kirby Lumber Company, contends that the proposition of sale obtained by West from Simmons Bros. Lumber Company was rejected by it; that West was notified of such rejection, and that he was also notified that his services were no longer desired by the Kirby Lumber Company in connection with the purchase of said properties, and that he was at liberty to negotiate such purchase for himself if he so desired, and that thereby the former contract and agreement between the Kirby Lumber Company and him was in good faith revoked, and terminated before appellee purchased said properties, and therefore appellant, West, is not entitled to recover in this cause. It further contends that if appellant did any act or thing, intending to bring about the sale to it, or which did in fact aid in bringing about said sale, after said revocation, Which it denies, said plaintiff was a mere volunteer in so acting, and therefore appellee is not liable to plaintiff on the quantum meruit.

Appellant, West, pleaded by supplemental petition that said contract was not revoked by the Kirby Lumber Company in good faith, but that it attempted to revoke same to avoid payment of commissions to West.

After hearing the evidence, the trial court peremptorily directed the jury selected to try said cause to return a verdict for the defendant, Kirby Lumber Company, which they accordingly did.

The only question presented for our determination is: Was there sufficient evidence to require the court to submit the case to the jury?

As before shown by the preliminary statement herein, John H. Kirby, for the Kirby Lumber Company, employed appellant, West, to negotiate with Simmons Bros, for the purchase of their properties, together with the Conn timber, for said Kirby Lumber Company, and that it was agreed between Kirby and West that said negotiations should be conducted in the name of West; that West began negotiations as agreed upon; that while said negotiations were going on West learned that Simmons Bros, were going to, approach the-Kirby Lumber Company direct with a view of selling said properties to it, without having learned that West was negotiating for said lumber company. There'upon West wrote John I-I. Kirby that Simmons Bros, would take the matter up with his company direct, and that he thought it advisable for him to stand aside and let the negotiations proceed directly between said Lumber Company and Simmons Bros. After such negotiations had been going on for some time, appellant, West, on the 10th day of December, 1912, wrote Kirby that as the understanding between them was that in case he purchased the properties for his company he, West, was to get a commission on the purchase price, he would like to know whether Kirby considered that he, West, was entitled to a commission, since Kirby had commenced negotiations directly with Simmonq Bros.; that he wanted to be advised of Mr. Kirby’s attitude in the matter in order that if he was not to get a commission in case the Kirby Lumber Company should purchase, he might feel free to negotiate with Simmons Bros, in his own interest, if he so desired. Mr. Kirby replied to this letter at once, saying that he had no disposition to do other than as they first talked, and that in the event he found the deal of interest to him, Kirby, he would compensate West for his trouble as far as he had gone, and asked West to indicate to him just what he, West, thought this compensation should be. On the 13th day of December, 1912, West wrote Kirby as follows:

“I advised you that the Conn proposition would not interest me, but for a commission I would look into it and see if a satisfactory de.al could be worked up for you. I will make this commission on a 2%% basis on the entire amount of the purchase price from both Conn and Simmons, but I would want you to advise me as soon as you came to a decision in the matter as to whether you will take it or not.”

On the same day Kirby, in reply, wrote West as follows:

“I note that in the event we purchase the Simmons Brothers Lumber Company property you will expect a commission of 2%% upon the purchase price paid for the entire property whatever it may be. I shall consider the negotiation with this in mind and in the event_ of any deal un.der the proposition now pending your commission will be paid.”

Under date of December 16th, Mr. Kirby wrote Simmons Bros, as follows:

“We did our best to conclude the cruise of the Conn timber before the 15th, but it could not be accomplished and do the work in a thorough manner. I am just now in receipt of Mr. Weathersby’s estimate of the timber and I write to advise you that at the price quoted, namely, $360,000.00 for the entire property, we could not entertain the purchase.”

On the same day Mr. Kirby wrote the plaintiff, inclosing copy of this letter to Simmons Bros., and saying:

“I do not think from what Simmons Brothers said to me that there is any likelihood whatsoever that we will get together on any deal, so, if you wish to open negotiations for your personal account, you are at liberty to do so, so far as we are concerned.”

After appellant, West, received the letter of December 16th, without the request or knowledge of the Kirby Lumber Company, or any agent of said lumber company, he did some other things, unnecessary to be mentioned, in an effort to get Simmons Bros, to submit a proposition different from the one first submitted, with a hope that the two companies might get together and consummate a trade. Simmons Bros, did thereafter, to wit, on the 23d day of December, 1912, sell to the Kirby Lumber Company their mill for the sum of $100,000, and also all rights they had under the Conn timber contract, the consideration to be paid for said timber to be ascertained as provided in said Conn contract. On the following day, December 24,1912, Mr. Bonner for the Kirby Lumber Company wrote appellant, West, as follows:

“Referring to the Simmons Brothers’ deal: Mr. Kirby has already advised you that we turned the matter down and stated to you that if you were interested personally for you to negotiate' with them on your own account. We accordingly notified Simmons Brothers that the matter was of no further interest to us. It seems now that Simmons Brothers desire to deal with us on an entirely different basis and have so approached us. We may be disposed to consider the matter on this present basis but in doing so, it is fair to you to state that it does not include any commission to you from us, and if we go forward with the deal on the new basis, we will not expect to pay you any commission. If you wish to consider the purchase of the property for your own account advise us and we will keep out.”

To this letter appellant replied saying that he would expect settlement upon the basis of Kirby’s letter of December 13th above quoted. On the 29th day of January, 19.13, the Simmons Bros. Lumber Company, by an instrument in writing, conveyed to the Kirby Lumber Company their sawmill and appurtenances for $100,000, and by the same instrument assigned to said Kirby Lumber Company the Conn timber contract.

We think that it is clear from what has been stated that appellee expressly contracted and agreed with appellant that if it finally acquired the properties in question that it would pay appellant 2% per cent, commission on the purchase price of the same. We, therefore, conclude that if appellant is entitled to recover in this suit at all such recovery must be upon the express contract and not upon the quantum meruit.

