text:
    PECOS & N. T. RY. CO. v. MALONE et al.
    (No. 1062.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1916.
    Rehearing Denied Jan. 10, 1917.)
    1. Eminent Domain &wkey;>172 — Proceedings to Take Property — Jurisdiction.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6531_, providing that, when any railroad company is sued for property occupied by it for railroad purposes or for damages thereto, the court in which the suit is pending may.determine all matters in dispute, including the condemnation of the property on cross-bill, chapter 21A, providing for the incorporation of gas, electric current, and power companies, granting to such companies by article 1283c the power to own and hold lands and structures necessary for their corporate purposes, and providing by article 1283d for condemnation in the manner provided by law in the case of railroads, a district court has jurisdiction, in an action by a railroad in trespass to try title, to adjudge the condemnation of the property in question in favor of the defendant electric light and ice company.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 470-472; Dec. Dig. <&wkey; 172.]
    2. Eminent Domain <&wkey;198(l) — Proceedings to Take Property — Determination of Necessity.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1121, § 73, permitting creation of water and ice, and electric light and power companies, an electric light and ice company had the power to determine whether the appropriation of land of a railroad company was necessary, and its decision was not subject to review by the courts, in the absence of abuse, and where it is not shown that the use of the right of way by the railroad will be seriously impaired.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 525, 528; Dec. Dig. <&wkey;> 198(1).]
    Appeal from District Court, Hale Comity; R. C. Joiner, Judge.
    Action by the Pecos & Northern Texas Railway Company against C. A. Malone, and another. From the judgment, plaintiff appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, and L. R. Pearson, of Plainview, for appellant. Randolph & Randolph, of Plainview, and L. C. Penry, of Ft. 'Worth, for appellees.
   HALL, J.

May 6, 1912, appellant railway company sued, in trespass to try title, C. A. Malone and the Malone Light & Ice Company, to recover a designated portion of its right of way and station grounds in the town of Plainview. Defendants disclaimed as to all except a small portion of the land, upon which the east end of its icehouse is situat> ed. Appellant amended its original petition, seeking to recover only that portion of its right of way as claimed by the defendants. February 10, 1916, the Texas Utilities Company, a private corporation, intervened, alleging, in substance, that it was duly incorporated under the laws of the state of Texas, for the purpose of generating and supplying electric lights and motor power to the public, and operating waterworks for the supply of water to the public, and for the maintenance and supply of ice to the public; that since the institution of the suit it had acquired all the physical properties, franchises, and. easements of the Malone Light & Ice Company, assuming all the duties and obligations resting upon the Malone Light & Ice Company, for furnishing water, light, etc., to the-city of Plainview; that at the time of the filing of the suit the original defendants were in possession of the land sued for and other lands, and of the building containing its electric light and ice plant, which had been erected and was being used for the benefit of the public; that it has such building on said property, together with some poles and other improvements thereon, so placed for the use of intervener’s customers in the transaction of its business for the public; that the public have a right at all times to use the electric current for lighting and motor power when so furnished by intervener, upon the payment of reasonable and satisfactory charges therefor, and that the inter-vener, as such purchaser, from said Malone Light & Ice Company, is operating under proper franchises from the city of Plain-view, and is, as such, a public service corporation, legally authorized to condemn all property necessary for the transaction of its business for the public, and on such account petitioner prays for condemnation of the property sought to be recovered by plaintiff, together with an additional strip.

On the same day plaintiff filed its supplemental petition, replying to the intervener’s plea of intervention, by general and special-demurrers, general denial and special pleas raising specifically all the questions presented in the brief.

On February 11, 1916, the original defend ants filed an answer, consisting of exceptions,, general denial, and special pleas, and, in addition alleging that the Malone Light & Ice Company had acquired by purchase certain-parts of block 5, in the Wye addition to Plainview, which block lies immediately west of the ground in controversy; that it had placed its icehouse and other valuable improvements upon said property through mistake, thinking it was building upon its own land.

Upon a trial before the court, without a jury, judgment was entered that appellant railway company recover the tract of land described in its petition, and further ordering that the property described in the inter-vener’s plea of intervention be condemned to the use and occupancy of intervener for the purpose of erecting and constructing poles and wires, and maintaining its house thereon. It was further ordered that $50 damages be allowed the plaintiff as the value of the property so condemned. It is shown that. appellant was the owner of the land sued for and sought to be condemned; that the value of the strip involved is $50; that the Texas Utilities Company acquired by purchase since the institution of the suit all of the physical property and franchises of the Malone Light & Ice Company; that the franchises so acquired granted the right to construct and operate and maintain, over, along, and across all streets, alleys, and public highways of the city of Plainview, in accordance with all reasonable ordinances of the city then in force and thereafter to be passed by the city council, an electric light and power plant; that the original company had acquired a site for its plant, wells, pumping station, ice factory, a "block of land in the Wye addition, lying immediately west of the land sued for; that C. A. Malone, as manager of the Malone Light & Ice Company, by mistake as to the true location of the dividing line between the two properties, constructed the icehouse of his company so that it extends about 6.4 feet at its south end and about 8 feet at its north end, over on the appellant’s right of way and station grounds; that such building is of such construction that it cannot be moved without practically destroying it; that a strip 9 feet wide off of the west end of plaintiff’s land would take all of the ground on which the house is located, and where two poles stand, and where it is desired to place two other poles; that intervener is seeking to condemn such strip for placing more poles and wires, and for the purpose of egress and ingress; that the principal business and residence part of Plainview are on the opposite side of the railway company’s right of way from defendant’s plant, so that the most direct line for poles and wires from the plant as situated would be south along the strip of land, and the dividing line between plaintiff’s and defendant’s properties.

The first assignment of error ¿ssails the jurisdiction of the district court to determine appellee’s right to condemn the property, insisting that it is a question wholly cognizable in the county court. Art. 6531, Vernon’s Sayles’ Civil Statutes, provides that when any railroad company is sued for any property occupied by it for railroad purposes, or for damages thereto, the court in which such suit is pending may determine all matters in dispute, including the condemnation of the property, upon cross-bill asking such remedy by. defendant. Chapter 21A, Vernon’s Sayles’ Civil Statutes, providing for the incorporation of gas, electric current, and power companies in this state, grants to such companies, by article 1283c, the power to construct, maintain, and operate such plants, and to own, hold, and use such lands, rights of way, easements, buildings, and structures as may be necessary for its corporate purposes. It is provided by article 1283d of the same chapter that such a corporation may enter upon, condemn, and appropriate the lands, rights of way, easements, and property of any person or corporation, and that the manner and method of such condemnation shall be the same as is provided by law, in the case of railroads. It is clear from the articles of the statute mentioned that the district court had jurisdiction to condemn the property upon appellee’s cross-bill.

Vernon’s Sayles’ Civil Statutes, art. 1121, § 73, permits the creation of private corporations in this state so as to include two or more of the following purposes, viz.: The supply of water and ice to the public, and the generation of and supply of electric lights and motor power to the public. Appellant insists that no necessity for taking its land is shown, and that the only reason assigned by the appellee for such taking is that it made a mistake in locating the boundary of its lot, and erected a part of its building on land owned by appellant. The Legislature has empowered any person or corporation to condemn land of another for the purposes mentioned above, and has, by its enactment, relieved the appellee of the burden of showing any necessity, and deprived the courts of their right to inquire into it. Croley v. St. Louis Southwestern Railway Co., 56 S. W. 615; Henderson v. Lexington, 22 L. R. A. (N. S.) 64, note. 10 R. C. L. “Eminent Domain,” §§ 158, 159, in discussing the subject of necessity for the taking, uses this language:

“The Legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement, or public use, and it may select the exact location of the improvement. In such a case it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, and the consequent necessity of taking the land selected for its site, are all questions exclusively for the Legislature to determine, and the courts have no power to interfere or substitute their own views for those of the representatives of the people. Similarly, when the Legislature delegated the power of eminent domain to municipal or public service corporations, or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the courts will not inquire into the necessity or propriety of the taking. The Legislature, or the party to whom the power is delegated, has the same discretion in determining what estate or interest in the required property shall be condemned, and while ordinarily only an easement is taken, if it is deemed advisable to acquire a fee, the owner cannot have the decision reversed by a court, except in a plain case of abuse. * * * The mere fact that the statute gives the corporation making the taking Sower to take land ‘necessary’ for its purposes oes not, however, give the court any greater power to review the question of necessity than when the grant of power is not_so limited, since the grantee of the power is the primary judge of the necessity, and the right of the court to review its decision in case of bad faith or abuse is the same in either ease.”

It does not appear that the condemnation of a strip of land 9 feet wide and the length of appellee’s building will destroy the right of way or its use to the railway company, nor, Indeed, that it will seriously impair that right.

