author: KING, J.

text:
    SULLIVAN v. MASTERSON et al.
    (No. 31.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Appeal and Error <&wkey;743(l) — Scope, oe Review — Sueeiciency oe Assignments.
    Assignments of error will not be considered, when not in substantial compliance with rule 25 (142 S. W. xii), requiring reference to the part of the motion of new trial wherein the error assigned is complained of.
    2. Appeal and Error @=>722(1) — Scope oe Review — Sueeiciency oe Assignments.
    Assignments of error, failing to show that they are predicated on any bill of exceptions, or that any exception was taken to the ruling complained of, will not be considered.
    8.Appeal and Error @=>742(5) — Scope of Review — Sueeiciency oe Assignments.
    An assignment of error that the court erred in instructing, as to the control of calls, that generally natural objects are the highest, artificial objects next, and course and distance the lowest grade, is not in itself a proposition of law.
    4. Appeal and Error @=>263(3) — Scope — Preservation oe Exceptions — Instructions.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970, 1971 and 1978, as to presentation of instructions to opposing counsel, exceptions to a refusal to give special charges, failing to show that they were submitted to opposing counsel, will not be considered.
    5. Appeal and Error <&wkey;730(l) — Assignments oe Error — Sueeiciency.
    Assignments of error that the court erred in overruling an exception, as shown in defendant’s exception to the charge as a whole, giving the transcript page, is too general and vague to be considered.
    6. Trial @=>133 (6)' — Argument oe Counsel— Cure oe Errors.
    Conceding plaintiff’s argument to have been beyond proper bounds, the error was cured by prompt instruction not to consider such remarks, and by the withdrawal of such remarks.
    7. Evidence <&wkey;383(12) — Admissibility—Entire, Instrument.
    The rule that, where a part of an instrument is offered in evidence, it should all be admitted, has its limitations.
    8. Appeal and Error @=>1056(2) — Harmless Error.
    Error, if any, in excluding from the evidence an order of dismissal in another case, after the adverse parties had introduced a certified copy of the decree therein, was harmless; the evidence being irrelevant and immaterial, conceding that it was a part of the instrument which had been offered.
    9. Trial @=>140(1) — Questions for Jury-Credibility oe Witness.
    The jury are the exclusive judges of the credibility and weight of the testimony.
    10. Boundaries @=37(1) — Evidence—Sueei-ciency.
    Evidence Iwld to sustain verdict fixing the location of plaintiff’s boundaries as contended for by them in their action of trespass to try title.
    11. Boundaries @=>3(3) — Controlling Elements.
    In determining boundaries, recourse should be had, first, to natural objects; second, to artificial objects; and, third, to courses and distances.
    Appeal from District Court, Liberty County; L. B. Hightower, Judge. .

      Trespass to try title by H. Masterson and another against D. Sullivan and others. From .the judgment rendered, Sullivan appeals.
    Affirmed.
    X F. Dabney, of Liberty, and Crook, Lord, Lowhon & Ney, of Beaumont, for appellant. C. F. Stevens and E. B. Pickett, Jr., both of Liberty, and H. Masterson, for appellees.
   KING, J.

H. Masterson and Bettie Bryan brought suit in the form of trespass to try title to the south 4,000 acres of the Margarita Buye league of land in Liberty county, Tex., naming D. Sullivan and others as defendants. Pending trial, settlement was effected between the plaintiffs and a number of the defendants. D. Sullivan, appellant, purchased the interests of the other defendants not included in the settlement; ■ and prosecutes this appeal.

In the trial court, by agreement of the parties, the issue resolved itself solely into a question of boundary between the Margarita Buye league, claimed by appellees, and the Robert Burrell league, claimed by D. Sullivan. The Buye league being the senior, the only issue of fact in the case became the true location of the Margarita Buye league. Appellees claimed that the •southeast corner of the Buye is approximately 5,000 varas west of an iron bolt, called by their witnesses the “accepted” northwest corner of the John Blair league, based on the calls of the field notes of one of the Nicholas De Nava surveys, which 'calls to begin at the northwest corner of the John Blair league, and lying immediately west thereof, and to be 5,000 varas square. The northwest corner of this Le Nava survey calls for a pin oak six inches N. 72° W. 33.8. The Buye field notes call for an eight-inch white oak at its southeast corner bearing N. 72° W. 33.8 varas. There were a number of the De Nava surveys, supposed to consist of 11; but they were abandoned ffiany years ago because of an inhibition in the Mexican laws against locating so many leagues within 10 littoral leagues of the sea without the consent of the supreme executive. • The De Nava surveys were void on account of this inherent defect in the source of title to the same; it not being shown that the consent of the supreme executive had been obtained. They were, however, actually surveyed on the ground, and were not void on account of the manner in which they were surveyed.

Appellant, in addition to requiring appel-lees to show the location of the Buye, so as to include the land owned by him, offered evidence which he claims shows the location of the Buye to be 1,900 varas west of the location claimed by appellees. This location was based upon the location of the Win. B. Reed league. He claims that the northeast corner of the Wm. B. Reed is the southwest corner of another De Nava survey, and that the northwest corner of this De Nava survey is the southwest corner of the Buye. The ease was tried by a jury, the court submitting the law to them in a general charge. The verdict was for appellees, motion for new trial was overruled in 'the trial court, and this appeal perfected by D. Sullivan.

The description in plaintiff’s original petition of the land sued for is as follows:

“All that certain part of a league of land originally granted to Margarita Buye and located in said county about sixteen miles east of the town of Liberty, and beginning at the southeast corner of said league, thence north with the east line of said league 4,536 varas to corner, thence west parallel with the north and south lines of said' league a distance of 5,000 varas to the west boundary line thereof, thence south in said west boundary line to the southwest corner of the league, thence east in the south boundary line of said league to the place of beginning, containing 4,000 acres of land.”

The field notes of the Margarita Buye, according to the original surveyor, I. W. Burton, are as follows:

“The land surveyed to citizen Margarita Buye is situated on the creek called Pine Island Bayou and about two miles west of Wolf’s Point, where a mound of earth was formed around a stake for the first landmark of this survey, from which a white oak 8 inches in diameter bears north 72 deg. west 33.8 varas distant; thence north 5,000 varas, measured, and a mound of earth was around a stake for the second landmark, from which a pine 24 inches in diameter bears north 68½ deg. west 11.2 varas distant, and another pine 36 inches in diameter bears north 30% deg. 211 varas distant; thence west 5,000 varas were measured, and. a mound oí earth was formed around a stake for the third landmark; thence south 5,000 varas were measured and the fourth landmark was formed, from which a red oak 24 in. in diameter bears S. no deg. -2' east 42.6 varas distant, and a pine 30 inches in diameter bears south 42 varas distant; thence east 5,000 varas were measured to the first landmark, thus completing the survey of a league of land. * * *

For a proper consideration of this case, we deem it necessary to give the description of the John Blair league, the De Nava survey No. 1, lying immediately north of the John Blair, the De Nava No. 6, lying west of the John Blair, and the De Nava No. 7, lying west of the De Nava No. 6. The field notes of the Blair, as translated into English, are as follows:

“In the prairie about 20 miles west of Santa Anna, at a place known as Wolf Point on the road to Trinity_, set post in mound in the open prairie, lands high and rolling and rich; thence south 455.6 to a black jack in a small cluster of timber 9 inches in diameter, a line tree, 500 to a post in the open prairie in mound, lands low and wet; thence west 5,000 varas, set post and mound on the open prairie, lands rich, high, and rolling; thence north 500, set post in mound on the open prairie, lands low; thence east 5,018 to the place of beginning, containing one sito of land, four labors of which is fit for cultivation, balance pastoral lands. This survey is on prairie with some scattering timber.”

David Brown made this survey in 1834. The De Nava No. 1, surveyed by Isaac W. Burton in 1835, is described in the original field notes as follows:

“The league of land which by the foregoing order I have surveyed for citizen Nicholas De Nava is situated in Zavalla’s Colony, on the south margin of Pine Island creek at the northwest comer of a survey made by Blair, and this survey included the point called Wolf’s Point, where the first landmark formed of a mound of earth around a stake was_ raised in prairie; thence east, following said Blair’s north boundary line, 5,000 varas were measured to said Blair’s northeast corner, it being the second landmark of this survey and having no witness trees; thence west 5,000 varas were measured, and the fourth landmark was formed like the preceding one, from which a Spanish oak 15 in. diameter bears north 27 deg. east 15 varas distant, and another tree.of same kind and size bears north 36 deg. east 14.6 varas distant; thence south 2 min. west 4,980 varas were measured to the first landmark, thus completing the survey of a league of land, which you ordered me to survey. Four labors of said land belong to the class of arable land, and the remaining ;ones, being 21, to that of pasture land.