Having reached the conclusion that appellant was employed by the Kirby Lumber Company to negotiate a trade with the Simmons Bros. Lumber Company, with the express agreement .that if the trade was consummated, Kirby Lumber Company would pay appellant 2% per cent, commissions on the purchase price, we think he should recover under such contract 2% per cent, on the sum of $100,000, the price paid for the mill properties, and also 2% per cent, on whatever sum may be shown by the evidence to be the value of the Conn timber contract, unless appellee, Kirby Lumber Company, rightfully and in good faith revoked and terminated the agency of appellant prior to its purchase of said properties on the 23d day of December, 1912.

The questions then are: First, did the Kirby Lumber Company revoke and terminate said agency prior to its purchase of said properties? and, second, if said agency was so revoked and terminated, was it rightfully and in good faith so revoked and terminated, not for the purpose of escaping the payment of commissions justly earned by the agent, hut for the purpose only of promoting the best interest of said Kirby Lumber Company? In vol. 4, R. C. L. pp. 316, 317, it is said:

“In the absence of an express contract to the contrary, if the employer acts in good faith, not seeking to escape the payment of commissions, but moved fairly by a view of his own interest, he has the absolute right before a bargain is made, while negotiations remain unsuccessful, before commissions are earned, to revoke the broker’s authority, and the latter cannot thereafter claim compensation for a sale made by the principal, even though it be to a customer with whom the broker unsuccessfully negotiated, and even though, to some extent, the seller might justly be said to have availed himself of the fruits of the broker’s labor. Cronin v. Am. Sec. Co., 163 Ala. 533, 50 South. 915, 36 Am. St. Rep. 88; Cadigan v. Crabtree, 179 Mass. 474, 61 N. E. 37, 55 L. R. A. 77, 88 Am. St. Rep. 397; Cadigan v. Crabtree, 186 Mass. 7, 70 N. E. 1033, 66 L. R. A. 982, 104 Am. St. Rep. 543. Once a broker’s authority has been lawfully revoked, if he continues to render any services to his former employer, they must be deemed to be voluntary, and are accordingly ineffectual to entitle him to commission on a sale made by the owner himself subsequent to such termination of his authority.” Note 139 Am. St. Rep. 229.

This seems to be the rule as established by the great weight of authority.

After a careful examination of all the evidence, we conclude that there was sufficient evidence to require the court to submit to the jury the questions as to whether the agency of appellant was revoked and terminated by appellee prior to the sale and purchase of the said properties, and, if so, was the same rightfully and in good faith so revoked and terminated, and we therefore further conclude and find that the trial court erred in peremptorily instructing the jury to find for appellee, for which error the judgment of said court is reversed and the cause remanded.

Reversed and remanded.
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source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    WEBSTER et ux. v. INTERNATIONAL & G. N. RY. CO.
    (No. 7307.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1917.
    Rehearing Denied March 15, 1917.)
    1. Appeal and Error @=3544(3) — Review in Absence op Statement op Facts.
    In the absence of a statement of facts, the appellate court may consider only such matters as specifically appear from the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2417, 2424.]
    2. Appeal and Error @=3934(2) — Absence op Statement op Fact — Presumptions.
    In the absence of a statement of fact showing the evidence, it will be conclusively presumed on appeal that the evidence sustained the judgment.
    [Ed. Note. — For other cases, see Appeal and . Error, Cent. Dig. § 3777.]
    3. Trespass to Try Title <®=6(1) — Evidence op Title — Lack op Title of Adversary.
    In trespass to try title, plaintiff must recover upon the strength of his own title, and not upon the weakness of his opponent’s.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15, 16.]
    4. Adverse Possession <3=10 — Acquisition by Railroad.
    Const, art. 1, § 17, providing that no personal property shall be taken for public use without adequate compensation first made, does not prevent a railroad from acquiring title to land by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 58-64.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Daniel Webster and wife against the International & Great Northern Railway Company. From a judgment for defendant, and from an order overruling a motion for a new trial, Lizzie Webster, the wife, in whose name the cause was prosecuted after the death of her husband, brings error.
    Affirmed.
    See, also, 184 S. W. 295.
    James Slyfield, E. H. Vasmer, C. L. Michael and Guynes & Colgin, all of Houston, for plaintiff in error. Wilson, Dabney & King and Geo. A. Hill, Jr., all of Houston, for defendant in error.
   GRAVES, J.

This was a suit of trespass to try title by Daniel Webster and wife, Lizzie Webster, for the recovery of the land involved in controversy, but upon the death of her husband Lizzie Webster was authorized to prosecute the same in her own name and in her own right. Plaintiff claimed under the 10-year statutes of limitation; while defendant, after categorically denying all allegations of plaintiff’s petition, interposed the pleas of the 3, 5, and 10 year statutes of limitation. Plaintiff, by supplemental petition duly filed, urged demurrers to the respective pleas of limitation on the part of the railway company, on the ground that a railway company was without authority of law to acquire title to land by adverse possession and without paying the owner thereof its just value, consonant to the provisions of the Constitution of Texas., These demurrers were overruled, and the case was tried with the intervention of a jury; but on motion, made by defendant company, the court peremptorily instructed the jury as follows:

“You are instructed that, if the plaintiff has ever had title to the land sued for, then that her title, if any, has been barred by limitation in favor of the defendant. Therefore you will return your verdict for the defendant.”

Pursuant thereto, the jury properly returned its verdict for defendant, upon which the court entered judgment in its favor and against the plaintiff for the land sued for. Plaintiff' filed a motion for new trial, which was in all things overruled by the court, to which plaintiff duly excepted and gave notice of appeal, and duly filed her petition for writ of error to this court.

No statement of facts is before us, none having been filed in the trial court, but the transcript contains both the order of the trial court overruling plaintiff’s demurrers and exceptions to the pleas of limitation as set up in defendant’s answer, and her bill of exceptions to the action of the court in so overruling her demurrers and special exceptions. It thus appears from the record that both parties below plead the statute of limitations; that the plaintiff filed demurrers and special exceptions to the said pleas of limitation filed by the defendant, on the ground that it was a railway corporation under the laws of Texas, and as such was without authority of law to acquire title to land by limitation; that the court overruled said demurrers and exceptions, and peremptorily instructed the jury to find for the defendant railway company upon the specific ground that, if plaintiff had ever had any title to the land, it had been barred by limitation in defendant’s favor.