We will not undertake to discuss the many assignments in detail; analyzed, they present, in different forms, the questions decided. The assignments are therefore all overruled, and the judgment is affirmed.
      <§rxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLV, C. J.

license: Public Domain

text:
    NELSON et al. v. BUTLER.
    (No. 5746.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1916.
    Rehearing Denied Jan. 10, 1917.)
    1. Damages <&wkey;81 — Liquidated Damages — Contract oe Sale.
    There is a valid stipulation for liquidated damages, the sum fixed not being exorbitant or out of proportion to what may have been the actual damages, a contract for sale of land providing that if the purchasers refused the deed the money deposited as earnest money should be forfeited as liquidated damages, but if a good and merchantable title could not be shown the money should be returned to the buyers.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. § 177; Dec. Dig. <S&wkey;81.]
    2. Vendor and Purchaser <&wkey;130(6) — Good Marketable Title — Error in Deed.
    Relative to a vendor having good marketable title, errors in description of land in deed from R. to P. are cured by reference therein to deed of H. to R. “for a full description of the land herein conveyed,” the record book in which H.’s deed is recorded being given, and the records containing a proper description, so that the premises can be readily identified.
    [Ed. Note. — Por other cases, see Vendor and Purchaser. Cent. Dig. § 246; Dec. Dig. <&wkey; 130(6).] '
    3. Vendor and Purchaser <&wkey;130(2) — “Good Marketable Title.”
    A good marketable title is one that is free from reasonable doubt, and not necessarily one free from every possible suspicion.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. § 246; Dec. Dig. <&wkey;> 130(2).
    Por other definitions, see Words and Phrases, Pirst and Second Series, Good Title; Marketable Title.)
    4. Vendor and Purchaser &wkey;»130(2) — Marketable Title — Error in Judgment.
    That judgment setting apart land describes it as having been rendered in one county, when it was rendered in another, does not prevent the title from being a good marketable one.
    [Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. § 246; Dec. Dig. <&wkey;> 130(2).]
    5. Appeal and Error &wkey;>1050(l) — Harmless Error — Admission op Evidence.
    Any error in admitting certificate of person who prepared an abstract of title, that the records of the county where the land was situated showed a person’s name only once as grantee and once as grantor, was harmless; the description being sufficient without the certificate.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. &wkey;1050(l).]
    6. Damages <&wkey;85 — Specific Performance &wkey;>58 — Liquidated Damages — Effect of Stipulation.
    A contract for sale of land having fixed a certain amount as liquidated damages for refusal of vendees to accept deed, the vendor cannot have specific performance or greater damages.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 179-181, 183-187; Dec. Dig. &wkey; 85; Specific Performance, Cent. Dig. §s 179, 180; Dec. Dig. <&wkey;>58.)
    Appeal from District Court, Karnes County; F. G. Chambliss, Judge.
    Action by S. C. Butler against John A. Nelson and others. Judgment for plaintiff, and defendants appeal, plaintiff making cross-assignments.
    Affirmed.
    Williamson & Klingemann, of Karnes City, and Sansom & Metcalfe, of Georgetown, for appellants. Jno. W. Thames, of Kenedy, and L. H. Browne, of San Antonio, for appellee.
   FLV, C. J.

This is a suit instituted by ap-pellee against J. A. Nelson, C. J. Anderson, and Emil Gustafson, appellants, for specific performance or to recover $6,072, alleged to be due as damages arising from the breach of a contract of purchase of certain land. The cause was tried by the court, without a jury, and judgment rendered in favor of ap-pellee for $1,000. All parties appealed.

It appears from the evidence that a contract was entered into between appellants and appellee on July 6, 1914, whereby the latter was to sell to appellants a certain 1,-200-acre tract of land out of the William T. Hatton league in Bee county. An abstract of title was to be furnished by appellee “showing a good and merchantable title to said land” in himself. He furnished such abstract, but appellants refused to comply with their contract. It was provided in the contract that if the appellants failed or refused the deed tendered them by appellee on January 2, 1915, “then in that event said sum of $1,000 deposited as earnest money shall be forfeited to the party of the first part as liquidated damages, and this contract shall become null and void.”

The language of the contract as to the damages in case of a breach by appellants is clear and unmistakable and evinces a desire of the parties to settle the amount of damages. Not only was it provided that appellants should lose the $1,000 in case of a breach, but it was also provided that in case “a good and merchantable title” could not be shown by appellee the earnest money should be returned to appellants. Durst v. Swift, 11 Tex. 273; Collier v. Betterton, 87 Tex. 440, 29 S. W. 467; Halff v. O’Connor, 14 Tex. Civ. App. 191, 37 S. W. 238; Railway v. Schutz, 37 Tex. Civ. App. 14, 83 S. W. 39. The sum fixed in the contract is not exorbitant nor out of proportion to what may have been the actual loss.

The errors in the description of the land in the deed from Raley to Parker were cured by the reference in the deed to the deed of Hatton to Raley “for a full description of the land herein conveyed.” The record book in which the deed is recorded was given. The records contained a proper description of the land. The premises could he readily identified. Berry v. Wright, 14 Tex. 273; Early v. Sterrett, 18 Tex. 116; Kingston v. Pickins, 46 Tex. 101; Ragsdale v. Robinson, 48 Tex. 398; Wilson v. Smith, 50 Tex. 370; Steinbeck v. Stone, 53 Tex. 385; Arambula v. Sullivan, 80 Tex. 615, 16 S. W. 436; Devlin, Real Estate, §§ 1016-1018.

In a case in which a party refused to accept a deed from another on the ground of the land being misdescribed in a deed forming a link in the title the Court of Appeals of New York held that the title was marketable. The court said:

“The long-established rules with reference to the construction of descriptions, contained in •conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties, if that is discoverable from legitimate sources of information. * * * In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located.” Brookman v. Kurzman, 94 N. Y. 273.

A good marketable title is one that is free from reasonable doubt, and not necessarily one free from every possible suspicion. The description of the land in the deed to Parker by Raley leaves no doubt as to its identity with the land conveyed by Hatton to Raley; the only error being that the judgment which set apart the 383 acres of land is described as having been rendered in ■Orange county when it was rendered in Travis county.

If it was error to admit the certificate of the person who prepared the abstract of title, that the records of Bee county, where the land is situated, showed the name of C. W. Raley only one time as a grantee and one •time as a grantor, it was immaterial error because the description was sufficient without the certificate.

There is no merit in the cross-assignments of appellee. Appellee contracted to be satisfied with $1,000 if appellants breached the contract, and is in no position to claim other relief. He cannot lawfully demand specific performance or greater damages than were given him, because he had contracted that $1,000 was the extent of appellants’ liability if they breached the contract.

The judgment is affirmed.
      dSnaPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    CLEGG v. BRANNAN et al.
    (No. 5602.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 22, 1916.
    Rehearing Denied Dec. 23, 1916.)
    1. Specific Performance <&wkey;32(3) — Contract to Convex — Mutuality of Remeidy.
    A contract whereby defendant bargained and sold to plaintiff a certain ranch at a certain price, free and clear, for a recited consideration of $1, and the plaintiff’s conveyance of certain described properties to the defendant, not signed by the plaintiff, was a unilateral contract, lacking in mutuality; and, since it bound defendant alone to convey, and since he could not have enforced specific performance against plaintiff, plaintiff could not enforce specific performance against him.
    [Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 92-98; Dec. Dig. <&wkey;> 32(3).]
    2. Frauds, Statute of <&wkey;69 — Oral Contract-Sale of Land.
    Such contract, not having been signed by the plaintiff, was in contravention of the statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965), and was not binding upon him, without allegations showing him to be entitled to specific performance by reason of possession, part payment, etc.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 111; Dec. Dig. 4&wkey; 69.]
    3. Specific Performance <&wkey;8 —Remedy — Discretion of Court.
    The granting of specific performance is not a matter of absolute right, but is within the discretion of the court, and it may be granted or rejected according to the circumstances of each particular case.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 17, 18; Dec. Dig. <&wkey;> 8.]
    4. Specific Performance &wkey;s44 — Oral Contract to Convey — Possessions.
    Specific performance of an oral contract to convey land will not be enforced, in the absence of possession or permanent improvements made thereon, though the purchase money has been paid, as the payment of the purchase money, unaccompanied by possession, will not support an oral sale of land.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 126; Dec. Dig. <&wkey;>44.]
    5. Specific Performance <&wkey;43 — Oral Contract-Part Performance.
    That a party to an oral contract to convey land has conveyed to. the other party will not, standing alone, be accepted as a part performance, since such act is merely equivalent to a payment by him, not entitling him to specific performance.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 125, 130, 131, 134-139; Dec. Dig. <&wkey;>43.]
    6. Frauds, Statute of <&wkey;110(l), 158(3) — Contract for Sale of Land — Memorandum —Discretion.
    A memorandum of agreement for the exchange of lands, which did not describe a tract of land or give field notes from which it could be identified, parol evidence being inadmissible to aid such description, was insufficient within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of. Cent. Dig. 8§. 226-231, 375; Dec. Dig. &wkey;110(l), 158(3).]
    Appeal from District Court, Schleicher County; J. W. Timmins, Judge.
    Suit by T. J. Clegg against J. H. Brannan and others. Demurrer to petition sustained, and ’ judgment for defendants, and plaintiff appeals.
    Affirmed.
    D. T. Bomar, of Ft. Worth, and Wright & Harris, of San Angelo, for appellant. W. B. Silliman, of Eldorado, and Cornell & Wardlaw, of Sonora, for appellees.
   RICE, J.