The De Nava No. 6 is described as follows ;

“Situated in Zavalla’s Colony, on the south mai'gin of Pine Island creek, near a point called in English Wolf Point, and begins at the northwest corner of the Blair survey, where the first landmark was formed of a mound of earth around a stake with no witness trees, thence west 5,000 varas were measured and the second landmark was formed, from which a pin oak 6 in. in diameter bears north 72° west 33.8 varas; thence south 5,000 varas were measured and the third landmark was formed, from which a black jack 20 inches in diameter bears north 15 dog. west 28 varas distant; thence east 5,000 varas were measured, and the fourth landmark was formed having no witness trees; thence north along said Blair’s west boundary line 5,002 varas were measured to the place where this survey was begun. * * * ”

The De Nava No. 7 is described as follows :

“Situated in Zavalla’s Colony on the south margin of Pine Island creek, near a point called in English Woyt Point, and begins at the northeast corner of a survey where the first landmark was formed by raising a mound of earth around a stake, from which a pin oak 6 inches 8 minutes in diameter bears'north 2° west 38.8 varas distant; thence west 5,000 varas were measured and the second landmark was formed, from which a red oak 24 inches in diameter bears south 2 min. east 42.6 varas distant, and a pine 36 inches ip. diameter bears south 42 varas distant; thence south 5,000 varas were measured and a third landmark was formed, from which a black jack 7 inches in diameter bears south 88 deg. east 6 distant and another tree of the same kind 6 inches in diameter bears south 87 deg. east 6.5 varas distant; thence east 5,000 varas were measured to the southwest corner of a survey where the fourth and last landmark was formed from which a black jack 20 inches in diameter bears north 15 deg. west 28 varas distant; thence north along the west boundary line of a survey 5,000 varas were measured to the first landmark, thus completing the survey. * * * ”

Appellees object to the court’s consideration of appellant’s second, third, fourth, fifth, sixth, and eleventh assignments of error, and move the court to disregard said assignments, because they do not refer to the part of the motion for new trial wherein the error assigned is complained of, as required by rule 25, and object to the consideration of the second assignmelnt of error, because neither the assignment nor the statement thereunder shows that the assignment is predicated upon any bill of exception.

We sustain this objection to assignments Nos. 2, 3, 4, 5, 6, and 11, and we will not consider same, because they are not in substantial compliance with rule 25 for the Courts of Civil Appeals, as promulgated by our Supreme Court (142 S. W. xii), in that there is no reference to the motion for new trial in which the error was complained of in the court below; and assignments Nos. 2, 4, 5, and 6 for the further reason that said assignments, nor the statements thereunder, show that the assignments are predicated upon any bills of exception.

Assignments of error Nos. 4 and 11 refer to the page of the transcript for bills of exception, and while this court is not required to search the record for bills of exception not brought forward in the statement, we might not refuse to consider these assignments solely upon this objection. But assignments of error Nos. 2 and 6 do not show that there was any exception taken to tne matters complained of. In the statement under assignment No. 6, the page of the transcript where the charge complained of is given is referred to, but the author of the brief simply says in the statement that it was excepted to, and because it was upon the weight of the evidence. There is no proposition under the sixth assignment of error, hut it is submitted as a proposition of law.

Appellees also level an objection against the consideration of this assignment for the further reason that it is not in itself a proposition of law. We think that this objection is good; the assignment being as follows:

“The court erred in instructing the jury as follows: ‘You are instructed that if the testimony fails to satisfy your minds as to the whereabouts of the true locality of the Margarita Buye league of land by lines actually run, or by established corners appearing upon the ground, or enough of them to reasonably identify the land, then you will see if you can locate the same by reference to other calls in its field notes, being governed by the rules here-inbefore given you in this charge; that is, that generally natural objects are the highest, artificial objects next, and course and distance the lowest grade. Yet if, upon looking to the calls in the grant, and applying them to the lands in dispute, and considering all the surrounding and connecting circumstances, you are satisfied that the calls for course and distance from established corners show more satisfactorily where the true lines of the Margarita Buye league are, then you must establish said lines according to course and distance’—and in overruling defendant’s exceptions thereto, as shown in the fourth paragraph of the defendant’s exceptions to the charge.”

Neither the fifth assignment of error nor the statement thereunder shows what action the court took with reference to the objection raised, and no reference is made to a bill of exception, nor does the statement under the third assignment of error disclose the grounds of objection.

Appellees object to the consideration of appellant’s ninth and tenth assignments of error, because they complain of the court’s refusal to give special charges claimed to have been asked by appellant, and urge that the exception to the refusal of the court, and which is attached to the special charge, are defective, in that they fail to show that any of said special charges were submitted to opposing counsel for examination and objection at any time after the charge was given to the parties or their attorneys for examination, and further because, if the said assignments are submitted as a proposition, appellees urge that neither constitute a proposition of law.

The objection must be sustained, under articles 1970, 1971, and 1973, Vernon’s Sayles’ Civ. Stat. 1914. Floegge v. Meyer, 172 S. W. 194; I. & G. N. R. Co. v. Jones, 175 S. W. 490; Ry. Co. v. Bell, 62 Tex. Civ. App. 117, 130 S. W. 634; Hayward Lbr. Co. v. Cox, 104 S. W. 403; Boone v. Herald Newspaper Co., 27 Tex. Civ. App. 546, 66 S. W. 313. The purpose of the statute in requiring that special charges requested should be presented for the inspection of the opposing side was the preventing of errors. If the special charges complained of had been presented to the opposing side, they would have had an opportunity to have objected to or approved them. The record does not show that this was done, and we are compelled, under the statute, to hold the assignments insufficient.

The seventh assignment of error, being as follows:

“The court erred in overruling defendant’s exception No. 5 as shown in defendant’s exception to the charge as a whole. Tr. p. 34, XVIII,”

■— is objected to by appellees on the grounds that there is no error assigned, and that it is too general and vague to be considered. This assignment is entirely too general for consideration by this court.

The eighth assignment of error complains of certain remarks made by the plaintiff, H. Masterson, while arguing his case before the jury. No authority is cited to sustain the assignment, and, if it be conceded that the argument was without proper bounds, it appears that the trial court promptly instructed the jury not to consider the remarks of plaintiff so made, and that he at once withdrew the remarks. Ordinarily, this is regarded as sufficient correction of the error, and under the facts in this case we so regard it.

The twelfth assignment of error complains of the action of the trial court in sustaining the objections of appellees to the order of dismissal as to the defendants D. Sullivan et al. in the case of H. Masterson v. Sylvester Op-pice et al., No. 3682, in the district court of Liberty county, of date August 15, 1911; appellant insisting that, inasmuch as the ap-pellees had introduced in evidence a certified copy of a decree in said cause, they were entitled to offer said order of dismissal.

We think the testimony was irrelevant and immaterial, and could not affect the question of title or the question of boundary in the case. The proposition under the assignment is:

“Where a part of an instrument is offered in evidence, it should all be admitted.”

This rule has its limitations (Robertson v. Russell, 51 Tex. Civ. App. 257, 111 S. W. 209), and, besides, the document offered by appellant was a separate and different order made in the same case but on a different date. However, if the same, under any construction, is error, it must be classed as entirely harmless, and affords no reason for the reversal of the case.

This leaves assignment of error No. 1 only for consideration, which raises the question of the sufficiency of the evidence to sustain the verdict. All parties admitted and agreed that appellees have and hold title to that part of the Margarita Buye league of land sued for, wherever located, and that the issue was simply and solely a boundary question; the only issue of fact being the true location of the Buye league, and such issue took the form, of both sides presenting evidence to show the location of the league in question.

We are of opinion that there is testimony in the record to sustain the finding of the jury in favor of appellees’ contention, and, that being true, we feel impelled to accord with the settled rule and not disturb the verdict. The jury had all the facts before them, looked at the witnesses, heard their testimony, and observed their demeanor. They were in a better position to judge of the weight and degree of credit to be attached to their statements than we are by a mere inspection of the record. The jury are the exclusive judges of the credibility and weight of the testimony. We cannot say that the verdict in this case is clearly wrong, and we understand that, before we are justified in setting aside a verdict of a jury upon the insufficiency of the evidence, it is not sufficient that it does not appear clearly to be right, but that it must appear to be clearly wrong.

Witnesses for. appellant and appellees agree as to the accepted location of the northwest corner of the John Blair at a point marked by an iron bolt near Wolf’s Point. The Nicholas De Nava survey No. 1 calls for the northwest corner of the Blair as its southwest corner. It will be seen that the De Nava No. 6 calls for a six-inch pin oak for its northwest comer, and the Buye calls for an eight-inch white oak for its southeast corner, each, however, having the identical bearings, and there is testimony in the record that surveyors would frequently mistake a pin oak for a white oak. Now, the De Nava No. 7 calls to begin at a pin oak 6 inches in diameter bearing N. 2" E. 38.8 varas, running west 5,000 varas it calls for a red oak 24 inches bearing south 2 deg. east 42.6 varas, and a pine 36 inches bears south 42 varas, this being the northwest corner of the De Nava No. 7. - The southwest corner of the Buye also calls for a red oak 24 inches bearing south 2° east 42.6 varas, and a pine 30 inches bears S. 42 varas, the only difference in these two calls being that one of the bearing trees is stated as a 'pine 30 inches, while the other calls for a pine 36 inches, each bearing south 42 varas.

While these De Nava surveys are not recognized as legal, the surveys were actually made, and become important as connections from which other surveys could be located, based upon them. The trees and their bearings, called for as the northwest corner of the De Nava survey No. 6 and the southeast corner of the Buye, and those called for in the northwest corner of the De Nava No. 7 and the southwest corner of the Buye, being so nearly identical, we think the jury was justified, taking into consideration other facts in evidence, some of which we will discuss, to conclude that they were the same and identical trees as found by the original surveyor when he surveyed these various leagues.

The Buye, according to the original surveys, calls to begin about 2 miles west of Wolf’s point. This is its- southeast corner. By beginning at the accepted northwest corner of the Blair and running 5,000 varas west, we go 1,200 varas further west than “about two miles,” and we find at this point, by recourse to the field notes of the De Nava No. 6, trees almost identical with those called for as the southeast corner of the Buye, and by beginning at this point and running 5,000 varas further west for the Nicholas De Nava No. 7 north line, we find trees called for in the field notes as the northwest corner of this De Nava almost identical with trees called for as the southwest corner of the Buye.