While the railway company, defendant in error, vigorously objects to this court’s considering plaintiff in error’s brief, or her appeal, for the reason that, as stated, no statement of facts was filed, as a general rule, we think its objection well taken; but because of the fact that the exact action of the court here appears otherwise of record, notwithstanding the absence of a statement of facts, we conclude that we should consider the assignments. But in doing so, in the absence of a statement of facts, we are certainly precluded from in any manner going into the question of who had title to the land. Ajax-Grieb Rubber Co. v. Hubbard, 181 S. W. 568; Smyer v. Railway Co., 154 S. W. 336; Connally & Shaw v. Saunders, 142 S. W. 975; Railway Co. v. Barrett, 45 Tex. Civ. App. 73, 100 S. W. 800, affirmed 102 Tex. 579; Hines v. Sparks, 146 S. W. 289, application for writ of error dismissed 106 Tex. 632; Harbert’s Adm’r v. Henly, 31 Tex. 666; Pioneer Lumber Co. v. Smither, 135 S. W. 705; Ivy v. Ivy, 51 Tex. Civ. App. 397, 112 S. W. 110; Hess v. Webb, 113 S. W. 618.

Furthermore, it is conclusively presumed, in the absence of any statement of facts showing what the evidence was, that the evidence sustained the judgment of the trial court. Hunton v. Nichols, 55 Tex. 225; Baldridge v. Penland, 68 Tex. 442, 4 S. W. 565; Bk. III, Tex. Notes, 850; Cabell v. Floyd, 21 Tex. Civ. App. 138, 50 S. W. 478; Hackney v. Schow, 21 Tex. Civ. App. 616, 53 S. W. 713.

There is, therefore, no showing whatever in this court that plaintiff in error ever had the slightest title to said land, but she assumes that the trial court, in instructing the jury as it did, necessarily found that she had title, while this in no manner follows. One of the fundamental rules in trespass to try title is that the plaintiff must recover upon the strength of her own title, and not upon the weakness of her opponent’s title. Hillmann v. Meyer, 35 Tex. 538; Jones v. Lee, 41 S. W. 195; Soape v. Doss, 18 Tex. Civ. App. 649, 45 S. W. 387; Willoughby v. Townsend, 18 Tex. Civ. App. 724, 45 S. W. 861; Allen v. Worsham, 50 S. W. 157; Peterson v. Renner, 51 S. W. 867; Smith v. Rothe, 55 S. W. 754; Trevy v. Lowrie, 40 Tex. Civ. App. 321, 89 S. W. 981; Jaggers v. Stringer, 47 Tex. Civ. App. 571, 106 S. W. 151; Brown v. Orange County, 48 Tex. Civ. App. 470,107 S. W. 607; De Roach v. Clardy, 52 Tex. Civ. App. 233, 113 S. W. 22; Bailie v. Western Live Stock & Land Co., 55 Tex. Civ. App. 473, 119 S. W. 325; Murphy v. Luttrell, 56 Tex. Civ. App. 149, 120 S. W. 905; White v. McCullough, 56 Tex. Civ. App. 383, 120 S. W. 1093; Ward v. Nelson, 62 Tex. Civ. App. 281, 131 S. W. 310; Lefevre v. Jackson, 135 S. W. 212; Skov v. Coffin, 137 S. W. 450; Staley v. King Bank & Mer. Co., 144 S. W. 308. Nor did the defendant in error unconditionally admit that it had acquired plaintiff in error’s title by limitation, as is mistakenly stated by her, but its statement was merely:

“The undisputed evidence showed that defendant acquired title to the land in question by adverse possession under the 3, 5, and 10 year statute of limitation.”

Since the four assignments of plaintiff in error, in varying forms, state but a single question, they will be treated as one. Her position is thus summarized: That the court erred in overruling her exceptions to the defendant’s answer setting up the different statutes of limitation, because this defendant, being a railway corporation, is required by article 1, § 17, of the Constitution of Texas to pay for the land of plaintiff before it acquires a legal right to use the land for public purposes. In support of this position she maintains that:

“Because a railway corporation is a creature of the statutes, and as such must derive all of its powers and authority from the law; and as the statutes of this state restrict its acquisition of property to two ways, that is, by deed or condemnation proceedings, the defendant was without authority of law to enter upon'the land of plaintiff, and by holding the same adversely acquire the title for itself by limitation.”

It is thus again seen, in the face of the record, that her entire contention rests upon the erroneous assumption that she in fact had title and had so shown; if she had shown that, a very different situation would be presented here. But, even considering her contention as an abstract proposition, we know of no such limitation on the manner in which a railway corporation may acquire title to land; upon the contrary, it has been frequently held by our courts that the statute of limitation did not make any exceptions as to corporations, and that a railway company may obtain title, either to “easements,” or in fee simple, under them. This being true, it necessarily follows that the acquisition of the title to the land in controversy in this suit by the railway company under the statutes of limitation was in a lawful manner, and hence was not a “taking” within the meaning of article 1, § 17, of the Constitution of Texas. G., C. & S. E. Ry. Co. v. Brandenburg, 167 S. W. 170; Buchanan v. H. & T. C. Ry. Co., 180 S. W. 625; Kingsley v. Kerr, 135 S. W. 161; Small v. McMurphy, 11 Tex. Civ. App. 409, 32 S. W. 788; Moore v. City of Waco, 85 Tex. 206, 20 S. W. 61; Stanley v. Schwalby, 147 U. S. 508, 13 Sup. Ct. 418, 37 L. Ed. 259; Norris v. City of Waco, 57 Tex. 635; Click v. Lamar County, 79 Tex. 124, 14 S. W. 1048; City of Austin v. Hall, 93 Tex. 596, 57 S. W. 563.

Finding no error in the judgment of the trial court, it will be in all things affirmed.