On the 15th day of May, 1914, appellee Brannan executed and delivered to appellant Clegg the following instrument of writing:

“The State of Texas, County of Tom Green.
“Know all men by these presents: That I, J. H. Brannan of Schleicher county, Texas, have this day bargained and sold to T. J. Clegg of Tom Green county, Texas, about 7,391 acres of land lying and being situated in Schleicher county, Texas, .and known as the Fury ranch, and including other lands owned by me for the consideration of $8 per acre, free and clear of any and all incumbrances whatsoever, on the following terms and conditions, to wit:_ $1.00 cash in hand paid, the receipt of which is hereby acknowledged, and a good title and conveyance in law to the following described property and real estate, situated in and near Carlsbad, Tom Green county, Texas: Being all of blocks Nos. 281, 282 and 283, in Mason Perry Co.’s subdivision No. 1 of the Collyns ranch, a total of 329.67 acres at $75 per acre, a total of $24,725.25; the waterworks system in Carlsbad, Texas, at a price of $12,106.90; the waterworks system to constitute .the standpipe, well, engine, mains, tools, and franchise for both water and electric lights in Carlsbad, Texas, and a perpetual right for pipe line running through block No. 288, in Mason Perry Co.’s subdivision No. 1 of the Collyns ranch to the North Concho river, and with the perpetual right to use water at the junction of pipe with the said river for supplying the town of Carlsbad, Texas, with water, it being understood, however, that the pipe is to be sunk to a depth in the ground that it will not interfere with plows or other work, and that no conveyance to the land shall pass on account of such perpetual right as expressed; also there goes with the waterworks system the whole block of lots on which the standpipe is located; also one-fourth acre of land surrounding the well, with right of ingress and egress, the gin now located in the northeast corner of block No. 288, in Mason Perry Co.’s subdivision No. 1 of the Collyns ranch at $5,590.61, together with the two acres of ground out of the northeast corner of said land; the Plaza block in the town of Carlsbad, Texas, on which is located the bathhouse, pavilion, the Bethseda mineral well; lots Nos. 15, 16, 17, and 18 in block No. 29, of the town of Carlsbad, Texas, on which is located the Ben Hur mineral well; also what is known as the Bethlehem mineral well, with two lots therewith (it being understood that if either of the lots have "the old sehoolhouse located thereon, T. J. Clegg shall have the right to remove said house) the bathhouse at a price of $7,081.17, the pavilion and mineral wells at a price of $2,927.08.
“On account of repairs necessary to be done the waterworks system T. J. Clegg is to deed to the said J. H. Brannan five (5) vacant lots in the town of Carlsbad, Texas. On account of repairs necessary to be done the gin, T. J. Clegg is to deed to the said J. H. Brannan five (5) vacant lots in the town of Carlsbad, Texas; on account of differences in valuation, T. J. Clegg is to deed to the said J. H. Brannan seven (7) vacant lots in the town of Carlsbad, Texas, all of said lots are to be selected by the said Brannan and are those now owned by the said T. J. Clegg.
“It is understood T. J. Clegg assumes in this transaction the sum of $11,000.00 due by the said J. H. Brannan to H. P. Drought & Co. and also assumes $4,486.00 due the state of Texas, with the understanding that the said J. H. Brannan assumes and obligates himself in an indebtedness against the property to be conveyed to him by the said T. J. Clegg of $9,400.00 the same to be secured by a vendor’s lien, or mortgage or both, and reserved in the conveyances. The idea being the valuations should even up as stated.
“Interest on all amounts assumed by both J. H. Brannan and T. J. Clegg to be calculated to date of conveyances. It is hereby agreed and understood by and between both the said J. H. Brannan and T. J. Clegg that good abstracts, showing good titles in law, will be prepared and delivered to each other within thirty days from the date hereof, or sooner, if possible.
“In testimony whereof, witness the signature of the maker hereof, this the 15th day of May, A. D. 1914. [Signed] J. H. Brannan.”

Which was duly acknowledged.

This suit was brought by appellant, Clegg, against appellee Brannan, to enforce specific performance of the above instrument, and against appellees O. C. Roberts and the First National Bank of Eldorado, Tex., whom it was alleged were claiming some interest in the land sold by appellee to appellant, arising subsequent to the making of the instrument above set out. Appellant further alleged, as appears from his brief, that with the execution and delivery of said writing he paid to appellee $1 in cash; that he agreed to pay, and did pay, in the assumption of an indebtedness due from appellee to H. P. Drought & Co., $11,000; that he agreed to pay, and did pay, by the assumption of an Indebtedness due from appellee to the state of Texas on some of the lands, $4,486; that he agreed to pay, and did pay, by the conveyance to appellee of blocks 281, 282, and 283 in Mason Perry Company’s subdivision No. 1 of Collyns ranch, in Tom Green county, Tex., containing 329.67 acres, the sum of $24,725.25; that he agreed to pay, and did pay to appellee, by the conveyance of the waterworks system in Carlsbad, Tex., which included the standpipe, well, engine, mains, tools, franchises for both water and electric light and perpetual right for pipe line through block 288 in Mason Perry Company’s subdivision No. 1 to the North Concho river, together with perpetual right to use water out of said river, etc., the sum of $12,106.90; that he agreed to pay, and did pay, by the conveyance of a gin located on the northeast comer of block 288, together with two acres of ground, $5,590.61that he agreed to pay, and did pay, by the conveyance to him of the Plaza block in Carlsbad, Ilex., upon which is situated the bathhouse, pavilion, and the Bethseda mineral well, and lots Nos. 15, 16, 17, and 18 in block No. 29 of the town of Carlsbad, Tex., upon which is situated the Ben Hur mineral well, and lots 11 and 12 in block 54 in said town, on which is situated the Bethlehem mineral well, $10,108.25. And further alleged that by the delivery of said instrument of writing by appellee to him, it was intended that appellant should, and that he did, assume, in the acceptance of same, to do and perform ail of the things therein stipulated to be done and performed by the terms of said instrument, including the assumption of the incumbrances due H. P. Drought & Co. and the state of Texas; that he paid appellee Brannan the $1 therein recited; and that both appellant and appellee acted upon and treated said instrument of writing as binding both parties thereto to do all of the things therein provided to be done. /

Appellee addressed, and the court sustained, the following exception to appellant’s petition, to wit: Defendant specially excepts to so much of said paragraph 1 as purports to set. out the above instrument in writing, and says that the same is wholly insufficient, because upon its face it is, if anything, in law a contract for the exchange of lands, a contract by defendant Brannan to convey to plaintiff lands in exchange for lands to be conveyed by plaintiff to him; and said contract is unilateral and lacking in mutuality, and particularly lacking in mutuality with reference to remedies, since plaintiff did not sign or execute said contract, and since it is a contract required by the statute of frauds to be in writing, and was and is unenforceable as against plaintiff, Clegg.

Appellant declining to amend his petition, judgment was entered in favor of appellees, from which appellant has prosecuted this appeal, urging that the court erred in sustaining said demurrer. ■

It will be observed that appellant, Clegg, did not sign the contract sued upon. The same, in our opinion, was a unilateral contract, lacking in mutuality, since it bound ap-pellee alone to convey, and he could not, in our judgment, have enforced specific performance of it against appellant. It is true that it is alleged that appellant accepted the contract and executed the conveyances called for thereby. This transaction, however, was in effect only an agreement to exchange lánds, and, not having been signed by appellant, was in contravention of our statute of frauds (article 3965, Vernon’s Sayles’ Rev. Civ. Stats.), and was not binding upon him, in the absence of allegations showing that he was entitled to specific performance, such as having gone into possession, paying part of the purchase money, or making valuable improvements thereon, because the granting of specific performance is not a matter of absolute right, but is within the discretion of the court, and may be granted or rejected according to the circumstances of each particular case. See 36 Cyc. 54SD.

Specific performance of an oral contract to convey land will not be enforced, in the absence of possession or permanent improvements made thereon, though the purchase money has been paid. See McCarty v. May, 74 S. W. 804. The payment of purchase money, unaccompanied by possession, will not support a parol sale of land. Dixon v. McNeese, 152 S. W. 675. In Brown on the Statute of Frauds, § 76, it is said:

“It is undoubtedly the settled law of this country, as of England, that the conveyance of lands by a verbal exchange or bartering merely is invalid by virtue of that statute [meaning the statute of frauds].”

See, also, same author, section 271.

The fact that plaintiff has conveyed to defendant should not, standing alone, be accepted as part performance, since that act is merely equivalent to a payment by him. 36 Cyc. 688, 5, and authorities’ cited in note 37 thereunder. For other authorities bearing upon this question, see Wardell v. Williams, 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 814. See, also, Wright v. Berrow, 13 Tex. Civ. App. 146, 35 S. W. 190, where it is held, as shown by the syllabus that under a parol contract for the exchange of lands, the mere fact that one of the parties has deeded to the other the land to be conveyed by him is not such a part performance as entitles the former to specific performance of the contract.