But, should you locate the Buye in accordance with the contention of appellant, by beginning at the northeast corner of the Win. B. Reed survey, which calls to be about five miles west of Wolf Point, which is 9,500 var-as, you would have the Reed located 11,900 varas west of Wolf’s Point, or 2,500 varas further west than the field notes call for. The Win. B. Reed survey was not placed upon the official map of Diberty county until after 1882, as shown by the official map of Liberty county in use in the General Land Office from 1862 to 1882, and also the testimony of Land Commissioner J. J. Terrell. The testimony of the land commissioner further shows that the relative positions of the Wm. B. Reed and the Margarita Buye surveys upon the map of 1841 were the same as they appear upon the official map now in use, and which recognized the Buye survey to have the same position as was found by the jury.

. The testimony of R. C. Eubank, a surveyor, was to the effect that some sixteen or seventeen years before the trial, he found the marked southeast corner of the Margarita Buye league. He also testified that the location of the John Blair league had never been questioned. Surveyor Eubank further testified that when he made a survey of the Buye, some seven or eight years ago, he found a tree which he took to be the original corner tree of the Buye. He was not sure about this tree, but based his conclusion upon the appearance of the tree and his experience of 20 or 30 years in surveying land in the particular locality of the Buye league; that he relied upon the appearance of the age of the tree, but did not block the same out. He further testified that he found, several years prior to the trial of this case, a white oak which he took to be the southeast corner of the Buye; that it had a mark on it that was not the way comers are now generally made, but that they could be made both ways; that this tree was marked † instead of X; that one of the prongs of this mark was a little longer than the other and one of them nearer up and down the tree than the other, but that the common way of marking a corner tree was X, with a hack above and below, or with two hacks above and bel'ow; that there was no ironclad custom about that; that every surveyor had a peculiar way of marking, which is merely characteristic of the surveyor.

It is shown by the testimony that most ot the timber now standing in this vicinity is not over 30 or 40 years old, most of the older trees having yielded to the ax and have long since been manufactured into timbers and lumber, which accounts for the scarcity of any line or corner trees. Surveyor Compton, who testified for appellants, as shown by his map, locates Wolf’s Point approximately at the northwest corner of the Blair, as testified by Surveyor Eubank, and the effect of his testimony recognizes the Blair as being located upon the ground at the same point where the official map now places the same, and where Surveyor Eubank places the same.

We do not deem it incumbent upon us to discuss the testimony of appellees, mainly that the description as to the character of land in some of these leagues and their drainage as described by the original surveyors do not correspond to the land as located according to the contention of appellees and the verdict of the jury. There is no conflict, as we recall, as to the calls in the description of these various surveys as contained in the original field notes. Inasmuch as this is a boundary question, and as every boundary suit must stand upon its own facts, a further discussion of the evidence would not be of importance to the profession. We think that the evidence was sufficient for the jury to conclude that the northwest corner of the Blair was at a certain iron bolt and that by locating the De Nava No. 6 by running west 5,000 varas, that the corner trees called for as the northwest corner of this De Nava are the same and identical trees called for as the southeast corner of the Buye, and thereby ties the Blair and puye with the De Nava No. 8 as a connection, and that the trees called for as the northwest corner of the De Nava No. 7 are the identical trees called for as the southwest 'corner of the Buye, and that, based upon these corners, the Buye is located as decided by the jury, with its southeast corner at a fish plate, which was placed several years ago by a man by the name of Jones, 5,000 varas west of the northwest corner of the Blair, and that by resorting to course and distance the Buye can be located with reasonable certainty by the calls for course and distance.

Tiie court,properly charged the jury as to the controlling calls and their relative dignity — first, recourse to natural objects; second, artificial objects; and, third, to course and distance. It is the estatblished law in Texas that the true and correct' location of land is ascertained by the application of all or any of these rules to the particular case, and, while course and distance are the most unreliable calls, still, in the absence of the other more reliable, resort will be made to course and distance for the location of land.

The judgment of the lower court is affirmed.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    SOUTHERN TRACTION CO. v. ROGERS et ux.
    (No. 5878.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 16, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Street Railroads t&wkey;l03(l) — -Injuries to Persons — Last Clear Chance Doctrine.
    No recovery can be had under the last clear chance doctrine in the absence of proof that defendant’s motorman discovered deceased’s peril in time, by the exercise of due care and the use of the means at hand, to have prevented injury.
    2. Street Railroads <&wkey; 103(1) — Injuries to Persons — Last Olear Chance Doctrine-Knowledge, oe Danger.
    In action against railroad for death of a person on the track, under the discovered peril doctrine, negligence in failing to discover deceased’s perilous situation is immaterial.
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by G. C. Rogers and wife against the Southern Traction Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    W. L. Templeton, Nat Harris and Allan D. Sanford, all of Waco, for appellant. R. L. Allen and Forrester & Stanford, all of Waco, for appellees.
   KEY, C. J.

Appellees concede the correctness of the following statement of the nature and result of this suit contained in appellant’s brief:

“G. C. Rogers and wife, Lucy Rogers, instituted this suit in the district court for the Nineteenth judicial district of Texas, on September 13, 1916, for the recovery of damages resulting to appellees from the negligent killing of their son, Howard Rogers, a boy between the age of 16 and 17 years. Appellees allege that their said son was killed at the station Lacy on the line of the Southern Traction Company, on or about the 29th day of June, 1915, about 12:40 a. m., on said day; that the said Howard Rogers came to his death by reason of being run over or struck by one of appellant’s cars being operated between the city of Dallas in Dallas county, Tex., and the city of Waco in McLennan county, Tex.; appellees in their petition alleging that the motorman in charge of said car saw their said son on or near appellant’s track in-a place of danger, and that the said motorman realized the peril of the boy in time so that by the use of all the means at hand he could have avoided killing or injuring said boy; that the motorman negligently failed and refused to use the means at hand to arouse their son to a sense of his danger, and wholly failed to use all the means at his command to avoid running over and killing their said son; that appellees further alleged that the said motorman, after discovering the peril and danger of their said son, wholly failed to put the car under proper control, or stop the same, or attempt to stop the same, and wholly failed to use all the meansi at his command for this purpose, so as to'avoid injuring their said son; that by reason of said wrongful conduct and negligent failure of the appellant, through its said motorman, said car ran onto and struck their said son and so injured and wounded him that he died a few minutes thereafter; that said negligence and wrongful conduct of appellant, was the proximate cause of their said son’s deatL; that at the time of the death, of their said son he was earning from $1 to $1.50 per day, and, had he not been killed, as he grew older would have made from $50 to $75 per month; that the said son was dutiful and affectionate, was the youngest child of appellees, and the support and maintenance of these appel-lees ; that by reason of the negligent acts of appellant they were damaged in the sum of $10,-000. Appellant answered by general demurrer and general denial, and specially pleaded contributory negligence of the said Howard Rogers, in that the said Howard Rogers went on and upon appellant’s right of way with a full knowledge of the fact that cars of appellant passed the point at said Lacy station every hour, and with full knowledge that a car was due to pass said point shortly after 12 o’clock, and that appellees’ said son knew the dangerous nature of said place and voluntarily and deliberately and negligently went upon appellant’s said track and went to sleep, and that if he was injured his injuries were the result of the contributory negligence of appellees’ said son in thus going to sleep on the track of appellant. Appellees by way of supplemental petition excepted to paragraphs .3, 4, and 5 of appellant’s answer, wherein appellant pleaded contributory negligence, the ground of appellees’ exception being that recovery was sought upon the ground of discovered peril, to which’ contributory negligence constitutes no defense. Upon hearing said exception the court sustained the same, to which action of the court in sustaining appellees’ exception, as set forth in appellees’ supplemental petition, appellant in open court excepted. This cause was tried to a jury and resulted in a verdict for the appellees in the sum of $1,000, and judgment in favor of appellees was entered against this appellant for $1,000.”

Opinion.

All the questions of law presented by this appeal are well settled by former decisions in this state, and without discussing them here, we content ourselves with the statement that all of the assignments of error presented by appellant, except those which complain of the verdict, are overruled.

The plaintiffs’ right to recover was based solely upon the ground of discovered peril, and in such cases it is well-settled law that no- recovery can be had unless it be shown that the defendant, or his employs acting for him, became aware of the perilous situation of the injured party in time, by the exercise of reasonable and proper care, to have prevented the injury by the use of means at hand. When that rule of law is applied to railroad trains, it is immaterial that the person operating the train may have been guilty of negligence in not discovering the perilous situation of the person injured, because the duty to prevent injury does not exist until the person operating the train has knowledge of the fact that the other person is in a perilous situation.

In this case the verdict of the jury involves the finding to the effect that the mo-torman in charge of the car which struck and killed Howard Rogers discovered his perilous situation in time to have avoided striking him by the use of the means at his command, and that he negligently failed to do so. It would serve no useful purpose for us to recite and discuss the testimony bearing upon that vital issue, and therefore we content ourselves with saying that, in our opinion, the finding of the jury upon that question is not sustained by the evidence; at any rate, it is .so contrary to the overwhelming weight of the testimony that we feel constrained to hold that the trial court should have granted, appellant’s motion, and set the verdict aside.