Affirmed.

       other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    POPHAM v. EGGLESTON et al.
    (No. 664.)
    (Court of Civil Appeals of Texas. El Paso.
    March 8, 1917.
    Rehearing Denied March 29, 1917.)
    1. Frauds, Statute oe <@=»60(2) — “Interest in Land” — Maintenance oe Irrigation Dam.
    An easement to maintain an irrigation dam on another’s land and against his wish is an interest in land within statute of frauds (Rev. St. 1911, art. 1103), and must be created in writing.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 95.
    For other definitions, see Words and Phrases, First and Second Series, Interest in Property.]
    2. Frauds, Statute oe <S=ml2©(3) — Performance-Irrevocable License.
    To sustain an alleged easement to maintain an irrigation dam on another’s land by possession and performance, no written grant being claimed, an irrevocable license must be shown.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 289^-291.]
    3. Waters and Water Courses <®=»157 — Maintenance of Irrigation Dam — Irrevocable License — Sufficiency of Evidence.
    Evidence showing that a ranch foreman of plaintiff’s predecessor invited defendants to assist in rebuilding irrigation dam because it benefited both parties, held insufficient to establish an irrevocable license to defendants to maintain the dam, contrary to the owner’s wishes, but was a mere license revocable at will.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 185.]
    Appeal from District Court, Reeves County ; S. J. Isaaeks, Judge.
    Suit by Al Popham against Charles Eggles-ton and others. Judgment of no cause of action, and enjoining plaintiff from interfering with use and maintenance of an irrigation dam by defendants, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Clay Cooke, of Pecos, for appellant. J. E. Starley and Ben Palmer, both of Pecos, for appellees.
   HIGGINS, J.

Popham brought this suit against Chas. Eggleston and others to enjoin them from trespassing upon the west one-half of section 13, block 1, Houston & Texas Central Railway Company survey and section 24, block C-16, and from erecting a dam upon said lands across Barilla creek or draw. The lands mentioned and other tracts constitute a large cattle ranch owned by Popham. Barilla Draw rises in the Davis Mountains far to the south of the lands owned by Pop-ham. It extends northwardly through said lands. The Popham lands were formerly owned by the Wilson-Popham Cattle Company, a corporation in which Popham was a large stockholder, and of which he was general manager. The lands passed from the corporation to Popham about May, 1912. E. P. Stuckler was the ranch boss or foreman while the lands were owned by the corporation, and has remained in that capacity since the lands passed to Popham. In the year 1900 the then owner of the ranch built a dam across the draw. This dam diverted the water from the channel of the draw, and caused it to overflow and irrigate quite a large body of land. This dam washed out and was rebuilt. It appears that the dam washed away again in 1909. It was then rebuilt by the Wilson-Popham Company, who then owned the property. The dam at this time was built about one-half mile distant from the former dam site and upon the land above described. The lands of the defenants were irrigated by the water diverted by means of the diversion dam. It seems that their lands were originally public free school land and constituted a part of the cattle range of the plaintiff and his predecessor in title, the cattle company. Beginning about the year 1908, the defendants and their predecessors in title acquired their lands from the state and fenced the same out of the pasture of Popham and the cattle company. The defendant’s lands were of but little value, unless they were able to obtain water for the irrigation thereof. They had each placed a portion of their lands in cultivation, built houses thereon, and made other valuable improvements upon their lands. If they fail to secure water to irrigate their lands, it will be a very great hardship upon them. When the defendants fenced their lands out of the plaintiff’s pasture, it left him a very small area that was irrigated by means of the diversion dam. This was thick with cockleburrs, and his cattle would become bogged therein. He claims that it then became unprofitable to him, that the diversion dam should be no longer maintained, and that it would be better for him if it did not exist. He therefore gave instructions to his foreman Stuckler that if the dam washed out again not to rebuild it or permit it to be rebuilt. In the years 1914 and 1915 the defendants made application to the board of water engineers for an appropriation of the waters of Barilla creek, the applications being to take and use the water at the point where the dam was situate and by means thereof. The right to appropriate said waters was granted and permit issued. The dam washed out again in 1915, and it is to enjoin the reconstruction thereof that this suit was brought

Upon trial, verdict was returned and judgment rendered that plaintiff take nothing, and affirmative relief was granted defendants by enjoining plaintiff from injuring, tearing down, or destroying the dam, and from interfering with the use and maintenance thereof by defendants. Under the view we take of the case, it is unnecessary to pass upon any of the assignments, except the first two, which relate to the sufficiency of the evidence to support the judgment.

The effect of the court’s judgment was to grant to the defendants an easement in plaintiff’s land and perpetual right to maintain a dam thereon for their own use and benefit. This was an interest and right in the land which must have been created by an instrument in writing. It was within the statute of frauds. Article 1103, R. S.; Parsons v. Hunt, 98 Tex. 420, 84 S. W. 644; Adams v. Weir, 99 S. W. 726; Thomas v. Irrigation Co., 80 Tex. 550, 16 S. W. 324; Risien v. Brown, 73 Tex. 135, 10 S. W. 661. It is not contended that there was a written grant of the right, but it is contended that an irrevocable license was granted by plaintiff or his predecessor in title, the cattle company, acting through Stuckler, to defendants, to maintain the dam upon said land. It is asserted that the license was given orally by Stuckler.

We may waive the question of whether or not there was such possession and performance by defendant as would remove the case from the operation of the statute of frauds. Such an inquiry is not necessary, unless there be evidence of a license irrevocable in its nature granted by Stuckler, and evidence that he had authority to grant the same.

The only evidence remotely intimating that such a license was granted is found in the testimony of the defendant T. N. Wilson, who testified:

“I have helped to repair or rebuild that dam. Mr. Stuckler invited mo to. The first time I worked on that dam was either 1910 or 1911. The first time Mr. Stuckler ever invited me to work on that dam it was down here in front of Henderson’s drug store, sitting on the sidewalk in the fall of 1909. Stuckler said, ‘Wilson, you nesters out there are all using that water and getting as much benefit of it as the ranch is, and if you nesters want to continue using this water, get your teams and scrapers and come and help rebuild that dam.’ A little later they commenced work, some partially constructed, and it come an overflow and washed a greater part of it away. The next was in the spring, the year, I remember, of 1910 or 1911. * * * He asked me for to take my team and scraper; for us all that time to come to help, and we alí came up there and brought our scrapers and things on Sunday, and Mr. Popham was there with Mr. Stuckler; they were in the buggy; that was at this dam where they had partially constructed this dam. * * * Mr. .Stuckler sat there and conversed with Mr. Popham about this dam in my presence, and he [Stuckler] turned to me and said: ‘Wilson, you go and tell all the nesters around here to bring their teams and scrapers and come here to-morrow and help to rebuild, build up this dam. If you don’t, the next overflow will wash out what little is here; it is as much to you people as it is to us, and if you don’t help to build it we are going to let it go.’ Mr. Popham sat there in the buggy and heard the conversation. After we walked up on the dam and he showed us a few places, what little there was there, where to work, and so on. * * * ”

He testified further concerning his conversations with Stuckler, but the foregoing quotation most strongly presents the defendant’s contention. He also testified to work that he and the other defendants had done upon the dam. The testimony shows that they worked upon the dam, expending much time and money.