In addition to the above it will be seen that the contract declared on is insufficient, in that it fails to describe the one-fourth acre of- land mentioned therein surrounding the well; as no field notes are given, it would be impossible to indentify same. It has been held that a memorandum relied on must contain a description of the land intended to be conveyed, and parol evidence is inadmissible to aid such description. See Brown on the Statute of Frauds, §§ 371, 385; Jones v. Carver, 59 Tex. 293.

Believing, for the reasons stated, that the court did not err in sustaining the demurrer, its judgment is affirmed.

Affirmed.
      other cases see same tocio and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    PIERCE-FORDYCE OIL ASS’N et al. v. STALEY.
    (No. 1063.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1916.
    On Motion for Rehearing, Jan. 3, 1917.)
    1. Process <&wkey;149—Return—Evidence.
    The return of service by a sheriff or a dis-interestéd person, authorized by law to make it, is prima facie evidence of the material facts recited therein.
    [Ed. Note.—For other cases, see Process, Cent. Dig. §§ 202-205; Dec. Dig. &wkey;149.]
    2. Judgment &wkey;>461(4)—Equitable Relief-Degree of Proof Required—“Clear and Satisfactory.”
    Equity should not set aside a default judgment for lack of service of process upon defendant, except on clear, satisfactory, and convincing proof of lack of such service; “clear and satisfactory” evidence meaning that the nature of the case demands a closer scrutiny of the weight of evidence than in an ordinary controversy.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 895; Dec. Dig. <@=^461 (4).
    For other definitions, see Words and Phrases, First and Second Series, Clear Evidence or Proof.]
    3. Judgment <&wkey;461(4)—Equitable Relief-Failure to Serve Defendant.
    In suit to set aside default judgment for want of service, evidence held not clear and convincing proof sufficient to impeach the constable’s official act.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 895; Dec. Dig. <&wkey;>461(4).]

      On Motion for Rehearing.
    4. Courts &wkey;>89 — Rules oe Decision.
    The weight of precedents establishing a certain rule of evidence is not lessened by the fact that such precedents have changed the ordinary rule as to evidence and applied a more strict rule without any legislative enactment.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Dec. Dig. &wkey;89.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action by 0. R. Staley against the Pierce-Fordyce Oil Association and others. From judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    J. Shirley Cook, J. E. Doran, and Harry Mason, all of Yernon, for appellants. Berry, Stokes & Morgan, of Vernon, for appellee.
   HENDRICKS, J.

On August 22, 1910, the appellant Pierce-Fordyce Oil Association obtained a judgment by default in one of the justice courts of Dallas county, Tex., against the appellee for the sum of $55.70, said judgment based upon a verified account. This judgment recited that the defendant Staley was duly cited, as required by law. The judgment does not seem to have been introduced in evidence, but is pleaded by the appellant Pierce-Fordyce Oil Association, and, as we interpret plaintiff Staley’s supplemental petition, the same was not denied, but admitted.

In March, 1915, the sheriff of Wilbarger county, J. D. Key, levied an execution upon said judgment on ceitain automobile casings, but before the sale of the seized property the plaintiff Staley sought and obtained a temporary injunction from the district judge of that district, restraining the sale of said property, on the ground that he was never served with citation in the justice court suit in Dallas county, and did not owe the debt evidenced by said judgment to the appellant. At the regular term upon) the merits, the jury, on the submission of special issues, found in favor of plaintiff on both questions upon which the district court perpetuated the injunction.

It is assigned that the testimony of Staley, contradicting the officer’s return of service, is not sufficiently corroborated by other testimony, and it is argued that the evidence is not of that clear and satisfactory nature established by the decisions of this state as that said officer’s return should be set aside.

The principal reliance by appellant is upon the case of Randall v. Collins, 58 Tex. 232, where it is said by Chief Justice Gould:

“ * * * If equity will allow one who has been guilty of no fault or negligence to contradict the sheriff’s return by parol evidence for the purpose of having an unjust judgment by default set aside, we are of opinion that it should require the evidence to be clear and satisfactory. It is not like an ordinary issue of fact to be determined by a mere preponderance of testimony.”

Chief Justice Gould, citing the ease of Driver v. Cobb, 1 Tenn. Ch. 490, further asserted that one witness alone would not suffice to successfully impeach the return of an officer upon a citation, but there should be two witnesses or one witness with strong corroborative circumstances. It was further said:

“ * * * Upon general principles, it would seem essential to the peace and quiet of society that these solemn official acts should not be set aside with the'same ease as an ordinary act in pais.”

That part of the opinion, that evidence to set aside a judgment must clearly and satisfactorily contradict the sheriff’s return, seems to be the general rule, without any opposing authority that we are able to find, in other jurisdictions. Matchett v. Liebig, 20 S. D. 171, 105 N. W. 171; Smoot v. Judd, 184 Mo. 545, 83 S. W. 493; Jensen v. Crevier, 33 Minn. 373, 23 N. W. 542; Huntington v. Crouter, 33 Or. 414, 54 Pac. 209, 72 Am. St. Rep. 729; Connell v. Galligher, 36 Neb. 760, 55. N. W. 233; Abraham v. Miller, 52 Or. 14, 95 Pac, 816. All those cases cite, and some of them quote, from the Texas case of Randall v. Collins, supra. The rule seems to be subsequently recognized by the following Texas authorities: Gatlin v. Dibrell, 74 Tex. 38, 11 S. W. 909; Wood v. Galveston, 76 Tex. 130, 13 S. W. 228; Land Co. v. Graham, 24 Tex. Civ. App. 528, 60 S. W. 476; Kempner v. Jordan, 7 Tex. Civ. App. 278, 279, 26 S. W. 871.

It is noted that the Supreme Court said, relative to the impeachment of the return of citation:

“It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony.”

We admit, of course, that the obligation of the rule would not require uncontradicted proof, and, necessarily, it is hard to determine and enunciate just what quantum of proof would meet the rule so as to demonstrate an equitable application to a record except one of exclusion.

The ease of Matchett v. Liebig, supra, quoting from the case of Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139, states the rule in a form as follows:

“The return of service, either by a sheriff or by a disinterested person authorized by law to make it, is prima facie evidence of the material facts recited therein, and a court of equity should not set aside a judgment except upon clear, satisfactory, and convincing proof of lack of service of process by the person making it.”

This character of proof, bounded by 'the strict rule mentioned, is placed “upon grounds of public policy.”

That a fact must be shown by “clear and satisfactory” evidence means that the nature of the case demands a closer scrutiny of the weight of the evidence than in an ordinary controversy. Peterson v. Bauer’s . Estate, 76 Neb. 652, 107 N. W. 993, 111 N. W. 361, 362, 124 Am. St. Rep. 812. We of course assume that preponderance, which ordinarily means the greater weight of the testimony, would still apply; and it is also the case that the slightest difference in the weight of the evidence in ordinary cases is a preponderance. But this case starting with the strong presumption founded on public policy, of the verity of an officer’s return, illumin-tates the meaning of Chief Justice Gould that this was not like an “ordinary issue of fact determined by a mere preponderance.” The preponderating evidence should be of a “clear and satisfactory” nature, and we think this record is in such a condition that it becomes a legal question.

There is no allegation or element of fraud in this case with reference to the judgment, or the service of citation, unless you say it is interposed by the denial of service, and that Staley did not owe the debt.

We have repeatedly and carefully considered this record and think that such a verdict, and the judgment based thereupon, applying the rule, should not stand.

The appellee testified that he never purchased any of the character of supplies embodied in the affidavit upon which the judgment was predicated from the Pierce-Fordyce Oil Association, at any time nor for any purpose. Manis, the agent of appellant, at Vernon, Tex., though he did not have the records at hand, also positively testified that he sold to Staley $200 or $300 worth of supplies, and the account upon which the judgment was rendered was a balance which Staley failed to pay. He distinctly says that Staley made several payments on the running account at different times, the dates of which he could not remember, and that he presented the particular balance, and the appellee told him he could not pay, but would as soon as he got the money. This particular statement was not denied, unless it is considered to be inferentially contradicted by the testimony that Staley claimed to have never bought any goods from |the Pierce-Fordyce Oil Association. If you admit Staley’s testimony it means the fabrication of an account, with a verification thereto by the Pierce-Fordyce Oil Company or its agents, if you assume, as argued, that his denial of the debt is also relevant to the question of lack of service; and that an officer falsely and fraudulently made a return of service, of which there is no proof except the testimony of Staley, several years after the service, that he was not served. Homer Evans, the constable of Staley’s precinct in Wilbarger county, though he had no independent recollection of the fact of personal service upon the defendant Staley, positively testified that it was his official signature to the return on the citation, and that, as constable, he personally served all papers. It is clearly deduced from his testimony that from those facts he knew that he served the writ and made the return thereupon; otherwise his signature thereto would not have been in existence. Without citing the authorities on evidence this is clearly original and probative testimony of the fact recited in the instrument.