Appellant has requested this court to reverse and render judgment in its behalf, and, while we have had some difficulty in that regard, we have reached the conclusion that the case should be remanded for another trial.

Reversed and remanded.
      <&wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GREEN v. PRINCE.
    (No. 5945.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Appeal and Error <&wkey;>-1175(6) — Reversal —Rendering Judgment — Agreed Facts.
    In a case tried upon agreed facts, where the trial court does not render the proper judgment, it is the duty of the court of Civil Appeals to render the judgment which should have been rendered by the trial court.
    2. Landlord and Tenant <&wkey;321 — Renting on Shares — 'Validity oe Contracts.
    Rev. St. 1911, art. 5475, as amended in 1915 (Acts 34th Leg. c. 38 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5475]), prohibits leases of land for agricultural purposes where the landlord furnishes everything except the labor, and tiie tenant furnishes the labor, and the landlord, directly or indirectly, charges a rental of more than one-half of the value of the grain or cotton raised on the land, and gives the tenant a right of action for double the amount of rent or money received or collected by the landlord in violation or evasion of that article. A landlord, in addition to furnishing everything necessary to produce a cotton crop, agreed to and did furnish a house for the tenant on a different tract of land, one-fourth of an acre of land for garden purposes, pasturage for a horse, and a wagon and team to haul firewood, and also paid the expenses of ginning the cotton, made arrangements whereby the tenant could purchase supplies on the landlord’s guaranty, and furnished the tenant employment when not engaged in cultivating and harvesting the cotton crop. Held that, though the landlord received one-half of the cotton and all of the cotton seed, the statute did not apply whore it did not appear that when the contract was made the value of the cotton seed and of the things agreed to be done by the landlord was agreed upon, and that the agreed value of the cotton seed exceeded the value of the landlord’s obligations, though the parties designated the cotton seed as rental, since it nevertheless constituted part at least of the consideration for the landlord's obligations in addition to furnishing everything needed to raise the crop.
    3. Penalties &wkey;>33 — Actions eor Penalties —Burden oe Proof.
    One suing to recover a statutory penalty must produce proof that brings his case strictly within the terms of the statute.
    Appeal from Travis County Court; D. J. Pickle, Judge.
    Action by Henry Prince against Wyatt Green. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    White, Cartledge & Wilcox and J. B. Robertson, all of Austin, for appellant. Faulk & Monroe, of Austin, for appellee.
   KEY, C. J.

This case was disposed of in the trial court upon the following agreed statement of facts:

“(1) That on or about the 1st day of December, A. D. 1915, plaintiff and defendant, both being citizens of Texas and of the United States, entered into a contract by the terms of which defendant rented and leased to plaintiff for a period of one year, beginning on the 1st day of January, 1916, and ending on the 31st day of December, 1916, 15 acres of black prairie land, all of which was in cultivation and belonging to defendant, located about four miles from the town of Creedmoor, in Travis county, Texas, together with one small dwelling house to be occupied by plaintiff and Ms family during said term and while engaged in preparing said land and cultivating and gathering a crop on same during said term; that by the terms of said contract it was agreed that plaintiff was to furnish the labor necessary to produce a cotton crop on said land during said term, and defendant was to furnish all teams, tools, and other necessary equipment and appliances for cultivating and producing and harvesting a crop of cotton on said land. It was> further expressly agreed by the parties that plaintiff was to pay to defendant as rent for the use and occupancy of said land and premises during said term one-half of all lint cotton, or one-half of the proceeds of the sale of such, lint cotton, produced on said land during said term, and that plaintiff was to pay to defendant as a part of such rental all of the cotton seed produced on said land during said term; that the residence agreed to be furnished plaintiff is situated upon another and different tract of land situated about 800 yards from the 15-acre tract. It was further agreed as a part o-f said contract that the defendant was to pay all ginning charges on cotton produced upon said land during the term of said lease, and was to make arrangements whereby plaintiff could secure from a mercantile establishment in the neighborhood groceries and other supplies reasonably needed by him and his family during the term of said lease, the defendant to guarantee payment therefor. Defendant, as a part of said contract, further agreed to hire the plaintiff to work upon other land owned by him in said neighborhood during the term of said lease and during the time plaintiff was not occupied in labor upon said 15-acre tract, and to pay to plaintiff for such labor the sum of $1 per day. Defendant further agreed to permit the plaintiff to turn one horse owned by plaintiff into defendant’s pasture during the term of said lease without charge, the reasonable market value of such privilege at said time .and place being $1 per month. Plaintiff in said contract was given the privilege of using and cultivating during the term of said lease one-fourth acre of land in another tract for the purpose of cultivating and raising vegetables, all vegetables raised thereon to belong to plaintiff; defendant further agreeing to permit plaintiff to use in cultivating said one-fourth acre tract all implements, teams, and tools reasonably necessary therefor. It was further agreed that defendant was to furnish plaintiff the use of a wagon and team for hauling wood necessary for the use of himself and family.
“(2) That pursuant to the terms of said contract the plaintiff immediately entered into possession of said land and premises, and prepared for cultivation and planted and cultivated and harvested a crop of cotton on said 15 acres of land during said term, and actually produced on said land during said term 6½ bales of lint cotton, which said lint cotton was of the reasonable market value of, and was actually sold for, the sum of $507.54; that the defendant paid to and for the plaintiff the sum of $253.77, same being one-half of said amount of $507.54 received from the sale of said lint cotton, as per the terms of said contract; that plaintiff produced on said land during said term cotton seed aggregating 5,525 pounds, 'all of said cotton seed being delivered by plaintiff to defendant in Travis county, Texas, the defendant retaining as a part of the rent for said land all of said cotton seed and all of the proceeds of the sale thereof, in accordance with the terms of said contract; that the reasonable market value of said cotton seed at the time same was delivered to the defendant was the sum of $110.50; that the defendant paid for the ginning of said cotton so produced by plaintiff the 'sum of $25.54.
“(3) That the plaintiff is a married man with a family, and has been engaged in the occupation of farming continuously for several years; that plaintiff furnished all the labor for preparing said land for a crop, and for planting, cultivating, gathering, and delivering said crop of cotton and cotton seed to the .defendant, and did and performed all of the acts agreed to be performed by him under the terms of said contract; that the defendant furnished to plaintiff the 15 acres of cultivated land, the dwelling house upon a separate tract, procured groceries and other supplies needed by plaintiff and guaranteed the payment therefor, employed plaintiff in work upon other land during such times as plaintiff was not engaged in labor upon the 15-acre tract and paid to plaintiff therefor the sum of $1 per day, furnished to plaintiff pasturage for one horse without charge and furnished to plaintiff the one-fourth acre of land in another tract for a garden, and furnished the necessary tools and teams to cultivate same, furnished plaintiff with the use of a wagon and team for hauling wood, and did and performed all the acts required of him under the terms of said contract.
“(4) That the reasonable market value of said tract of 15 acres at the time said contract was made was $150- per acre; that the reasonable market value of said dwelling house at said time was $250'; that the reasonable market value at said time and place of the teams, tools, and implements exclusively used by plaintiff and furnished to him by defendant was $250, making an aggregate value of land, house, teams, tools, and implements of $2,750; that under said contract defendant was required to and did furnish feed for teams used as aforesaid, seed' for planting, blacksmithing in connection with cultivation of said tract, cotton sacks for gathering said cotton, ginning of said cotton, and had to pay taxes due the state of Texas and the county of Travis, the aggregate of such expenses being $204.25, all of which was actually and necessarily incurred by defendant in carrying out his sajd contract with plaintiff; that all of said sums paid were reasonable prices for the articles and services procured; that the aggregate revenue received by defendant from the sale of his portion of the lint cotton and all the cotton seed produced on said tract during the term of said lease was $363.47; that, after deducting the expenses aforesaid, the net revenue from said tract of land for said term was $159.22, the same being a'net revenue of 57/io per cent, on the market value of land and residence, teams, tools, and implements exclusively used thereon as aforesaid; that the cotton and cotton seed raised during said year sold at a much greater price than the average price for many years preceding; that under ordinary conditions and with average prices the said land, teams, tools, and implements would produce a much smaller net return on their value under a contract similar to that herein involved ; that if defendant be not permitted to retain the value of all the cotton seed produced -on said tract of land during said year, his return on said market value will still further be reduced ; that .the current rate of interest in Texas at the time said contract was made and ever since was and is 8 per cent, per annum; that said tract of 15 acres is rich black land, free from noxious weeds, and easily cultivated; that there was and is one schoolhouse within 200 yards of said land and another within one mile, each being public free schools, with proper equipment and competent teachers; that said land is easily accessible to churches, markets, and cotton gins; that good roads lead from said tract to all neighboring towns, and said land has an abundant supply of pure water; that the surroundings are healthful, and the neighborhood a desirable one in which to live; that there is and was at said time in Travis county and in many sections of Texas a large quantity of land of equal productiveness, which will, when rented on the same terms as those embodied in the contract involved herein, produce as much rental revenue per acre as said tract, but which was at said time, and is, by reason of less desirable location and other conditions, of much less market value; that the cultivated agricultural land in Texas is divided into thousands of tracts of various sizes, owned by various people; that it was at said timo and now is the universal practice of owners of such land either to rent it or.to cultivate it themselves; that the restriction of rental that may be charged for agricultural land has not, will not, and cannot cause any additional land in Texas to be devoted to the production of cotton, grain, or other crops, or increase'the production thereof, or affect the price ultimately paid by the consumer; that the agricultural land in Texas varies greatly in productiveness, ease and economy of cultivation, presence of insect pests, accessibility to schools, churches, markets, and towns, character of houses and improvements situated thereon and the conveniences and value thereof, and much land is rented for agricultural purposes where no houses or improvements are furnished in connection therewith; that some of the land is situated in arid regions and some in regions with ample rainfall; some land is irrigated and some not, the former being of much greater value and commanding a higher rent; some land is situated in sections which are unhealthful; that social surroundings vary greatly, and strongly affect the market value of land; that, due to the above differences in conditions, the rental value of lands situated in Texas varies greatly.”