The testimony very clearly indicates that no irrevocable license was intended to be granted, nor does it appear that the parties so understood it. It was nothing more than a request from Stuckler that the defendants assist in repairing the dam since they were as much interested in its maintenance as his principal. It was insufficient to deprive the landowner of an estate in the land, and to vest same in defendants. It was nothing more than a license revocable at will. Railway Co. v. Johnson, 156 S. W. 253.

The case has been fully developed. There being no evidence of a grant to defendants which would vest in them such an estate in the land as would give them the right to reconstruct and maintain the dam on plaintiff's land against his wishes, the cause will be re-, versed, and judgment here rendered for plaintiff.

Reversed and rendered.
      <®=5>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


author: DAVIS, J.

text:
    DOWDELL et al. v. McCARDELL.
    (No. 48.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 24, 1917.
    Rehearing Denied March 28, 1917.)
    1. Adverse Possession <S=x>13 — Title by Limitation-Requisites.
    In order to establish title to land under the five-year statute of limitation, it is necessary to have a deed duly registered, possession, use, and enjoyment, and to pay all taxes.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76.]
    2. Adverse Possession <s=s>94^-Title by Lim-itatio n — Re quisites .
    When one holds a deed to an undivided interest in a tract of land has his deed duly registered, and has possession, use, and enjoyment of any part of the land, and claiming the same for five years under a deed duly registered, and pays the taxes on the amount of land equal to the interest conveyed by the deed for five years, then limitation under the five-year statute will be complete, although none of the taxes on the other undivided interest have been paid.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 528, 529.]
    3. Advep.se, Possession @==>94 — Title by Limitation — Requisites.
    Where defendant took a deed to certain interests in land which was void, but took possession and paid taxes to the extent of such interest and later took a valid deed to the entire acreage .and continued to pay taxes only on the amount covered by the void deed, he could not complete title under the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 528, 529.]
    4. Adverse Possession <@=>108 — Title by Limitation — Requisites.
    A party who holds peaceable and adverse possession on land on which his improvements are situated, using, cultivating, and enjoying it for more than 10 years, can recover such land under proper pleadings to be run out so as to include his improvements, or by showing, that the exact land described was a fair and equitqble partition.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 624-628.]
    5. Adverse Possession <§=>108 — Title by Limitation — Requisites.
    But where such party answered, disclaiming as to all the land sued for except a specific acreage, without showing that it was a fair and equitable partition when he was entitled only to a fractional undivided interest, his title was not established.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 624-628.]
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Action by Mrs. M. S. McCardell against Peter Dowdell and others. On plaintiff’s death W. K. McCardell and others were substituted as plaintiffs. Verdict for plaintiffs in part, and defendants, save T. N. Jackson, appeal.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, and Tharp & Tharp, of Houston, for appellants. Stevens & Stevens, of Houston, and Campbell & Campbell, J. L. Manry, and Davis McCardell, all of Livingston, for appellees.
   DAVIS, J.

This is a suit in trespass to try title, brought by Mrs. M. S. McCardell against Peter Dowdell et al. on June 6, A. D. 1902, in the district court of Liberty county, Tex., to recover 640 acres of land out of league No. 6, J. D. Martinez grant in Liberty county. Plaintiff died during the year 1911, and on March 2, 1915, the day this case was tried, W. K. McCardell and others made themselves parties plaintiffs, and on this same day plaintiffs dismissed as to all of the defendants except T. N. Jackson, Peter Dow-dell, W. S. Swilley, Wilson Mills, and E. D. Dowdell. The defendants P. M., or Peter, Dowdell, J. W., or Wilson, Mills, and T. N., or Tom, Jackson, on August 18, 1902, filed their answer together, setting up their pleas of three, five, and ten year limitation. On March 3, 1905, T. N. Jackson filed his first amended original answer alone, in which he pleaded the five-year statute of limitation to a specific 85%-acre tract. On March 3, 1905, J. W. Mills filed his first amended original answer alone, in which he pleaded the five and ten year statutes of limitation to a specific 50-acre tract. On March 2, A. D. 1915 the defendants P. M. Dowdell, J. W. Mills, W. S. Swilley,.and T. N. Jackson filed their first supplemental answer, in which they adopt their former pleadings, and set up that J. W. Mills had sold the 50 acres of land described in his first amended original answer, since the filing of this suit, to E. D. Dowdell. On March 2, A. D. 1915, E. D. Dowdell filed his original answer, in which he disclaimed title to all of the land sued for, except a specific 50-acre tract, to which he pleaded the three, five, and ten year statutes of limitation, and then pleaded by way of cross-action over against plaintiffs for the 50 acres. It was agreed by all the parties to the suit that the plaintiffs had the paper title to the land sued for at the time of the filing of this suit, and should recover, unless divested by the statutes of limitation of five and ten years, in which event the legal title claimed by defendants should vest in them, respectively, to the land claimed by each. The case was tried before a jury, and the court instructed a verdict for the defendant T. N. Jackson for 85% acres of the land sued for, and for the plaintiffs against all the defendants for the land sued for, except this 85% acres recovered by Jackson. Defendants P. M. Dow-dell, J. V/. Mills, and E. D. Dowdell filed their motion for a new trial, and, which being overruled, they have brought the case to this court for revision.

Appellants urge three assignments of error, complaining of the action of the trial court ip instructing a verdict against them, and which assignments, in substance, are as follows: First, because the testimony raised an issue under the ten-year statute of limitation as to the 50 acres claimed by E. D. Dowdell; second, because the testimony raised an issue under the five-year statute of limitation as to the 50 acres claimed by E. D. Dowdell; third, because the testimony raised an issue under the five-year statute of limitation as to the 640 acres claimed by P. M. Dowdell.