Staley’s testimony intended to convey the inference that prior to his purchase of the Buick Oar No. 36, he did not own an automobile. The record as to the registration of the numbers affording information as to who were owners of automobiles in Wilbarger county, Tex., clearly contradicted such an impression manifestly intended to be conveyed and manifestly untrue. While this is a collateral circumstance, it bears upon the rule, in affecting the credibility of the plaintiff.

We have given due consideration to this' man’s testimony as to his ownership of a certain building and the time of its vacancy and its occupancy by the Brown Buggy Company, and of another witness that he never knew of Staley having been in the garage business, and the fact that the appellant was not very diligent in enforcing the judgment, but regard the circumstances as relevant to the question of lack of service, of very little, if any, probative strength. The denial of Staley that he was not served imports the conclusion that an officer (without a single suspicious circumstance, except the denial) fraudulently and falsely, without any service whatever, made a return, but who, upon every other consideration, was presumably impartial and unprejudiced in the pursuit of his duty. Such a record, upon considerations of public policy, is not “clear and satisfactory” proof of impeachment of such an official act.

Without further analysis of this record, we are convinced that the verdict and judgment are erroneous, and, as the case was probably developed, we reverse and render the judgment, with the order that Staley’s petition for injunction be dismissed.

Reversed and rendered.

On Motion for Rehearing.

We cited the rule mentioned by Chief Justice Gould in Randall v. Collins, 58 Tex. 232, in regard to two witnesses, or one witness with corroboration, for the impeachment of a service of citation, hut did not base the opinion in this case upon that part of the Supreme Court’s opinion. A careful reading of the main opinion would make plain the real ruling in this case. In commenting on the two-witnesses rule, or one witness with corroborating circumstances, as to the proof necessary to overturn return of service of citation, appellant asserts that wherever the ordinary rule with reference to evidence has been changed and a more strict rule applied, it has been done so by legislative enactment. - This is a mistaken view. Without going into a history of the law upon this subject, one notable exception in this state: — and there have been others— is expressed by Justice Stay ton as follows:

“In a long line of decisions by this court it has been established that the testimony of a single witness, testifying to the declarations of a deceased person, alleged to be a trustee, holding the legal title for another, is not sufficient to establish title to land in an alleged cestui que trust, in opposition to a deed which upon its face purports to convey the legal title to such alleged trustee; and this is a wholesome rule, having its foundation in a sound public policy.” Grace, Adm’r, v. Hanks, 57 Tex. p. 15.

The motion is overruled.

       <5u»For other cases see same topic ana KEY-NUMBER in all-Key-Numbered Digests and Indexes

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


author: LEVY, J.

text:
    SANDERS v. ELBERTA FRUIT CO.
    (No. 1675.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1916.)
    1. Peincipal and Agent <&wkey;155(l) — Liability of Agent.
    Where the manager of a fruit company undertook to handle and sell a farmer’s tomatoes solely for the interest and benefit of the farmer, the legal relation between the manager and the farmer was that of principal and agent, and the manager individually, and not the fruit company, was liable to the farmer for prices realized from tihe sale of the tomatoes.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 574, 578; Dec. Dig. &wkey;155(l).]
    2. PRINCIPAL AND AGENT &wkey;>103(l) — LIABILITY of Agent — Contract.
    Where the manager of a fruit company purchased a farmer’s tomatoes for the fruit company, and agreed to pay a fixed price, the farmer could recover of the fruit company such price, unless the manager was not acting within his powers as agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278, 281, 358, 367; Dec. Dig. &wkey;103(l).]
    8. Principal and Agent <&wkey;24 — Action on Agent’s Contract Taking Case from Jury.
    In an action against a claimed principal on a contract made by its agent, the court may take the case from the jury only if there is not sufficient evidence tending to prove agency.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. &wkey;>24.]
    4. Principal and Agent <&wkey;124(3) — Authority of Agent — Purchase—Question for Jury.
    In a farmer’s action against a fruit company to recover an agreed price for tomatoes, which plaintiff claimed the fruit company had bought through its manager, whether the manager, as agent, was acting within the scope of his authority, so as to bind his principal by a purchase of plaintiff’s tomatoes, held for the jury.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. <&wkey;124(3).]
    5. Principal and Agent &wkey;>123(7) — Dealing with Agent — Failure to Make Inquiry-Effect.
    In an action by a farmer against a fruit company for the price of tomatoes, which plaintiff claimed defendant had purchased through its manager, the circumstance that plaintiff, in dealing with the manager, made no inquiry, and did not ask if he was acting for the fruit company, could not be regarded as conclusively showing a want of any contract to sell to me fruit company.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 426; Dec. Dig. <S&wkey;123(7).]
    6. Principal and Agent <&wkey; 124(3) — Dealing with Agent — Prudence — Question fob Jury.
    In a farmer’s action against a fruit company for the price of tomatoes claimed to have been purchased through its manager, whether plaintiff failed to use reasonable prudence in dealing with the manager, as agent of the fruit company, held for the jury under the evidence.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. <&wkey;124(3).]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by Joe A. Sanders against the El-berta Fruit Company. From a judgment for defendant,. plaintiff appeals.
    Judgment reversed, and cause remanded.
    N. W. Brooks, of Tyler, for appellant. J. A. Bulloch, of Tyler, for appellee.
   LEVY, J.

The appellant claims that the appellee, a private corporation, is indebted to him in the sum of $141.97 for a certain number of pounds of tomatoes sold and delivered to its authorized agent at Bullard, Tex., in June, 1915. And the appellee pleads a denial of the pu- chase of the tomatoes by it or by any one having authority from it to do so. The court, after all the evidence was in, peremptorily instructed the jury to return a verdict in favor of the defendant. And the question presented for review on appeal is that of error or not in giving the peremptory instruction.

As disclosed by the evidence, the Elberta Fruit Company is a private corporation for the purpose of general farming and growing and selling fruit and vegetables. The terms of the charter do not extend to buying fruit and vegetables of outside parties, and the company had never purchased fruit and vegetables grown by other persons. The appellee has its farm at Bullard, Tex. Fred J. Sackett is the manager, and has been for eight years, of the farm for the company, and is the only person authorized to transact its business. In the season of 1915 the appellee had grown a large crop of tomatoes to be sold in the Northern markets. Appellant, a farmer near Bullard, raised a tomato crop during the season of 1915, and, it appears, delivered to Mr. Sackett at Bullard, on June 11, 1915, 2,350 pounds of tomatoes and also 907 pounds of tomatoes, and on June 15, 1915, 2,-490 pounds of tomatoes. There is a clear difference, as disclosed by the evidence, between the testimony of appellant- and that of Mr. Sackett as to whether appellant was to be paid for the tomatoes the fixed market price of the day of delivery of 2y2 cents per pound for the 907 pounds, and 3 cents per pound for the remainder, or appellant was to receive such amount of money as was actually realized for the tomatoes when shipped to and sold in the Northern markets by Mr. Sackett. This disputed matter rests, though, it may be said, upon the determination of the ultimate fact of whether or not in handling the tomatoes of appellant Mr. Sackett was acting solely for the benefit and account of appellant as sales agent for him, or purchased the tomatoes at Bullard as agent and for and in behalf of the Elberta Fruit Company; for the evidence of appellant goes to show a sale and purchase of the tomatoes at Bullard for a fixed price by Mr. Sackett for and in behalf of the Elberta Fruit Company; and the evidence in behalf of appellee goes to show that, in undertaking to handle the tomatoes of appellant, Mr. Sackett was doing so solely as sales agent for the appellant, and without charge therefor, or as an accommodation to appellant. Thus, if it be true that the handling and selling of the tomatoes was undertaken by Mr. Sackett, as he contends, solely for the interest and benefit of appellant, then clearly the legal relation between appellant and Mr. Sackett is that of principal and agent, and Mr. Sackett individually, and not the El-berta Fruit Company, would be liable to appellant for such prices as was realized from the sale of the tomatoes in the shipment to the Northern markets. But if it be true that Mr. Sackett, as claimed by appellant, purchased the tomatoes at Bullard for and in behalf of the Elberta Fruit Company and agreed to pay a fixed price for them, then the appellant may recover of the Elberta Fruit Company such agreed price, unless it further appears that the appellant has no right or claim against the Elberta Fruit Company thereon because Mr. Sackett was not acting within his powers as agent so as to bind his principal. And upon the facts of the present record it may not be said, it is believed, as a matter of law, that Mr. Sackett did not have the requisite authority to bind his principal by the particular contract of purchase, if it he true that he was acting in behalf of the fruit company and not solely as sales agent for appellant. There is no dispute in the evidence that Mr. Sackett was in fact the manager for the El-berta Fruit Company, and there is ample evidence going to support a finding, if so made, that he was acting for the Elberta Fruit Company in the handling and disposing of the tomatoes. There is evidence to show that the draft for each car of tomatoes sold was drawn on the consignee for the account of the Elberta Fruit Company, and when the drafts were paid the money was deposited in the bank to the credit of the Elberta Fruit Company. Mr. Sackett paid the employes loading the cars, and the outside tomato growers, in checks on the bank, which checks were signed, “Elberta Fruit Co., by Fred J. Sackett, Manager.” As testified by Mr. Sackett:

“The Elberta Fruit Company had a large crop of tomatoes in the season of 1915, and so did the Douglas farm, of both of which I had the manag'ement. For convenience in handling and disposing of crops from these farms, and to enable me to load the tomatoes from these farms in carload lots, I agreed with the other tomato growers to handle their tomatoes with mine. * * * It was solely for the purpose of enabling me to ship the tomatoes of Elberta Fruit Company and those of the Douglas farm in carload lots that I undertook to handle the tomatoes of other growers. It was greatly to th© advantage of Elberta Fruit Company to have its tomatoes shipped and sold in carload lots. * * * I bought some cash tomatoes to put in the cars. Those that I paid cash for I made a difference of 15 to 20 . cents per crate less than the prices given to the customers of the customers of the merchants.”