Opinion.

In 1915 the Legislature amended article 5475 of the Revised Statutes (Acts 34th Leg. c. 38 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5475]), which secured to landlords a preference lien where land is rented for agricultural purposes, by adding thereto the following language:

“Provided, however, this article shall not apply in any way nor in any case where any person leases or rents lands or tenements at will or for a term of years for agricultural purposes where the same is cultivated by the tenant who furnishes everything except the land, and where the landlord charges a rental of more than one-third of the value of the grain and more than one-fourth of the value of the cotton raised on said land; nor where the landlord furnishes everything except the labor and the tenant furnishes the labor and the landlord directly or indirectly charges a rental of more than one-half of the value of the grain and more than one-half of the value of the cotton raised on said land, and any contract for the leasing or renting ot land or tenements at will or for a term of years for agricultural purposes stipulating or fixing a higher or greater rental than that herein provided for, shall be null and void, and shall not be enforceable in any court in this state by an action either at law or in equity, and no lien of any kind, either contractural or statutory, shall attach in favor of the landlord, his estate or assigns, upon any of the property named, nor for the purpose mentioned in this article; and provided, further, that if any landlord or'any person for him shall violate or attempt to evade any of the provisions of this article by collecting or receiving a greater amount of rent for such land than herein provided, shall be collected or received by him upon any contract, either written or verbal, the tenant or person paying the same, or the legal representatives thereof, may, by an action of debt instituted in any court of this state, having jurisdiction thereof, in the county of the defendant’s residence or in the cojinty where such rents or money may have been received or collected, or where said contract may have been entered into, or where the party or parties paying the same resided when such contract was made, within two years after such payment, recover from the person, firm, or corporation receiving the same, double the full amount of such rent or money so received or collected.”

In the case at bar, Prince, the tenant, sued the landlord, Green, to recover the penalty prescribed by that act. The trial court rendered judgment for the plaintiff, and the defendant has appealed, and seeks reversal of the judgment, first, upon the ground that the amendment to the statute passed in 1915, and set out above, is violative of certain provisions of both the federal and state Constitutions; and, second, that if such is not the case, and the amendment is valid legislation, still, when it is applied to the facts agreed upon in this case, appellee is not entitled to recover, and judgment should be rendered for appellant.

We have reached the conclusion that appellant’s second contention is correct, and therefore it is not necessary for this court to pass upon the constitutional questions presented by appellant’s counsel, and we express no opinion upon that subject. In other words, if it be conceded that the statute is free from constitutional objection, and is a valid law, still, if the facts proved fail to show that the plaintiff was entitled to recover the penalty sued for, the trial court should have rendered judgment for the defendant, and, as the case was tried upon agreed facts, it becomes the duty of this court to render the judgment which should have been rendered by the court below.

Turning, then, to the agreed facts, and applying to them the statute in question, is it made to appear with that certainty required in suits of this character that the plaintiff was entitled to recover the penalty which is prescribed by the statute? By the terms of the rental contract, as alleged in plaintiff’s petition, it was agreed that the plaintiff was to furnish the labor necessary to produce a cotton crop on the 15-acre tract of land, and defendant • was to furnish all teams, tools, feedstuffs' and other necessary equipment and appliances for cultivating, producing, and harvesting a crop of cotton on the land. It further appears from the contract, as disclosed by the statement of facts, that the plaintiff was to furnish to the defendant, not only the 15 acres of land which defendant was to cultivate in cotton, but was also to furnish him a residence upon another and different tract of land situated about 800 yards from the 15-acre tract, one-fourth of an acre of land to be used for garden purposes, pasturage for one horse, and a wagon and team to haul firewood for the use of himself and family; was to pay the expenses of ginning the cotton; was to make arrangements by which the plaintiff could purchase supplies on credit, and was to guarantee the' payment thereof; and was to furnish the plaintiff employment, and pay him $1 per day therefor during the time that he was not engaged in cultivating and harvesting the ‘cotton crop. The consideration which rendered binding the foregoing obligations assumed by the defendant was the. obligation upon the part of the plaintiff to deliver' to the defendant ono-half of the cotton and all of the cotton seed produced upon the 15 acres of land.

The plaintiff’s suit is based upon the theory that the contract by which the defendant was to have half of the cotton and all of the cotton seed was in violation of the statute, and that when the defendant received the same he became liable for the prescribed penalty. In other words, appellee’s contention seems to be that the statute prohibited the defendant from receiving more than one-half of what was produced upon the land, and, therefore that when he contracted for and received all of the cotton seed, as well as half of the cotton, he violated the law and became liable for the penalty. That contention might be sound if the defendant, as landlord, had not furnished more than he was required to do by the statute, or by the contract, as alleged in the plaintiff’s petition. A fair and reasonable construction of the statute shows that it was intended to apply to general conditions in which land was rented for agricultural purposes upon one of two kinds of contract; viz., where the tenant furnishes labor, teams, implements, and all other things necessary to make and harvest the crop; and the other where the tenant furnishes the labor only, and the landlord furnishes the other things necessary to make the crop. The plaintiff has sought to bring this case within the latter class, hut the proof shows that the defendant, who was the landlord, obligated himself to do more than furnish those things that were necessary to raise a crop upon rented premises; and for those additional things he had the right to contract for compensation in addition to his right to contract for one-half of the products of the land. The additional things referred to, and for furnishing which the landlord had the right to contract for compensation, consisted of the use ofi a house situated upon a different tract of land, payment of all the expenses of ginning, when, as between him and the plaintiff, he was only liable for one-half, furnishing the plaintiff pasturage for one horse, shown to be worth $1 per month, furnishing him one-fourth of an acre of land as a garden, a wagon and team to haul firewood, and obligating himself to furnish the plaintiff employment at a stipulated price, and to become a surety to enable him to buy his supplies. The proof .fails to show that any of these things were necessary to make and harvest the crop that was made and harvested on the land, and therefore it is not shown that the defendant did not have the right to contract for and receive all the cotton seed as compensation for the things referred to.

It is a well-settled principle of law, often announced and applied by our own Supreme Court, that when) an action is brought for the purpose of recovering a statutory penalty, the plaintiff must produce proof that brings his case strictly within the terms of the statute. The rule referred to applies, even though in the main the statute may be remedial. For instance, in Schloss v. A., T. & S. F. Ry. Co., 85 Tex. 601, 22 S. W. 1014, which was a penalty suit under a statute which makes it unlawful for railroads to demand or receive a greater sum for transporting freight than is specified in the bill of lading, and prescribes a penalty which may be recovered by the owner of the freight when the railroad refuses to deliver it after tender has been made of all charges shown by the bill of lading. In that ease the charges were not specified in, or shown by, the bill of lading, but were specified and shown in the expense account rendered to the owner by the railway. In denying the right' of plaintiff in that case to recover, among other things the Supreme Court said:

“This act is both remedial and penal. In Sutherland on Statutory Construction'it is said: ‘The general purpose and aim of a statute may be remedial, as where they provide punitive compensation to the injured party. But the pi'ovisions that enforce the wrong for which a penalty is provided and those which define the punishment are penal in their character, and must be construed accordingly. . A statute may be remedial in one part and penal in another.’ Suth. on Stat. Con. § 208.
“For the shipper the act provides that, upon making payment or tender of the charges for transportation as shown in the bill of lading, he shall have possession of his goods; and in the third section the means of enforcing the right is given in the way of punitive damage. From this standpoint the statute is remedial. It was from the shipper’s standpoint that the court viewed the act in Railway v. Harry & Bros., 63 Tex. 256, in which the right of the Legislature to enact the law for the benefit of the shipper was the question. As to the railway company it is penal, for in the first section it declares certain acts to be unlawful, in the second section it enjoins a duty, and in the third it denounces against the railway company a penalty for violating the previous sections.
“In the case of Railway v. Dwyer, 84 Tex. 198 [19 S. W. 470), the question was whether the bill of lading was such as is mentioned in the act so as to render the railway company liable, and from this standpoint the court .declared the statute to be penal. Whether it be remedial or penal, it is certain that the appellant’s right of action is strictly statutory. Without' the statute, he had the right to recover compensation for the detention of his goods after payment or tender of the amount due. This right is not taken away or modified by this act. But without this statute he could not recover the damages or penalty specified in it. Therefore he must bring himself strictly within the provisions of the acts. Suth. on Stat. Con. § 398; De Witt v. Dunn, 15 Tex. 106; De la Garza v. Booth, 28 Tex. 478 [91 Am. Dec. 328]; Scogins v. Perry, 46 Tex. 111; Murray & Bro. v. Ry., 63 Tex. 407 [51 Am. Rep. 650]. * * *
“One of the loading purposes was to punish the failure to perform the duty enjoined by the law. The caption says that penalties are provided, and in the third section_.it is said that the railway company shall bo liable to the owner of t„. j • goods in damages, etc. Calling it damages does not change the character of it. The sum to be recovered is not in any respect compensatory for the injury sustained by the detention of the goods; the extent of the injury is not taken into account. It is an arbitrary sum, fixed, not according to the value of the property, nor governed by the value of their use, but by the sum due as shown by the bill of lading. It is a penalty in every respect, as much as if it had been so declared, and was intended as a punishment of the railway company for a violation of the law.”