Defendants introduced upon the trial of the case the field notes of a 640-acre survey made by J. N. Dark for W. S. Swilley and P. M. Dowdell in January, 1895, and filed for record March 2, A. D. 1895, and being the same land claimed by defendants in this suit. On April 2, A. D. 1895, Mary Lorenz, by deed conveyed to P. M. Dowdell by metes and bounds the 640 acres claimed by defendants, and which deed was filed for record May 6, A. D. 1895. On December 22, 1900, P. M. Dowdell and his wife sold to J. W. Mills 50 acres by metes and bounds out of the southwest corner of the 640-acre tract claimed by P. M. Dowdell, and this is the same 50-acre tract, which passed by regular chain of deeds down and into E. D. Dowdell, one of the defendants. Prior to the deed from Mary Lorenz to P. M. Dowdell, dated April 2, 1895, and prior to the recording of the field notes made by Dark for Swilley and Dowdell, the said P. M. Dowdell executed a deed to W. S. Swilley, purporting to convey an undivided one-third interest in this land, and was, at the time of the execution of the deed from Mary Lorenz to him of the entire 640 acres, qnly claiming a two-thirds undivided interest in the land, and under which claimed interest, and not under his deed, claims to have paid all the taxes on the land claimed by Mm for five years. P. M. Dowdell, in November, 1891, claiming 640 acres of the Martinez league, under Mary Lorenz, went upon the same and cleared and' fenced a small field, built a house and other improvements upon the land, and used, cultivated, and enjoyed the same, either himself, or through tenants, and at the same time claimed the , 640 acres of land, or a two-thirds undivided ¡interest in the 640 acres. On May 6, 1895, ■P. M. Dowdell placed upon the records of Liberty county the deed from Mary Lorenz, i dated April 2, 1895, conveying to' him by 1 metes and bounds 640 acres of land, which [covered all of his improvements, and since he placed this deed upon the records, he says ¡that he has only been claiming a two-thirds undivided interest in the 640 acres. It appears that about the -time P. M. Dowdell went upon this land that he executed a deed :to W. S. Swilley to a one-third undivided interest in the land, and which deed is void for the want of description.

If P. M. Dowdell has title to the land at all, it would be by virtue of the five-year statute of limitation; and, in order to establish a title to land under the five-year statute of limitation, it is necessary: First, to have a deed duly registered; second, possession, use, or enjoyment; and, third, payment of all taxes. We think the evidence in this case shows that the defendant, P. M. Dowdell, had a deed duly registered for more than five years before the institution of this suit; that he had possession of the land, and used, cultivated, and enjoyed the same for more than five years, under a deed duly registered, before the institution of this suit. Now, if he has paid the taxes on the land, as required by law, then certainly his claim under the five-year statute should have been submitted to the jury. Let us see if he has paid the taxes, as required by law. On February 22,' 1896, he paid the taxes for 1895 on 440 acres. March 19, 1897, he paid the taxes for 1896 on 440 acres. January 27, 1898, he paid the taxes for 1897 on 440 acres. January 31, 1899, he paid the taxes for 1898 on 568 acres; and during the year 1897, on December 1st, he purchased 124 acres more land out of the Martinez league, from one- W. O. Belcher. January 15, 1900, he paid the taxes for the year 1899, on 568 acres. January 29, 1901, he paid the taxes for the year 1900 on 620 acres; having purchased ~oh January 27, 1900, 133.3 acres more land out of the Martinez league from W. C. Belcher.

When one holds a deed to an undivided interest in a tract of land; has his deed duly registered, and has possession, use, and enjoyment of any part of the land, and claiming the same for five years under a deed duly registered, and pays the taxes on the amount of laud equal to the interest conveyed by the deed for five years, then limitation, under thé five-year statute will be complete,' although, none of the taxes on the other undivided interest have been paid. Club Land & Title Oo. v. J. W. Wall, 99 Tex. 591, 91 S. W. 778, 122 Am. St. Rep. 666.

The deed from P. M. Dowdell to W. S. Swilley was void for want of description, and conveyed nothing, and, several years' after P. M. Dowdell had executed this void deed to Swilley, he had all of the 640 acres conveyed to him by Mary Lorenz, and under this deed held all of the 640 acres, and hence he could only complete the five-year statute of limitation by paying taxes on the entire 640 acres for five years; but he did not pay the taxes on all of the land claimed by him, required under'the law, as reflected by the record, and his own testimony in the case; and since the claim of B. D. Dowdell under the five-year statute of limitation to the 50 acres, which is a part of the 640 acres, is based upon and coupled with the limitation claim of P. M. Dowdell under the five-year statute, B. Di Dowdell could not recover under the five-year statute of limitation. This disposes of appellants’ second and third assignments of error, and we will now discuss appellants’ first assignment of error. We will assume that the testimony shows that P. M. Dowdell went upon the land in controversy in November, 1891, claiming 640 acres; that he cleared and inclosed a small field, built a dwelling house, and made other improvements thereon, and used, cultivated, and enjoyed the same up to December 22, 1900, when he sold the 50 acres by metes and bounds to J. W. Mills, and that Mills, after his purchase of the 50 .acres, immediately moved upon the land and held peaceable and adverse possession of the same, using, cultivating, and enjoying the same up to January 6, A. D. 1902, when this suit was filed; this 50 acres being the same 50 acres claimed by the defendant E. D. Dowdell.

Under this statement, as to the proof,, there can be no question but what the defendant E. D. Dowdell has had and held under those through whom he claims peaceable- and adverse possession of the land on which his improvements were situated, using, cultivating, and enjoying the same for more than ten years before the institution of this suit,. and under proper pleadings and proof could have recovered 50 acres of land, to be run out so as to include bis improvements, or by showing that the 50 acres described in liis answer was a fair and equitable partition of the land; but the defendant E. D. Dowdell filed his answer disclaiming as to all of the land sued for, except a specific 50 acres described in his answer by metes and bounds. No plea was filed by him in the alternative that if he was not entitled to recover the 50 acres described in his answer, then he have and recover 50 acres of land to be run out so as to include his improvements; nor was there either pleading or proof that the 50 acres described was a fair and equitable partition of the land. We are therefore of the opinion that the defendant E. D. Dowdell could not recover under the ten-year statute of limitation. Wickizer v. Williams, 173 S. W. 1162; Louisiana & Texas Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110.