The court may only take the case from the jury if there is not sufficient evidence tending to prove agency. Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768; 1 Clark & Skyles on Agency (Ed. 1905) § 70. And in the evidence it would appear that Mr. Sackett, as manager for the Elberta Fruit Company, had authority to ship the tomatoes in carload lots. The question then is whether it was within the scope of his authority, as such agent; to purchase tomatoes from other parties “solely for the purpose,” as Mr. Sackett testifies, “of enabling me to ship the tomatoes of Elberta Fruit Company and those of the Douglas farm in carload lots.” As further said:

“It was greatly to the advantage of the El-berta Fruit Company to have its tomatoes shipped and sold in carload lots.”

The purchase, if done, of other tomatoes would be with the purpose of promoting the business of the principal, by making it to the advantage and profit of the principal of shipping in carload lots. Having the authority, as Mr. Sackett had, of shipping and selling the tomatoes of the Elberta Fruit Company in carload lots, such authority would carry with it, as an incident, all the powers which are necessary, proper, usual, and reasonable as a means of effectuating the purposes for which the original authority of shipping and selling to the best advantage was conferred. It is the rule that incidental powers, or such powers as are necessarily and reasonably incidental to the actual authority, are elements that go to make up an agent’s apparent scope of authority. See rule in McAlpin v. Cassidy, 17 Tex. 449; 1 Clark & Skyles on Agency, § 209 ; 31 Cyc. p. 1344, subd. 5. So it may not be held, as a matter of law, that the evidence fails to show that Mr. Sackett, as agent, was acting within the scope of his authority so as to bind his principal by a purchase, if made, of tomatoes of the appellant.

We have not attempted to set out all the evidence in the record. But upon considering all the evidence, we have concluded there was error in giving a peremptory instruction.

Appellee argues, besides other points, that appellant may not recover, because appellant, in dealing with Mr. Sackett, never, made inquiry and did not ask Mr. Sackett whether he was acting for the Elberta Fruit Company or not in taking the tomatoes. This particular circumstance, in view of the other circumstances in evidence, may not be regarded as conclusively showing a want of any contract to sell tbe Elberta Fruit Company tbe tomatoes. And tbe circumstances in evidence concerning tbe dealing of appellant witb Mr. Sackett are of that force and extent that tbe court may not bold, as a matter of law, that appellant failed to use reasonable prudence in dealing witb Mr. Sackett as agent of tbe Elberta Fruit Company.

Tbe judgment is reversed, and tbe cause remanded for trial.
      feai'or other oases see same topic and KEY-N UMBER, in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. MILLER & WHITE.
    (No. 8460.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 4, 1916.
    Rehearing Denied Dec. 2, 1916.)
    1. Carriers &wkey;5l80(3) — Joint Liability — Liability fob Proportionate Pabt of Damages.
    While in intrastate shipments, which are not through shipments, a carrier may by contract limit its liability to damages occurring by reason of negligence on its own line, if the damages proven are shown to have resulted at least, partially from the joint negligence of two carriers, each may properly be held responsible for the proportion of the damages accruing which its negligence bears to the entire negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 821; Dec. Dig. <&wkey;>180(3).]
    2. Carriers <&wkey;150 — Live Stock — Stipulation Against Liability foe Negligence.
    A common carrier may not stipulate so as to relieve itself from liability arising from its own negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 654^-659; Dec. Dig. &wkey;150.]
    3. Carriers &wkey;>228(5) — Carriage of Live Stock — Negligent Refusal or Failure to Accept Shipment — Sufficiency of Evidence.
    In an action for delay in shipment of live stock in transit, evidence held sufficient to justify a finding of a negligent refusal or failure of a defendant railway to accept the shipment at a connecting point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <&wkey;>228(5).]
    4. Carriers &wkey;>219(4) — Carriage of Live Stock — Joint Liability of Roads.
    Where the negligence of a railroad in failing or refusing to accept a shipment of live stock at a connecting point, concurred with the negligence of a connecting road in failing to deliver the shipment in question, on the transfer track, both companies were responsible for delays and the consequent damages proximately resulting from such negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 950; Dec. Dig. <&wkey;>219(4).]
    5. Carriers <&wkey;219(4) — Carriage of Live Stock — Delay.
    If the failure of a railroad to receive a shipment of live stock when tendered it by a connecting road was negligence, and such negligence prevented the shipment of the cattle that night to destination, the railroad cannot excuse itself from liability on the ground that it did not actually receive the shipment until the next day.
    [Ed. Note.- — For other cases, see Carriers, Cent, Dig. § 950; Dec. Dig. <§^219(4).]
    6. Trial &wkey;3296(ll) — Instructions—Cure of Error.
    In an action against two railroads for delay in shipment of live stock in transit, the court charged that if the jury found for plaintiffs against both defendants, they should apportion such damages if any, according to and in proportion to the respective liabilities of the defendants, and state in their verdict the amount of damages, if any, found against each defendant. The charge was objected to as failing to inform the jury what the liabilities of the two defendants were, or to afford any guide in assessing damages against them. The court charged specially at the request of a defendant that the undisputed evidence showed that the live stock was shipped over the line of such defendant under a written contract under the terms of which it was agreed that defendant would only be liable for any damage which might occur on the line of defendant, or as the result of its negligence, so that plaintiffs could not recover against defendant for any damages except such as the evidence showed was occasioned by the negligence of defendant, its agents or employes. Held, that any deficiency in the main charge was cured by the special charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 715; Dec. Dig. <&wkey;296(ll).]
    7. Appeal and Error <&wkey;1140(l) — Excessive Damageo — Remittitur.
    In an action for delay in the shipment of live stock in transit, that the verdict is excessive to the extent of the improvement in selling appearance of the cattle on Thursday when they were sold over Wednesday, the day when they arrived, was at most only a question of requiring a remittitur.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462, 4464, 4470-4474; Dee. Dig. &wkey;>1140(l).]
    8. Appeal and Error &wkey;>1032(l) — Prejudicial Error — Burden.
    The burden is on appellant to show probable injury as well as error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047, 4051; Dec. Dig. <&wkey; 1032(1).]
    9. Appeal and Error <&wkey;1140(l) — Small Error in Verdict — Remittitur.
    In an action for delay in shipment of live stock in transit, error in the verdict in that it left undetermined only the question of 25 cents per hundredweight on 470 pounds, due to decline in market from Tuesday to Thursday, was too small to even require remittitur.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462, 4464, 4470-4474; Dee. Dig. <^=>1140(1).]
    10. Evidence <&wkey;471(35) — Opinion or Conclusion of Witness.
    In an action for delay in shipment of live stock, the question to plaintiffs: “Can you, by looking at this account sales, tell what the difference in the market value of the cattle in question were on Thursday, the 18th of December, 1913, and on Tuesday, when you should have gotten there?” was improper, so far as the part “when you should have gotten there” was concerned as calling for an expression of opinion, and a conclusion on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2185; Dec. Dig. &wkey;j471(35).]
    11. Appeal and Error &wkey;>1048(5) — Harmless Error — Evidence.
    The impropriety of such question in that it called for an expression of opinion was harmless, where the witnesses answered, showing the difference in the market value of each kind of stock included in the shipment on Tuesday and Thursday.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4143, 4151, 4158, 4159; Dec.' Dig. &wkey;104S(5).]
    12. Evidence &wkey;>471(35) — Opinion.
    In an action for ■ delay in a shipment of live stock, where the market value of the cattle on Thursday was established practically beyond question by the introduction of the account sales, it being agreed that it showed the market value of the different animals sold, plaintiffs were properly permitted to testify as to the difference in the market value of their cattle on Tuesday and Thursday, rather than stating what the market value was on the two dates, and leaving to the jury the question of determining the difference.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2185; Dec. Dig. &wkey;471(35).]
    13. Appeal and Error <&wkey;203(3) — Reservation OE GROUNDS OP REVIEW — TESTING ACCURACY op Witness.
    Where appellant failed to test the accuracy of a witness on certain matter, it could not complain on appeal of the answer made.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>203(3); Witnesses, Cent. Dig. § 536.]
    14. Caebieks &wkey;>230(6) — Carriage op Dive Stock — Negligent Delay — Question por Jury.
    In an action against two defendants for delay in shipment of cattle, the question whether a road was liable as partially responsible for the delay, held for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; De¿ Dig. &wkey;230(6).]
    15. Carriers &wkey;>228(5) — Carriage op Live Stock — Negligent Delay — Suppiciency op Evidence. _
    _ In an action against two railroads for delaying a ■shipment of live stock, evidence as to negligent delay by defendants held sufficient to support a verdict for plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;228(5).]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Suit by Miller & White against the St. Louis Southwestern Railway Company of Texas and another. From a judgment for plaintiff, both defendants appeal.
    Judgment against each defendant affirmed.
    Kearby & ICearby, of Comanche, A. R. Eid-son, of Hamilton, and Keith & Pittman, ■of Stephenville, for appellants. H. N. Good-son, of Comanche, for appellee.
   BUCK, J.