See, also, Railway Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225; T. & P. Ry. Co. v. Hughes, 99 Tex. 533, 91 S. W. 567.

We have not overlooked the fact that the agreed facts contain the recital that it was expressly agreed by tbe parties “that tbe! plaintiff was to pay to the defendant, as part of such rental, all of tbe cotton seed produced on said land during said term.” But in construing tbe contract all of its terms and stipulations must be considered; and when that test is applied it cannot be doubted that appellee’s promise to deliver to appellant all tbe cotton seed constituted at least part of tbe consideration for appellant’s promise to do tbe things hereinbefore referred to that were not shown to be necessary to. make and harvest the crop, and therefore it is immaterial that appellant’s right to the cotton seed was designated by the parties as rent for the land. In the Schloss Case the statute designated the plaintiff’s cause of action as damages, but the Supreme Court held that such designation could not change its character as a penalty, and that it lacked essential elements of damages. So in this ease, whatever constituted the consideration for appellant’s obligation to do things not necessary to producing and harvesting the crop was not in fact rental, and the parties so designating it did not make it such.

What was said in the Schloss Case is equally applicable to the instant case. While the facts show that the defendant contracted for more than one-half of the products of the land to be cultivated, it also shows that he obligated himself in several respects beneficial to the plaintiff beyond his agreement to furnish the land, teams, implements, and other things necessary to make and harvest the crop; and as the proof does not show that at the time the contract was made the value of the things referred to, and of the cotton seed thereafter to be raised, was agreed upon, with a result that the agreed value of the cotton' seed was in excess of the value of the things referred to, it does not appear that the defendant contracted for or received more for the rent of the land than one-half of what was produced thereon. Hence we conclude that the agreed statement upon which the case was tried fails to show that appellant has violated the statute, and therefore the judgment of the court below is reversed, and judgment here rendered for appellant.

Reversed and rendered.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURV, J.

text:
    SMITH v. HOFFMAN.
    (No. 7898.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1918.
    Rehearing Denied March 2, 1918.)
    Teiad <&wkey;333 — Veedict — Amount—Responsiveness to Issues and Evidence.
    Where plaintiff was entitled to judgment for $294.74, tho difference between contract and market prices of cotton on .date defendant breached delivery, or nothing, a verdict for plaintiff for $50, presumably based upon a compromise offer before suit, is not responsive to either issues or evidence, and must be set aside.
    Appeal from 1-Iill County Court; J. D. Stephenson, Judge.
    Suit by A. L. Smith against H. Hoffman. Judgment for plaintiff in part, and he appeals.
    Reversed and remanded.
    J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellant. J. D. Abney and R. M. Vaughan, both of Hillsboro, for ap-pellee.
   RASBURV, J.

Appellant sued appellee for $294.74 alleged to be the damages accruing to him by reason of appellee’s failure to deliver 25 bales of cotton sold under parol agreement by the latter to the former. There, was trial by jury, resulting in verdict for appellant for $50, followed by similar judgment, from which this appeal is taken.

The issues presented in the brief of appellant are, in substance, that the verdict is without support in the evidence. Accordingly it is necessary to state the essential facts dedueible from the evidence. Those in support of appellant’s theory of the transaction are that''at some time after 11 o’clock of the morning of October 11, 1916, in Hillsboro, appellee sold appellant 25 hales of strict middling cotton of the approximate weight of 530 pounds per bale, at the agreed price of $16.07½ per hundred pounds, in evidence of which appellant gave appellee a written memorandum or “cotton ticket,” stating the number of bales, the price and grade agreed on, and that payment was to he made through Citizens’ National Bank. Appellee represented to appellant that he was in possession of and prepared to deliver the cotton. No agreement was made at the time of purchase when the cotton should be actually delivered, hut when appellant learned, within two or three days after the purchase of the cotton, that delivery had not been made through the customary medium of tickets and checks passed through the local banks, he called upon appellee, who explained that delivery had not been made because the cotton he had was not of the grade sold. At this time appellant insisted that the cotton he delivered, and appellee promised it would be. About this time appellant was called away for several days, and upon his return again demanded that appellee deliver the cotton. Ap-pellee again requested further time, and appellant agreed to wait until the following day, which was the tenth day after the sale. Ap-pellee did not deliver the next day, whereupon appellant bought in the local market 25 bales of cotton weighing 13,173 pounds to take the place of that sold by appellee, and which appellant had in turn sold, paying therefor the prevailing market price, and which was $294.74 in excess of the price agreed to be paid to appellee for his cotton. It is customary in the Hillsboro market to deliver cotton at any time within 10 days after purchase, when sold under the terms and circumstances surrounding the sale by appellee to appellant.

The facts dedueible from the evidence which support appellee’s theory of the contract are that at the time stated appellee did sell appellant 25 hales of strict middling cotton at $16.07½ per hundred pounds, to he delivered the day of the purchase. Appellee did not deliver the cotton as agreed, for the reason that when he went to the bank and checked up his holdings he ascertained he did not have the cotton he had sold, although he, in good faith, believed he had when he sold it. Appellee had no knowledge of the custom that allowed seller 10 days within which to make deliveries after sale. Appel-lee discussed with appellant his failure to deliver the cotton, and in several conversations told -appellant he would deliver the cotton if he could buy it at the price he could have bought it on the day he sold.

Upon consideration of the conflict in the facts concerning the sale and purchase of the cotton, it is apparent that a verdict upon either theory would have been warranted; that is to say, a verdict for appellant for the amount sued for or the difference between the amount at which he bought from appel-lee and the amount which he paid for a similar amount and grade of cotton after appel-lee refused to deliver, or a verdict in favor of appellee. Incidentally, it was pleaded by appellee, and is argued here, that appellant, at most, was entitled to recover $1.87, the ■difference between the price at which h& bought from appellee and the market price •on the day agreed upon for delivery. While that fact is not of controlling importance, .yet we are unable to find in the record any evidence concerning the market price of the •cotton on the day upon which appellee claims delivery was to be made.

Recurring, then, to the issue made by appellant, do the facts related warrant the verdict? We conclude they do not, since the verdict is responsive to neither the issues nor the evidence. We readily concede it to be the function of the jury to find the facts, to Teconeile conflicts in the evidence, to discard ■facts supporting one theory and to adopt those supporting another; also the wisdom ■of the resulting rule that denies to appellate ■courts authority to invade such jury functions. At the same time, the verdict must •be founded upon facts reasonably dedueible from the evidence. The verdict in the instant case is for appellant for $50, and, fairly put, is unwarranted. To have found any amount for appellant above the amount of $1.87 pleaded by appellee as his damages, assuming it was proven, was to adopt his theory of the contract. When that conclusion was reached, the amount of his loss as a result of appellee’s failure to deliver the cotton was without contradiction, and an award for less damages than those proven, particularly when the amount was liquidated and did not call for the exercise of any discretion by the jury, is a finding without support in the evidence, in that it is in disregard of unimpeached evidence and not compensatory. Upon what theory the verdict was awarded we are unable to say, unless it was upon the testimony of appellee, which we find in the record, that appellant offered at one time to accept- $50 in compromise of his claim. Such offer of course cannot, for obvious reasons, support the verdict. We are not to be understood as saying that the appellant was or that appellee was not entitled to prevail in the contest, but only that the verdict as rendered was incorrect for the reasons stated, and as a consequence it becomes our duty to reverse the judgment and remand the case for another trial not inconsistent with the views herein expressed.

Reversed and remanded.
      ^»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    TEXAS POWER & LIGHT CO. v. TAYLOR.
    (No. 7895.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1918.)
    1. Electricity <&wkey;ll — Discontinuance of Telephone Service — Deposit to Secure Performance.
    The act of a lighting company in discontinuing service without notice upon user’s default for past month’s service, held proper, where contract provided for discontinuance on default, and it was immaterial that the amount due was not in excess of the amount deposited by user to secure faithful performance of contract.
    2. Damages <&wkey;49 — Mental Suffering Alone.
    That one became angry because of his light service being cut off for nonpayment, which service was renewed immediately upon payment and request, does not entitle him to recover thereon for mental suffering alone, there being no personal injury, damage to property, or other loss sustained.
    Appeal from District Court, Hill County; Norton B. Porter, Judge,
    Suit by H. G. Taylor against the Texas Power & Light Company. Judgment for plaintiff. Defendant appeals.
    Reversed and rendered.
    Templeton, Beall & Williams, of Dallas, and Collins, Morrow & Morrow, of Hillsboro, for appellant. J. J. Averitte and Wear & Erazier, all of Hillsboro, for appellee.
   RAINEY, C. J.

Appellee sued appellant to recover actual damages in the sum of .$600, and exemplary damages in the sum of $1,000, alleged to be due fon a wrongful and malicious discontinuance of electric light from his residence, the purpose being to punish ap-pellee and to injure him in his credit and reputation, and for the purpose of causing him pain and mental anguish and chagrin, etc. Appellant answered by general and special exceptions, general denial, and specially that appellee had been notified of one monthly bill which had not been paid at the time and which was past due, and at said time the amount due exceeded the amount deposited by appellee. The exceptions were overruled. The case was submitted on special issues to a jury, and judgment was rendered therein for appellee, and appellant appeals.