We are therefore of the opinion that the judgment of the lower .court should be affirmed, and it is so ordered.
      dins>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gx»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HILL v. KINCAID.
    (No. 5806.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1917.
    Rehearing Denied March 21, 1917.)
    1. Appeal and Error <&==>564(5) — Statement of Facts — Permission to File.
    Where a transcript was filed on August 25th without a statement of facts, and on October 2d the clerk refused to file an offered statement without an order of the court, but no request therefor was made until the case was submitted the following February, permission to file the statement will be denied.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2504-2506, 2558, 2559.]
    2. Appeal and Error <@=»548(2) — Statement
    of Fac.t& — Failure to File.
    An assignment of error that the judgment was unsupported by the evidence will be overruled where the record contains no statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2438.]
    Error from County Court for Civil Cases, Bexar County; John H. Clark, Judge.
    Action by A. J. Kincaid against Joe L. Hill. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Robt. P. Coon and W. B. Teagarden, both of San Antonio, for plaintiff in error. Chambers & Watson, of San Antonio,, for defendant in error.
   MOURSUND, J.

A. J. Kincaid sued Joe L. Hill in justice’s court for $170, alleged to be a balance due as commission for the sale of land, and recovered a judgment for said amount, and upon appeal to the county court judgment was again rendered for Kincaid in the same amount. Hill pleaded that he was not the owner of the property, but was only the agent of and acting for the owner, and that this was known by Kincaid prior to the transactions between them, and he now contends that the judgment is contrary to the undisputed testimony, or at least that the great preponderance of the testimony shows that he is not liable to Kincaid.

The transcript was filed in this court on August 25, 1916, unaccompanied by any statement of facts. On October 2, 1916, the statement of facts was presented to the clerk of this court for filing, and he declined to file it without an order of court. No motion was filed requesting permission to file such statement of facts until February 9, 1917, and such motion was submitted on the same day the ease was submitted. We are therefore requested to permit a statement of facts to be filed after the case has been briefed and submitted. In addition, no excuse is offered, except oversight, for the failure to file it with the transcript, and no excuse is offered for so long delaying filing motion in this court. Under the circumstances, there being no agreement by defendant in error that the statement of facts be filed and considered, we overrule the motion for permission to file the same. Heflin v. Railway, 106 Tex. 23, 155 S. W. 188; Patrick v. Pierce (Sup.) 183 S. W. 441; Rule 22, Courts of Civil Appeals (142 S. W. xii).

There being no statement of facts in the record, the assignment must be overruled.

Judgment affirmed.
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text:
    McGUIRE v. BLAIR et al.
    (No. 148.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1917.
    Rehearing Denied March 28, 1917.)
    1. Partition <@=^92 — Boundaries—Effect of Survey.
    In trespass to try title, plaintiff held not bound by prior survey in partition proceedings where the decree in such proceedings disregarded such survey and was in conflict therewith.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 274-284.]
    2. Boundaries ®=537(1) —Findings—Sufficiency of Evidence.
    In trespass to try title, finding that boundary line established in partition proceedings was not surveyed line contended for by plaintiff, but that decree disregarded such survey, held supported by evidence.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184r-189, 192, 194.]
    3. Boundaries <®^3(6) — Surveys—Effect.
    Where commissioners in partition disregarded survey in their decree, the rule that lines and corners established by survey and marked on the ground cannot be changed have no application in subsequent proceedings to try title.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 24-29.]
    Error from District Court, Liberty County; J. Llewellyn, Judge.
    Trespass to try title by J. E. McGuire against F. M. Blair and others. From the judgment locating the boundary lines, plaintiff brings error.
    Affirmed.

      H. E. Marshall, of Liberty, for plaintiff in error. J. P. Dabney, of Liberty, for defendants in error.
   DAVIS, J.

This is a suit of trespass to try title, brought by J. E. McGuire on January 20, 1910, in the district court of Liberty county, Tex., against F. M. Blair, Mrs. M. B. Oarson, J. H. Carson, and Kathleen O’Con-nor, to recover certain land in the Reason Green league, in said county. The case was tried before the court without a jury, and resulted in a judgment for the defendants for the land described by them in their respective answers, and for the plaintiff for such land described by him in his petition, not in conflict with the lands of defendants, which was determined by fixing and locating a certain divisional line between the north half and the south half of said league, from which judgment plaintiff has appealed.

The pleadings of plaintiff and defendants set out by metes and bounds the several tracts of land claimed by them, respectively. That each of the parties to this suit owns the fee simple title to lands on the Reason Green league is not disputed, but conceded; but just where the boundaries of the several tracts should be is the question in dispute, and determining where the boundaries of the several tracts should be depends upon the true location of a division line between the north half and the south half of the said Reason Green league. This division line runs from a point on the Trinity river west through the Reason Green league, and the first deed, as shown by the record, calling for this division line, was made by the heirs of Reason Green to A. E. Shackelford on May 24, 1871, wherein the grantors conveyed the south half of said league, and described this division line as follows:

“The said south half to be separated from the north half thereof by a line to be run through the center of said league, beginning on the bank of Trinity river.”

The Richard Green league lies just north of and adjoining the Reason Green league, and the southeast corner of the Richard Green league and the northeast comer of the Reason Green league are the same; each calls to begin with the other on the west bank of Trinity river.

It appears from the record that the south line of the Reason Green league and the northwest corner of the Richard Green league are well located and undisputed; and, taking these known landmarks, and running out both leagues in accordance with their respective field notes, it will establish the southeast corner of the Richard Green league and the northeast corner of the Reason Green league at a point on the west bank of Trinity river, 338 varas south of the mouth of Mud bayou. Then, to begin at the northeast corner of what is known as the Dunehe tract, which is the southwest quarter of the Reason Green league, there is an old line that divides the Reason Green league into north and south halves. Plaintiff in error claims this line is crooked, and does not appear to be, arid was not' intended to be, the division line between the north half and the south half of said league, but that this line was run by one Wharton Branch a number of years ago, for the purpose of marking a boundary beyond which certain parties, timber cutters, should not cut timber; but defendants in error claim that this line is a straight line, and does, in fact, divide the league into north and south halves, and was recognized by the owners of the land as the dividing line, and that, following this line east to the river, you reach a point 338 varas south of where plaintiff in error claims this point should be. The evidence discloses that to begin at a point on the Trinity river at the place where plaintiff in error claims is the correct location, and running west through the Reason Green league for this division line, would reach a point on the west line of the Reason Green league about three-quarters of the distance up said lane from the southwest corner of said league, and would pass between 350 and 450 varas north of the recognized northeast corner of the Dunehe southwest corner of said league, and would, therefore, not divide the league in equal parts, but would make the south part much larger. Now, the correct division line as claimed by plaintiff in error is designated in the record as the Eubank line, and the correct division line as claimed by defendants in error is designated in the record as the Branch line. The evidence shows, that the Branch line extends through the entire league, and divides the league equally, but the Eubank line runs only part of the way, and does not extend to the west' line of the league, and doesi not divide the league equally.