This is the second appeal of ■this case; the opinion of this court on the first appeal being found in 176 S. W. 830. The pleadings on both trials are the same, and the evidence largely so. The cause was submitted to the jury in a general charge, and the jury found for the plaintiffs against the defendant St. Louis Southwestern Railway Company, hereinafter called the Cotton Belt, $214.36, and against the Receivers’ Railway Company, $109.10, without interest; ■the aggregate amounts so found being the sum for which suit was brought. Thereupon judgment was rendered for the plaintiff in conformity with the verdict. Both defendants appeal.

The damages alleged by plaintiffs are itemized in their petition as follows:

(11) The plaintiffs allege that the car of live stock billed out in the name of H. L. White, contained 34 head of cattle and one hog, and the car in the name of H. W. Miller contained 32 head of cattle.
(12) The plaintiffs allege that by reason of the premises set out that the different items of their damage and injury,are as follows:

As to the car last named, shipped in the name of H. W. Miller, as follows:

To 25 cents per hundredweight decline in market from Tuesday to Thursday, on the entire shipment in said car of 22,150 pounds . $55.37
To 10 per cent, damage in selling appearance and market condition on 22,-150 pounds. 22.15
To 50 pounds per head shrinkage on 30 head of grown stuff in said car at market price of same on December 16th, and 25 pounds per head shrinkage on 2 calves at market price of same on December 16th. 80.49

On said other car in name of H. L. White, as follows:

To .25 cents per hundredweight on said entire shipment decline in market from Tuesday, the 16th, to Thursday, the 18th, of December on 19,960 pounds . $ 49.90
To 10 cents per hundredweight damage in selling appearance on 19,960 pounds . 19.96
To 50 pounds per head shrinkage on all grown cattle and hogs and 25 pounds per head shrinkage on all calves in said shipment at market price on Tuesday, December 16th . 88.09
To extra feed bill on both cars. 11.50
To total damage on both cars.$323.46

We do not find any error in the refusal of the trial court to give defendant receivers' proffered peremptory instruction, as claimed in its first assignment, because, as asserted, the plaintiffs were not entitled to recover against the defendants separately, because of a plea of joint liability, without any allegation as to the amount or character of any several liability, the evidence showing that contracts of shipment entered into between the plaintiffs and the two defendants were several, and not joint.

The plaintiffs alleged both separate acts of negligence and joint negligence, and pleaded both several and joint liability, specifying the negligent handling of the cattle between Lamp-kin and Comanche by the Cotton Belt, and until the delivery by it to its co-defendant, and then alleged acts of negligence on the part of the Receivers’ Railway between Comanche and North Ft. Worth. They alleged negligence on the part of the Cotton Belt for failure to deliver to its co-defendant the shipment in question within a reasonable time, and negligence on the part of the Receivers’ Railway for failure to receive the shipment promptly upon " tender. Allegations of negligence against each road were made because of delays and rough handling. The court submitted to the jury only the question of several liability, and the jury found as to the several liability, assessing the damage against each defendant in proportion as its negligence caused, or contributed to cause, the total damage.

While in intrastate shipments, the same not being through shipments, a carrier may by contract limit its liability to damages occurring by reason of negligence on its own line, yet, if the damages proven are shown to have resulted, in part at least, from the joint negligence of the two carriers, each carrier may properly be held responsible for the proportion of the damages accruing which its negligence bears to the entire negligence. T. & P. Ry. Co. v. Slaughter, 37 Tex. Civ. App. 624, 84 S. W. 1085; G. C. & S. F. Ry. Co. v. Godair, 3 Tex. Civ. App. 514, 22 S. W. 777.

A carrier may not stipulate so as to relieve itself from liability arising from its own negligence. H. & T. C. Ry. Co. v. Davis, 11 Tex. Civ. App. 24, 31 S. W. 308, aff. 88 Tex. 593, 32 S. W. 510; M. P. Ry. Co. v. China Mfg. Co., 79 Tex. 26, 14 S. W. 785. Therefore we overrule the first assignment.

Under the second assignment appellant receivers further allege error in the failure of the court to give the peremptory instruction requested, because, as claimed, the evidence shows without dispute that the receivers, by contract, limited their liability to injuries received, or damages occasioned, by their own negligence, after said cattle had actuary been received 'for transportation, and that the evidence does not show that these receivers were guilty of any negligence in detaining said cattle at Comanche, nor in the condition of its pens at said place, nor was there any evidence of the market value of said cattle at the time they should have arrived at their destination if the receivers had exercised ordinary care after receiving the same, which time of arrival was Wednesday morning, nor was there any evidence of !the difference in the market value between Wednesday morning and the time the cattle were sold, to wit, Thursday morning.

The evidence shows that the cattle arrived at Comanche from Lampkin before Receivers’ north-bound cattle train reached Comanche. Plaintiff Miller testified upon this point as follows:

“No, we didn’t unload the cattle, because we didn’t want to break the seal, and we didn’t want to unload. We wanted to go to Ft. Worth; we wanted to be transferred to the Prisco and go on to Ft. Worth, but the agent of the Frisco said they didn’t have any orders to take ns,' and the Cotton Belt unloaded us at their pens. Yes, the Cotton Belt had time to have set the car before the Frisco went north, but did not do so. It was about 30 minutes after I got to the depot before the north-bound Frisco came in. The cattle were unloaded in the Frisco pens about 9 o’clock next day (Tuesday), and remained in there for about 12 hours.”

Plaintiff White testified:

“Yes, the Cotton Belt agent told us that we would get here [Comanche] in time to get the Frisco that night. We expected to be transferred to the Frisco, but they backed us back to the stock pens and unloaded us. I don’t know what was said; a boy was there acting as agent. We went over to the Frisco and asked him what about it, and he said he had no orders to take our cattle. When the Frisco run in he asked the conductor if he was going to take our cattle, and he said he didn’t have any orders to take us. The agent didn’t come until we went to the Frisco. Miller had left and went back, and the conductor said he had no orders to take us. Yes, I told the agent I wanted the cattle to go; I asked him if there wasn’t a switch or something he could come over and get our cattle, and he said he couldn’t do it. I don’t know how long the Frisco stayed after it got there.”

Upon cross-examination by counsel for the Cotton Belt, witness was asked:

“You got here a good while before the Frisco came in, didn’t you? A. Yes, sir.”

G. W. Jessup, agent for receivers, testified in part:

“I don’t know why we didn’t take the cattle that night; the train was due here at 9:13 o’clock at night and due in North Ft. Worth, or West Yards, at 5:15 a. m.”

It was agreed that R. N. Davis, conductor for Receivers’ train, handled the shipment in question from Comanche to Ft. Worth, and if present would testify that he received the cattle on December 16, 1913, 10:30 p. m. (Tuesday), that they arrived at West Yards, 10:40 a. m., December 17th (Wednesday).

We think the evidence is sufficient to justify a finding of a negligent refusal or failure of the Receivers’ Railway to accept the shipment on the night of Monday, the 15th. If this negligence concurred with the negligence of the Cotton Belt in failing to deliver on the transfer track the shipment in question, both railway companies would be responsible for delays and the consequent damages proximately resulting from such negligence. G., C. & S. F. Ry. v. Terry et al., 89 S. W. 792; Pecos River R. Co. v. Latham, 40 Tex. Civ. App. 78, 88 S. W. 392; T. & P. Ry. Co. v. Slaughter, 37 Tex. Civ. App. 624, 84 S. W. 1085.

If the failure of the defendant Receivers’ Railway to réeeive the shipment in question when tendered on Monday night was negligence, as the jury was justified in finding, and such negligence prevented the shipment of the cattle Monday night to Ft. Worth, the defendant receivers would not be permitted to excuse themselves from liability on the ground that they did not actually receive the shipment until the following day. Therefore the second assignment is overruled.

In paragraph 5 of its main charge the court charged the jury as follows:

“If you find for the plaintiffs as above instructed against both defendants, you will apportion such damages, if any, according to and in proportion to the respective liabilities of said defendants, and state in your verdict the amount of damages, if any, you find against each of said defendants.”