The evidence shows that appellant was a public utility corporation, furnishing the citizens of the town of Hillsboro with electric current for lights, and had been furnishing electricity for lighting appellee’s residence in said town under a contract which provides, among other things, in substance:

“First section: Provides that customers will pay for their service at established rates, and at least seventy-five cents as minimum for readiness to serve charge. ’
“Second section: Provides that customers'will secure rights of way.
“Third section: Customers will not increase connected load without notice, and, if after notice, the load be increased, customer will pay prescribed rates and minimum charge for such altered service.
“Fourth section: Provides that customers’ wiring shall be insulated properly and in accordance with governmental regulations.
“Fifth section: Provides that agents of company shall have access to customers’ premises at reasonable hours for purpose of inspecting wiring, meters, etc.; that the customer shall protect the company’s property on his premises; that customer assumes responsibility for current after its delivery to him, and agrees to hold the company harmless for injury or damage to persons or property occurring on customers’ premises after delivery of current, except where caused solely by negligence of the company.
“Sixth section: Provides the company agrees to make reasonable provisions to insure satisfactory and continuous service, etc.
“Seventh section reads as follows: ‘If the customer shall default in any of said payments of ten days, or shall make default in the performance of any other covenant hereunder, the company may at any time during the continuance of such default, without notice and without liability therefor, discontinue service to the customer. hereunder until such default is cured, but such discontinuance shall not lessen or change the customer’s obligation or affect the amount which shall become due and payable hereunder. During an- such default, and after ten days’ warning, the company may, at its option, by written notice tp the customer, terminate its obligations hereunder. Nothing herein contained, however, nor any action taken b-the company in pursuance hereof, shall impair any other remedy which the company might have, at law or in equity, for any breach of this contract by the customer.’
“Ninth section: Unless written notice of termination is given at end of the year the contract shall continue.
“Tenth section: The company .acknowledges receipt from the customer of two and 60/ioo dollars’as a deposit to secure the faithful performance of this contract by the customer and the payment of any other claim against the customer now owned or hereafter acquired by the company, and upon the expiration of this contract the company agrees to repay, without interest, such part of said sum as shall remain after the company has deducted all sums due to the company from the customer under this contract or under any other such claim.
“Eleventh section: Provides that same may be terminated if it be assigned by customer.”

During the month of May appellee, on account of his wife’s sickness, left town for awhile, and during their absence they left in their house two young ladies rooming there, and during their absence appellant entered appellee’s residence, took out the meter, and discontinued the service for one night. Next morning one of the young ladies paid the bill due and the lights were reinstated. Notice was sent to appellee through the mail, as was customary, of the bill due for May, but he did not receive it until his return. The statement mailed appellee showed $1.60 due, but the current was not discontinued until after ten days had expired, and the meter at that time showed $2.94 due by appellee, which exceeded the amount appellee had on deposit with appellant. Appellee, previous to that time, had paid all his bills. The damage testified to by him was:

“When I found out that the meter had been taken out during my absence, and the young ladies left in the darkness, it made me sore; I didn’t appreciate it, I didn’t think it was just under the condition of things, to take advantage of the situation like it was and take the meter out and having enough on deposit to cover it too.”

The meters were read about the 20th of the month, and all bills were rendered about the 1st of the succeeding month, and 10 per cent, discount allowed if paid within 10 days thereafter. Appellee’s meter was taken out on the 23d day of May.

Appellant complains, by its second assignment of error, that—

“because the court erred in failing and refusing to give the defendant’s special charge No. 1 asking for peremptory instruction herein, because under the undisputed testimony and under the contract offered in evidence defendant was authorized to discontinue the plaintiffs service without liability, and because there was no pleading or proof of exemplary damages, and no pleading or proof of actual damages, all of which is more fully set out by defendant’s bill of exceptions No. 1;”

and submits the following proposition thereunder:

“It having been established by the undisputed evidence that the light service rendered appellee was under a written contract, and it appearing that said contract provided that failure to pay any monthly installment authorized the appellant to discontinue the service, and the undisputed evidence showing that appellee was delinquent in at least one monthly installment, the appellant was authorized to discontinue service without liability.”

We are of opinion, that the evidence fails to show that mental suffering of appel-lee from the act of appellant in discontinuing his electric light entitled him to recover damages. There was no damage done to appel-lee’s property, no personal injury done to him or to any one. He was not caused to pay a cent that he was not liable for, and he, not knowing of the occurrence, was made “sore” when he heard of it. Appellant did nothing but what it had a right to do under its contract, and as shown, even if the amount of $2.50 deposited by appellee had been sufficient to cover the amount of his bill due, it would not affect the status of the matter, as it was a mere security, and did not affect appellant in proceeding to collect its monthly bills. Appellant ascertained the appellee’s wish to continue the contract, and at once accepted the amount due for the previous month, and continued to furnish him with electric current. Appellee made no arrangement when he left Hillsboro for having his bill paid and electric lights continued during his absence, and there was no one to inform appellant of his intentions. The following authorities hold that mental suffering alone is not recoverable, when there is no personal injury inflicted or any damage done to property or loss sustained: Railway Co. v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866; Rowell v. Tel. Co., 75 Tex. 26, 12 S. W. 534; T. & P. v. Jones, 29 S. W. 500; Williams v. Yoe, 19 Tex. Civ. App. 281, 46 S. W. 659; Tel. & Tel. Co. v. Solomon, 54 Tex. Civ. App. 306, 117 S. W. 214; Railway Co. v. Jones, 38 Tex. Civ. App. 129, 85 S. W. 37.

The judgment is reversed, and here rendered for appellant.
      <§=For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REED v. HUNTER.
    (No. 322.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 14, 1918.)
    Trial <®=^329 — Verdict— Determining Issues.
    The issue drawn by the pleadings and evidence being, virtually, which party was right as regards the terms of the contract, _ and it being impossible for both to have verdict, one finding for defendant was a finding against plaintiff as effective as an express finding, the charge, though not really submitting the case on special issues, putting the issue in a double form.
    Appeal from Falls County Court; F. S. Heffner, Judge.
    Action by R. A. Reed against C. T. Hunter. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Spivey, Bartlett & Carter, of Marlin, for appellant. E. W. Bounds, of Marlin, for ap-pellee.
   KING, J.

This appeal is perfected from a judgment in favor of appellee in the county court of Falls county, Tex. For cause of action in the trial court appellant alleged that in 1915 he and appellee contracted and agreed that he should purchase a certain number of hogs, and that appellee should care for and fatten said hogs for market, and that on the 1st of December, 1915, appellant should sell said hogs on the open market, and that he should reimburse himself out of the proceeds of the sale for the purchase price, with interest, to the time of sale, and that appellant should pay to appellee one-half of the net profits from the sale of the hogs, and that in compliance with said contract he purchased and became the owner of 43 hogs, which hogs were situated, at the time of filing suit, on appel-lee’s farm, and the market value of the hogs at that time- was $6 each, and the increase, being 12 pigs, of the market value of $1 each. Appellant further alleged that the appellee, who was then in possession, refused to carry out the contract, and refused to permit the plaintiff to sell the hogs. Appellant further alleged that in the event it should be held that he did not have the title to said hogs and pigs., and that by reason of the contract he had a lien on said hogs and pigs, to secure the repayment to him of the purchase money, he says that he furnished $288.15 in the purchase of the hogs, and that the repayment of said sum was due, and that appellee refused to permit him to take possession of the hogs and the pigs and subject the same to the payment of his personal money demand. He prayed that he have judgment for title and possession of 43 head of hogs and 12 pigs, and, in the alternative, that he have judgment foreclosing his lien on said hogs and pigs for the purpose of satisfying the purchase money of said hogs in said sum of $286.-15, with interest.

Appellee answered by general exception and general denial, and specially pleaded, by way of reconvention, that on October 1, 1915, he and appellant entered into an agreement by which appellant agreed to furnish 83 head of cattle and 100 head of hogs, and that he had agreed to furnish such feed and pasture for same as his fields then contained, and to keep, pasture, water, and care for said cattle and hogs for a period of about 30 days, when said cattle and hogs were to be sold, and ap-pellee allowed one-half of all gains in the weight of said cattle, at seven cents per pound for the steers and five cents per pound for cows; that said cattle were to be weighed when they went into the field, and weighed when they came out, and the net gains were to be divided equally between them and appellant; that the hogs were to be sold on the open local market, and the net gains on said hogs and their increase, after deducting the amount paid for said hogs, were to be divided equally between him and appellant; that appellant placed said 83 head of cattle, 47 head of which were steers, 36 head cows and bulls rated as cows, in said pasture, and also placed 43 head of hogs therein; that he carried out his part of the agreement, gave special care- and attention to the cattle and hogs, and allowed them to graze and feed upon the pasture, which consisted of several hundred acres of fine Johnson grass, green peas, ungathered ear corn on the stalk, and other grasses; that the cattle remained in said fields until the 16th day of November, 1915, and gained in weight at least 200 pounds per head, and that the hogs remained in said pasture until about December 2, 1915, and gained in weight and value to the extent of not less than 150 pounds, or 50 pounds per head, at 7 cents per pound reasonable market value thereof; that the appellant violated his part of said agreement, and failed to purchase and place in said field tlie 100 head of hogs as he had agreed to do, and thereby deprived appellee of the profits on the additional 57 head, which would have been equally as great as that on the .43 head which he did place in the pasture; that the additional 57 head of hogs could and would have been cared for with the amount .of feed in said field, without additional trouble or cost to appellee, and would have netted an additional $75. He alleges that appellant further breached his contract with him in that on about the 16th of November, 10-15, appellant broke and entered appellee’s field and pasture, and took said 83 head of cattle therefrom, and failed to weigh the same, and converted appellee’s part thereof to appellant’s own use, and had failed and refused to account to appellee for his share in the increased weight of the cattle; that appellant further breached his contract with appellee in that, by a false affidavit made by appellant, he sued out a writ of sequestration, and caused the same to ibe levied on the 43 head of hogs, and caused tire same to be taken out of the pasture and field and off of said feed, and refused to pay appellee his part of the increase in the- value of said hogs or tire value of the pasture, feed, care, and attention, but sold same and converted the proceeds to his own use and benefit; that had said cattle been weighed when taken, out of the pasture, in accordance with their agreement, they would have shown a net gain of 150 pounds per head, and that his part thereof would have amounted to the sum of $250; that had said hogs been sold, and the highest market price obtained, at the increased net gains in weight and value, they would have brought $150, and that he was entitled to one-lralf of this sum; that had the additional 57 hogs been placed in the pasture they would have made' equal gains, and defendant’s part of said gain would have amounted to the sum of $75; that he had been damaged in the sum of $400 by breach of the contract on the part of appellant, for which he prayed for judgment over and against the plaintiff.