W. F. Blair and John Blair were brothers and partners in business, and during their partnership, on June 13, 1899, purchased of S. S. and S. D. Lowery the southeast quarter of the Reason Green league. On December 2, 1897, they purchased from Lily Hardin, Minnie Nolen, and W. B. Nolen 324 acres of the Reason Green league in two tracts of 162 acres each, and described as lots Nos. 1 and 2, lot No. 1 being described as follows: Beginning at the northeast corner of the Reason Green league; thence W. 1,698 varas; thence south 634 varas; thence east to the river; thence up the river to beginning — lot No. 2 being just south of lot No. 1, and the south line of lot No. 2 being 733 varas south of the south line of lot No. 1. And on May 6, 1897, they purchased from W. L. Douglas and Hugh Jackson 162 acres of the Reason Green league, described as lot No. 3. This 162-acre tract lies west of lots Nos. 1 and 2, and extends from the north line of lot No. 1 to the south line of lot No. 2. On February 24, 1897, in a partition suit styled Douglas v. Reagan, wherein the north half of the Reason Green league was partitioned into six lots, the three 162-acre tracts purchased aft-erwards by the Blairs were described as lots Nos. 1, 2, and 3. The partition decree in this suit describes the land by beginning at the northeast corner of the Reason Green league, on the west bank of the Trinity river, thence west with the north line of the league a certain distance, and from there on the calls are merely for course and distance, until the river is reached again, and thence up the river with its meanders to the place of beginning. No marked corners, monuments, or previously established lines are called for, except the northeast comer, north line of the league, and Trinity river. It appears that one R. E. Eubank, a surveyor, under employment of the commissioners of partition, in the suit of Douglas v. Reagan, surveyed out the three 162-acre tracts, Nos. 1, 2, and 3, and did actually establish the lines and corners of these surveys, hut for some reason, not explained, his report setting out the surveys was not incorporated in the report of the commissioners, nor in the decrees of partition, but the decree, disregarding the work done by the surveyor, Eubank, described these three 162-aere tracts as set out above. The surveyor, Eubank, places the south line of lots Nos. 2 and 3 about 338 varas north of where defendants in error claim that it should be.

The evidence clearly shows that, in all fairness, this division line should be located where defendants in error contend it is located, and where the trial court in its findings of fact actually locates the line; but plaintiff in error contends that, inasmuch as Eu-bank, under employment of the commissioners of partition in the suit of Douglas v. Reagan, did actually survey and locate on the ground these tracts of land, they are bound by it, and estopped thereby. With this contention we do not agree, for the reason that the decree of partition, and not the actual survey on the ground, should control, inasmuch as the decree in describing these tracts of land is in conflict with the surveying done on the ground, and for some reason totally disregards the survey as made by Eubank.

Plaintiff in error further contends that at the August term, 1906, in a partition suit styled Blair v. Blair, an agreed judgment was entered, in which partition the Eubank line was recognized as the dividing line between the north half and the south half of said league; that said line was well established by marks and corners on same, and on lots Nos. 1, 2, and 3 of the Douglas v. Reagan partition suit. With this contention we do not agree. In the partition suit of Blair v. Blair there was a decree of partition entered between W. E. Blair and the heirs of John Blair, deceased, in which the three tracts in the north half of the Reason Green league known as lots Nos. 1, 2, and 3, a 400-acre tract in the Richard Green league, and 160 acres out of the northeast corner of the southeast quarter of the Reason Green league, described as being one-quarter of a mile wide and running west from the river for quantity, was set aside to the heirs of John Blair, and the southeast one-quarter of the Reason Green league, less the 160 acres out of the northeast corner of same, together with 160 acres in International & Great Northern survey No. 10, was set aside to W. F. Blair. This decree uses the same description of the three tracts Nos. 1, 2, and 3, in the north half of the league, as is used in the decree of Douglas v. Reagan, and refers to it, and the description of the southeast quarter set aside to W. F. Blair is the same as in the deed from the Lowerys to John and W. F. Blair. The trial court, in paragraph 4 of its findings of fact, sets out one of the facts found as follows:

“The court finds that said marked corner for said three tracts of land made by Eubank, the surveyor who acted for the commissioners of partition in said case of Douglas v. Reagan, were for some reason rejected by said commissioners, and not incorporated in their report, or in the partition decree of the north half of said league, and further I find that such partition of the north half of said league was made without reference to those marks which Eubank testified he made for corners, and with reference only to the true location of the north half of said league, wherever it .was in fact upon the ground.”

From a careful investigation of the evidence we find this finding of fact amply supported by the evidence.

Plaintiff in error contends that, “if the lines and corners were marked upon the ground, that location will control,” and cites Stafford v. King, 30 Tex. 272, 94 Am. Dec. 304, Jones v. Burgett, 46 Tex. 292, and Johns v. Schutz, 47 Tex. 682, and further contends that “marked lines must be followed,” and cites George v. Thomas, 16 Tex. 74, 67 Am. Dec. 612, and further contends that, “.when land is acquired with reference to lot numbers or surveys actually made on the ground, the survey cannot be changed,” and cites Smith v. Boone, 84 Tex. 628, 19 S. W. 702. We think these contentions are correct, and squarely supported by the authorities cited, but do the facts bring this case within the rules as announced in these cases?

It is clear that, although Eubank, under employment by the commissioners of partition in the case of Douglas v. Reagan, went upon the land and actually marked upon the ground and established the lines and corners of the several tracts to be partitioned, this work was never recognized by any one, was for some reason disregarded by the commissioners of partition, and the decree, of partition describes the land as claimed by the defendants in error, and found by the trial court, and not in accordance with the survey as made by Eubank.

Finding no error in the trial of this case, the judgment of the lower court is affirmed; and it is so ordered.