This charge is objected to in receivers’ third assignment:

“Because said charge fails to inform the jury what the liability of the two defendants are or to afford them any guide in assessing such damages against the several defendants.”

The following special charge, omitting formal parts, was given at the request of receivers:

“The undisputed evidence in this case shows that plaintiffs’ live stock was shipped over the line of the defendant receivers from Comanche, Tex., to North Et. Worth, Tex., under a written contract, under the terms of which contract it was agreed that said defendant carrier would only be liable to the plaintiffs for any damages whic'h might occur to their live stock in said shipment on the line of said carrier, or as the result of the negligence of said carrier, or that of its employes. I therefore instruct you in this case that the plaintiffs herein cannot recover against the carrier above named for any damages except such as the evidence, if any, in this case might ¿how was occasioned by the negligence of said carrier, or that of its agents or employés.” ’

We think any deficiency in the main charge was cured by the giving of this special charge, and the third assignment is overruled. It appears the court gave every special charge tendered.

In the fourth assignment it is claimed the verdict of the jury is contrary to and unsupported by the evidence, as against the receivers, in that:

“The undisputed evidence shows that said cattle were not received for shipment by these receivers until Tuesday about 10 a. m., contract of shipment being made that same afternoon, and that the earliest market said cattle could have been delivered upon at Ft. Worth after such receipt was Wednesday morning, and there is no evidence in the record of the difference in the market value of said cattle on Wednesday’s and Thursday’s market, but only as to the difference in Tuesday’s and Thursday’s.”

From what we have said in the discussion of prior assignments as to the concurring negligence of defendants causing the delay at Comanche, we hold that the proper measure of damages was to be determined, in part, by the difference in the market value on Tuesday, the date when said shipment would have reached the market except for the delay occurring at Comanche, and that between Comanche and Ft. Worth, and the Market value on the day on which they were sold, the evidence showing that the cattle were sold on the first market after reaching Ft. Worth.

The fifth assignment urges error in the way of failure of proof to sustain the verdict, as to the item of damage of 10 cents per hundredweight in damaged selling appearance on a total of 42,110 pounds or §42.-11. We are referred to the fact that plaintiff Miller testified:

“When I testified that the cattle were damaged 10 per cent, in selling appearance, I had reference to their condition when they arrived at Ft. Worth Wednesday afternoon. * * * Yes, sir; the cattle looked better the next morning. Yes, sir; as a whole, they all looked better the next morning."

Appellant receivers claim that as there was no evidence as to the amount of improvement in selling appearance on Thursday, when the cattle were sold, over Wednesday, when they arrived at Ft. Worth, and as the jury found the full amount claimed, that the verdict is excessive to the extent of the improvement in selling appearance of the icattle on| Thursday over Wednesday.

This, at most, would only be a question of requiring a remittitur, and as the appellant receivers have failed to show that the verdict is materially excessive, if at all, and, as the burden is on the appellant to show probable injury as well as error (K. C., M. & O. Ry. v. Beckham, 152 S. W. 228, and other cases cited in Vernon’s Annotated Civil Stats, under article 1628, p. 904, § 8), the assignment is overruled.

The sixth and seventh assignments allege excessiveness of verdict as to the one hog shipped. The allegations, as will be noted, as to the hog included in the car shipped in the name of H. B. White, are “25 cents per hundredweight” and “50 pounds per head shrinkage.” The evidence shows that the hog weighed at time of shipment 532 pounds, and at time of sale 470 pounds, making a loss of 62 pounds. Allowing 50 pounds for' shrinkage, as pleaded, for improper handling, would leave only the question of 25 cents per hundredweight on 470 pounds due to decline in market from Tuesday to Thursday undetermined by the verdict. Such amount is too small to even require a remittitur in our opinion, on the theory of lex non curat de minimis, and therefore it becomes immaterial that the hog in fact was sold on Wednesday instead of Thursday, as alleged in the petition.

The eighth assignment is leveled at the action of the court in admitting the answer of the plaintiffs while testifying in their own behalf to the following question:

“Can you, by looking at this account sales, tell what the difference in the market value of the cattle in question were on Thursday, the 18th of December, 1913, and on Tuesday, when you should have gotten there?”

To which the witnesses answered, showing the difference in the market value of each kind of stock included in the shipment on Tuesday and on Thursday. While that part of the question, to wit, “when you should have gotten there,” was undoubtedly improper, as claimed by appellant, as calling for an expression of opinion and a conclusion on a mixed question of law and fact, as held in a number of cases, including the Roberts Case in 101 Tex. 421, 108 S. W. 808, and G., C. & S. F. Ry. Co. v. Bogy, 178 S. W. 577, yet the answer, being a mere statement of the difference in the market value of the cattle and hog on the two days mentioned, we think any impropriety or error is thereby rendered harmless. Therefore we overrule this assignment, and likewise the ninth, which attacks the action of the court in permitting the plaintiffs to testify as to the difference in the market value of the cattle in question on Tuesday, the 16th, and Thursday, the ISth, rather than stating what the-market value was on the two dates mentioned and leaving to the jury the question of determining the difference.

Since the market value on the 18th was established practically beyond question by the introduction of the account sales, it being agreed by all parties that the same showed the market value of the different animals sold, the answer constituted merely a shorthand rendition of testimony as to the market value on the two days mentioned. If appellant desired to test the accuracy of the witness as to the stated percentage or depreciation, he could havé done so, and, having failed so to do, he cannot here complain of the answers made. T. & P. Ry. Co. v. Fambrough, 55 S. W. 188-190; St. L., I. M. & S. Ry. v. Boshear, 108 S. W. 1032.

For reasons heretofore given we overrule the tenth assignment of appellant receivers.

Appellant Cotton Belt’s first assignment is directed to the refusal of the court to give a peremptory instruction in its behalf, and for the reasons given in discussing the like question raised by its eoappellant, and for the further reason that the testimony shows that there was considerable delay in going from Lampkin to Comanche, a trip of 21 miles, requiring some three hours, and further that the evidence shows that the Cotton Belt had time to place two cars containing appellees’ live stock on the transfer track, from which it would have been the duty of the Receivers’ Railway to take them, and that if it had so placed the cars, and said cars had been attached to the train of receivers, which came into Comanche after the arrival of the Cotton Belt train, said shipment would have, in due course, reached North Ft. Worth in time for Tuesday’s market, we think the assignment is without merit. J. C. Gayle, conductor on the Cotton Belt, testified:

That whenever they had a car to be carried on the Frisco, they put it on the transfer track, and that was all they had to do. “Yes, sir; the transfer is made by putting the car on the transfer track. No, I don’t think I left the car on the transfer track. I had plenty of time to have left it on the track. Yes, according to the agreement between the Cotton Belt and Frisco, if I had left it on the transfer track that would have been a delivery. Yes, if I had pushed them up across the road or street, that would have been a delivery. Yes, sir; I understood this to be the rule.”

Nor do we find any merit in appellant Cotton Belt’s second specification of error that the verdict is not supported by the evidence, in that the undisputed evidence in this case showed that the defendant only agreed to carry the plaintiff’s live stock to Comanche, and there to deliver it to its connecting carrier, and the undisputed evidence further shows that the defendant did safely carry said live stock to Comanche in time for said cattle to have been carried to Ft. Worth on the night of the 15th, and that said receivers failed and refused to accept said shipment for transportation on said night.

In addition to the testimony of the conductor, quoted above, plaintiffs testified that instead of placing the two cars of cattle on the transfer track, appellant Cotton Belt’s conductor ordered the said two cars back to its pens there to be unloaded. And the evidence further shows that plaintiffs were using their utmost endeavors on the agents and employes of both roads to get their cattle shipped through to Ft. Worth Monday night. The evidence shows that on their arrival at Comanche the cattle looked “all right; not particularly damaged or drawn.” Plaintiff Miller testified:

“Yes, sir; the agent at Lampkin told us we would get the Frisco train that nig'ht. We told him we didn’t want to be billed out if we couldn’t make it.”

Plaintiff White testified:

“Yes, we tried to get the Cotton Belt to transfer us that night, but they did not, and the next morning about 9 o’clock they were unloaded in the Frisco pens. Yes, they were unloaded in the Cotton Belt pens, reloaded, and then unloaded in the Frisco pens.”

From the verdicts returned against each of the defendants, the jury evidently concluded from the evidence that the appellant Cotton Belt was largely responsible for the delay at Comanche, and that if it had placed the cars on the transfer tracks, where it'is admitted they should have been placed, in order to constitute a tender of the shipment to the receivers’ line, that the main part of the damage would have been avoided.

Without discussing separately each of the other six assignments contained in appellant Cotton Belt’s brief, we feel it sufficient to say that we have carefully examined the same and find no reversible error.

All assignments are overruled, and the judgment against each defendant is affirmed.
      ffi=AEor other cases see same topic and KEYrNUMBER in all Key-Numbered Digests and Indexes

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