In answer, by supplemental petition, to appellee’s original answer, appellant pleaded that he and appellee did make and enter into a contract, but that he did not agree to furnish 100 head of hogs, but only 43 head, which he did; that appellee was not to be allowed half the gain in weight of the said cattle at the rates per pound stated in said answer, but that it was understood and agreed that said cattle were to be weighed into the pasture at those prices, and that upon taking said cattle out of the pasture for sale appellant was first to reserve out of the proceeds money sufficient to reimburse himself for said cattle at said weights, and prices, and the net proceeds of the sale, in excess of such money as was required to reimburse appellant, was to be equally divided between him and appellee; that there was no agreement that the cattle.should be weighed out of the pasture; that it was contemplated and understood by the parties that they expected said cattle to fatten in said pasture and become fat for market, and that they would be put on the market and sold, and their selling weights would govern; that there was no agreement that said hogs would be sold on the open local market, but it was contemplated, agreed, and understood that said hogs were to fatten in said pasture, and would be sold on the market, and the net amount received for them, over and above the price at which they were put in said pasture, would be divided equally between him and appellee; that it was understood that appellant should do the marketing and selling of all of said stock; that, in pursuance to said agreement, he placed in said pasture 47 head of cattle, of the aggregate weight of 48,260 pounds', at the agreed price of 7 cents per pound, or $3,378.20, and 36 head of cattle, of the aggregate weight of 28,140 pounds, at the agreed price of 5 cents per pound, or $1,407, both aggregating in value, at the agreed price, $4,785.20, for which he was to be reimbursed before there could be any profit; that on November 18, 1915, after said cattle had been in said pasture for some time, it became apparent that they were not gaining in weight or making any profit for any one, and that, the time having elapsed which was in the contemplation of the parties that they should remain therein, the plaintiff took said cattle out of said pasture, without objection on the part of ap-pellee, and at once shipped 41 head to the Ft. Worth market, being the pick of the cattle, which weighed in the aggregate 48,420 pounds, and that he received therefor the net sum of $2,754.07, which was a reasonable price, and the best price he was able to obtain for them; that the balance of said cattle were not then in condition for market or sale, and were not fattening in said pasture, and that plaintiff was compelled to hold and care for them. Appellant then, by his pleadings, showed the manner of the disposition "of the rest of the cattle in detail, and alleged a loss of $588.90 on the sale of the cattle; that he sold the hogs at a net profit of $69.45, which, deducted from the amount lost on the cattle, left a total loss of $519.-45; that' during the negotiations leading up to the contract, and which entered into same, appellee represented to him that said pasture was ample to care for, and fatten said 83 head of cattle and 43 head of hogs, and that he relied upon said representation, and that said cattle and hogs were put into said pasture on account of such representation, and for the purpose of being fattened for- the market; that as a matter of fact said pasture was not ample or sufficient to fatten said cattle and hogs, but that, if it was, ap-pellee, within a short time after the stock was placed therein, and without his knowledge and consent, gathered and. .caused to be gathered and carried from said pasture a large amount of peas, and cut and caused to he cut and hauled away a large amount of Johnson grass and other grasses from said pasture, and failed and refused to give said cattle and hogs free access to said pasture, but curtailed its use by grazing stock belonging to appellee on portions thereof ahead of plaintiff’s cattle and hogs, and thereby materially reduced the opportunity for plaintiff’s cattle and hogs to fatten, and did cause them not to fatten, by reason of which plaintiff sustained the loss of said $519.45.

A trial was had by jury, who rendered the following verdict:

“We, the jury, find for defendant for cattle the sum of $247.00 as paragraph two and three. We also find for the defendant the sum of $75.00 for hogs as per paragraph four and five.”

Upon this verdict it was decreed by the court that appellant take nothing by his claim for damages against appellee, and that ap-pellee recover over and against appellant on appellee’s cross-action, the sum of $322 damages.

The court, after charging the jury with reference to the respective contentions of the parties, gave them the following charge:

“If you believe from a preponderance of the evidence that it was agreed and contemplated by and between the plaintiff and defendant that the cattle placed ■ in the pasture were to be weighed out from the pasture at the end of the feeding period, and that said cattle made a gain in weight, and that the steers placed therein were to be settled for on such gain in weight on the basis of 7 cents per pound of gain over their weight when put in the pasture, and that cows and bulls were to be settled for on such gain in weight on the basis of 5 cents per pound of gain over their weight when put in the pasture, then you will find for the defendant on his cross-action for such gain in weight, if any, on the basis of 3½ cents per pound for gain in weight of steers, and 2½ cents per pound for gain in weight of cows and bulls. The burden of proof upon this issue is upon the defendant.
“(3) On the other hand, if you fail to find from a preponderance of the evidence in favor of the defendant, Hunter, under paragraph next above, then you will return a verdict against the defendant on his cross-action as to the issue in this and the next above paragraph.
“(4) If you believe from a preponderance of the evidence that the plaintiff agreed to furnish 100 head of hogs for defendant’s pasture and failed to furnish 57 head thereof, and that as a consequence of such agreement and failure, if any, the defendant sustained a loss, then upon this issue you will find for the defendant such amount, if any, as you believe from the evidence he has sustained. The burden of proof upon this issue is upon the defendant.
“(5) On the other hand, if you fail to find from a preponderance of the evidence that plaintiff agreed to furnish 57 additional hogs to the ones placed in the pasture, or that, had he done so, the defendant would not have made any profit upon them, then you will return a verdict against the defendant upon this issue.
“(6) If you believe from a preponderance of the evidence that the defendant represented to plaintiff that his pasture was ample and sufficient to fatten said cattle, and that the plaintiff relied upon said representation, and that the same proved untrue or incorrect, or if you believe from a preponderance of the evidence that the defendant either gathered and carried away or caused to be lost, or permitted to be gathered and carried away, a material portion of the foodstuff constituting such pasture, or caused or permitted his own stock to graze thereon, and that such acts, if any, materially reduced the value of said pasture and caused plaintiff’s cattle or hogs not to gain in weight, then as to such loss as was thereby sustained, if any, you will return a verdict in favor of plaintiff.”

The first and only assignment of error is to the effect that no judgment can be rendered in this ease, in that the jury failed to follow the instructions of the court, and pass upon and return a verdict upon the issue submitted to them in the sixth paragraph of the charge.

We hold that the verdict returned by the. jury, in response to the issues submitted to them by the court in paragraphs 2, 3, 4, and 5 of the court’s charge, is so at variance with appellant’s claim for damages, under his contention as to the terms of the contract, that a finding for appellee under said issues is, in effect, a finding against appellant on such claim as effectually as if they had, in fact, found expressly against appellant, under paragraph 6 of the charge. The contract between the parties cannot bear the construction given it by both parties, and it would be impossible for the jury to have returned a verdict in favor of both parties. The issues drawn by the pleadings and the evidence introduced by the respective sides resolved the issues into this: Was the appellant right or was the appellee right?

It is true that the court in his charge made an effort to divide the issue into two parts by submitting it to the jury, like the old story of the white man and the Indian trying to divide their game, when the white man said to the Indian: “I will take the turkey and you take the buzzard, or you take the buzzard and I will take the turkey.” No complaint is made as to the charge. The charge of the court, in effect, told the jury that if they found from the evidence that the contract was in the manner pleaded by appellee that they would find for appellee, but that if it was not as pleaded by appellee they would find for appellant. The case was not really submitted on special issues, notwithstanding the paragraphing of the court’s charge. We recognize the rule that the verdict of the jury should determine all the matters in issue submitted to them by the court, but are of opinion that this verdict does so. Dewitt v. Berger Mfg. Co., 81 S. W. 335; Liljeblad v. Sasse & Powell, 49 Tex. Civ. App. 512, 108 S. W. 787; Galveston Tribune v. Guisti, 134 S. W. 243; Pritchard Rice Milling Co. v. Jones, 140 S. W. 817; Lewis v. Smith, 43 S. W. 294; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052.

The judgment is therefore affirmed.
      ®=»For other easoi see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes