author: MOURSUND, J.

text:
    RAYWOOD CANAL & MILLING CO. v. SHARP et al.
    (No. 5447.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 31, 1915.
    Rehearing Denied April 21, 1915.)
    1. Vendor and Purchaser <&wkey;334 — CONTRACTS — Performance — Recovery oe Partial Payments Made.
    Where a vendor, in a contract of sale stipulating for partial payments and a conveyance of good title at a future date subject to a vendor’s lien, and for the return of the partial payments on the vendor being unable to make good title within a specified time, did not disclose to the purchaser that he had made a prior contract of sale to a third person, who had executed a deed of trust, the purchaser, on the vendor being unable to convey good title within the time fixed, could recover the money paid and a note executed for a partial payment, as against the objection that the purchaser consented to the bringing by the vendor of a suit against the third person to determine his rights, and the purchaser could not be required to await the outcome of that suit to enable the vendor, if successful therein, to convey a good title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. &wkey;»334; Contracts, Cent. Dig. § 1203.]
    2. Vendor and Purchaser <&wkey;340 — Contracts — Enforcement—Waiver.
    Where a vendor knew, at the time a note given by the purchaser for a part of the price matured, that he could not execute a deed conveying good title, as stipulated for in the contract of sale, and he made no demand on the purchaser to pay the note, he waived nonpayment, and could not rely thereon to defeat an action by the purchaser for a partial payment made and for the note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1003-1007 ’, Dec. Dig. &wkey;>340.]
    3. Vendor and Purchaser &wkey;>334 — Contracts — Enforcement—Waiver.
    A vendor, contracting to convey real estate on the purchaser paying a specified sum subject to a vendor’s lien for the balance, notified the purchaser of his inability to convey because of an outstanding contract in favor of a third person who had executed a deed of trust, and stated his unwillingness to continue the contract with the purchaser indefinitely, unless the purchaser made the payments stipulated for in the contract. Thereafter the vendor offered to close the deal without fixing any time when he thought he could make title, and the purchaser at that time stated that he did not have the money and could not take the land. The vendor was unable to convey a good title within the time fixed by the contract, and it might take a long time thereafter before he could perfect his title. Seld, that the purchaser could recover the partial payment made and a note given for a partial payment.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. t&wkey;>334; Contracts, Cent. Dig. § 1203.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Action by Alex A. Sharp against the Raywood Canal & Milling Company and another. From a judgment for plaintiff against defendant named, it appeals.
    Affirmed.
    Robt. A. John, E. R. Spotts, and A. M. John, all of Houston, for appellant. Gill, Jones & Tyler, ofoHouston, for appellee.

       Writ of error pending in Supreme Court.

   MOURSUND, J.

Appellee sued Raywood Canal & Milling Company and R. E. Brooks to recover $5,000, with 6 per cent, interest thereon from June 1, 1909, and for the cancellation of a $5,000 note given by appellee to said company, dated August 1, 1909, alleging that he had paid to the defendants said sum as earnest money under a contract to purchase certain lands, and had given the note in lieu of a further payment of earnest money; that defendants breached the contract under which the money was paid and the note given, in that they failed to furnish completed abstracts, and in that they failed to tender a good and marketable title as shown by the abstracts furnished, and that defendants could not make title to the lands involved in accordance with the terms of said contract; that Sharp, when he found that defendants would not be able to tender a good and marketable title, and when he ascertained that said parties had failed .and refused to comply with said contract with him, demanded the return of said $5,-■000 paid by'him and the cancellation of the ■note, but' defendants refused to comply with such demand. Brooks answered, to the effect that the money was paid and note given to the Raywood C'anal & Milling Company, and that he acted in the premises only as the agent of said company. Raywood Canal & .Milling Company admitted that it entered into a contract with Sharp to sell him the lands mentioned in his petition, and alleged that it furnished abstracts to attorneys selected by him, which were retained and ex.amined by such attorneys, and that upon said attorneys objecting to the title in certain particulars, said company promptly met and cured all objections except that created by an adverse claim of one Edwin D. Lowe; that said claim was baseless, but it was agreed upon the part of Sharp and his attorneys that said company should prosecute a suit against Lowe; that the nature of the suit so prosecuted by the company was aC- ■ quiesced in by Sharp and his attorneys; that it was diligently prosecuted and the cloud cast upon the title by said claim of Lowe ■ was removed; that Sharp expressly waived any objection to the title by reason of said i claim of said Lowe and’ those claiming under him. Said company further alleged that while it was in all things performing its • obligations i under said contract, Sharp :breached the same by failing to make a payment of $5,000, with interest, from August "1,1909, at 6 per cent, per annum, due December 1, 1909; that prior to January 1, 1910, the date upon which, under a modification • of the original contract, the company was ■to finally perfect and tender to Sharp good and merchantable title, but subsequent to the breach of the contract by Sharp in failing to pay the $5,000 on December 1, 1909, .said company tendered to-sharp a good and merchantable title to said lands in every particular, or, if not a good and merchant.able title in every particular, then such a title with the exception of the claim of Lowe .and those claiming under him, which had .been expressly waived by said Sharp, and that then and there Sharp declined to purchase the lands, and declined to pay the $5,000 due December 1, 1909 or the $40,000 • due January 1, 1910, on the ground that he was unable financially to carry 'out his obligations under the contract. Defendant company alleged, further, that it had an agreement with Lowe whereby it could have se- • cured the necessary instruments from him .to clear the cloud cast upon the title by his purported claim, but that the suit against ..Lowe was .at the request of Sharp and his counsel, and by reason of such fact Sharp was estopped to set up the company’s failure to clear the title of the cloud of the Lowe claim by January 1, 1910. Two supplemental petitions were filed, as well as a supplemental answer, in which issue was joined upon the allegations relied upon by each party, but we conclude it will not be necessary to make any further statement of the pleadings than the foregoing. A verdict was returned, pursuant to instruction by the court, in favor of Brooks individually as against plaintiff’s suit, and in favor of plaintiff against the company for $5,000 with interest thereon at 6 per cent, per annum from January 1, 1910, as well as for the cancellation of the note dated August 1, 1909. Judgment ’was rendered upon such verdict, arid this appeal was perfected by the company.

Summary of Evidence.

The contract entered into between. appellant and Sharp reads as follows:

“Houston, Texas, April 26, 1909:
“Mr. Alex A. Sharp, City — Dear Sir: X will sell you the Raywood Canal & Milling Co. lands in Liberty and Chambers Counties, Texas, approximately 24,000 acres, and in addition thereto all the town lots belonging to the company in the town of Raywood, Texas, except such as have buildings, for a consideration of $325,000.-00, payable as follows: $5,000.00 on June 1st, 1909: $5,000.00 on August 1st, 1909; and $40,-000.00 on January 1st, 1910. Upon payment of the total of $50,000.00 on January 1st, 1910, we will execute you a general warranty deed conveying said property, retaining a vendor’s lien to secure the purchase money notes, which are to be divided into six notes, five for $50,-000.00 each, due in one, two, three, four and five years, respectively, from January 1st, 1910, and the sixth note for $25,000.00 due six years from date of said deed, all notes to bear 6 per cent, interest from January 1st, 1910, interest payable annually, and providing for 10 per cent, attorney’s fees on usual terms and providing that failure to pay any note on installment of interest shall mature all notes at the option of the holder thereof. The deed shall contain provision that the vendor’s lien retained thereon shall be released upon payment of $13.50 per acre each, or upon the payment of not less than $6.00 per acre and not less than $7.50 per acre in first lien notes on the land sold and also secured by deed of trust on the land so sold or upon delivery of like secured notes for $13.50 per acre. In the event release is obtained on notes only the notes given shall be all the notes received by you on the resale of the property.
“After January 1st, 1912, the releases to be secured by paying $11.50 per acre as above and after January 1st, 1913; upon payment of $7.50 per acre as above, providing all payments then due on said land have been met. In the event the-release is obtained by delivering notes, the notes are to be held as collateral to your notes given us for purchase of said land. All notes of your vendees shall be for not longer than one, two and three years and bear 6 per cent, interest, payable annually, and secured by vendor’s lien on the land sold.
“We agree to furnish you abstracts of title on said land without delay showing good and merchantable title to us in said property subject only to a lien in favor of H. P. Drought & Co., agents, for $139,000.00. It is agreed that we will meet and pay off this indebtedness as it matures, and to secure you that we will do so we will deposit in the Union Bank & Trust Company, of Houston, Texas, your notes given ns for the purchase price of said land an amount of notes equal to the amount we are due Drought & Co., agents, and if we should fail to meet said payments to Drought & Co., agents, as they mature and you should be forced to meet same, then you shall be entitled to demand and receive from said bank an amount of your notes equal to the amount you shall pay to said Drought & Co.,' agents. It is agreed that we shall secure the release of Drought & Co., as well as our own release of lands sold by you upon the terms above set out.
“If the titles to said properties are not good and cannot be made good within thirty days, then we will return you the $5,000.00 this day paid us as earnest money on said purchase, which is the amount recited in this contract and payable June 1st, 1910.
“This sale is subject to a contract we have with E. D. Lowe for the lease of 2,500 acres of said land for the year 1909, which lease money is to be paid to us.
“Witness our hands this 26th day of April, 1900.
“Raywood Canal & Milling Co., “By R. E. Brooks, Prest.
“Accepted: Alex A. Sharp.”

At the, time the contract was executed Sharp paid to R. E. Brooks, for the company, the $5,000 earnest money. After the contract had been executed and delivered, defendant Brooks, who was president of the defendant company, informed Sharp of the fact that said company had, about two years before, entered into a contract to sell the same land to E. D. Lowe, and a deed from the company to Lowe, as well as his vendor’s lien notes and the contract, was being held in escrow by Brooks; that the transaction had never been canceled, and Lowe was still trying to raise money to complete the trade. On June 1, 1909, Hogg, Gill & Jones wrote Brooks, acknowledging receipt of copy of contract between Sharp and the company, and stating:

“I note from the contract that no time is stated in which abstracts shall be examined, and I presume the proper construction is that if the titles are not good and cannot be made good within thirty days after report on the title, the $5,000.00 earnest money is to be returned. We will try to get report to you on this title by July 1, as per our conversation with you on last Friday.”

Sharp employed Messrs. Hogg, Gill & Jones to examine the title to the land, and when the Lowe matter was first discussed between Brooks and F. O. Jones of the above-named firm, according to Brooks’ testimony, they concluded that the contract with Lowe had terminated according to its terms, and no necessity existed for filing any suit to cure the defect caused by the existence of such contract. This discussion took place prior to June 30, 1909, and at the time Jones did not know that Lowe had organized a corporation known as the . Raywood Company to which he had deeded the entire property, and that said corporation had executed deeds of trust upon the land to Blechanics’ Trust Company of Boston to secure an issue of bonds payable to bearer. After these facts became known to Jones, and after Brooks learned that a man named Moiling was asserting that Lowe had some claim against the lands, another conference took place between Brooks and Jones in which Jones expressed the opinion that the best thing to be done in regard to the Lowe matter was to bring suit and clear it up. Brooks promised to do this. The character of suit to be brought was not discusssed. This conference must have occurred prior to June 30, 1909, for on that date Jones wrote Brooks, inclosing a copy of his opinion delivered to Sharp regarding the titles, in which opinion he calls attention to the existence of record of the deed of trust from the Raywood Company to the Mechanics’ Trust Company, and informs Sharp of the entire situation with regard to the Lowe matter, of Molling’s activity, of the fact that the matter had again been taken up with Judge Brooks, and that he had given assurance that he would file suit to clear up the matter. Numerous defects in the titles were pointed out in said opinion, and in the letter to Brooks Jones expressed the desire to discuss the opinion with Brooks or his attorneys at any time. On July 17, 1909, Hogg, Gill & Jones wrote appellant, describing the many instruments considered by them to be necessary to clear Up the titles. On October 8, 1909, they wrote Brooks, returning a few of the abstracts, with request that they be brought down to date. On July 20, 1909, Brooks wrote Sharp as follows:

“I have received copy of opinion from your attorneys, Messrs. Hogg, Gill & Jones, upon the titles to the Raywood lands. I suppose you have also received copy of this opinion. It will be an easy matter to meet all the objections raised by them to the titles, but will take a little time, especially as to the Lowe matter upon which we expect to file suit to clear this up. However, it can all be done prior to January 1, 1910, the date when deed is to be executed.
“On August 1st, there will be due another payment by you of $5,000.00. Will you send us check for this amount or shall we make draft or how do you wish to handle it?
“I shall proceed at once to meet the objections raised by your attorneys.”

The provision in the contract for payment of $5,000 by Sharp on August 1, 1909, was waived, and he gave his note which, it is admitted, was by mistake made payable December 1, 1910, instead of December 1, 1909. According to Brooks’ testimony, this was done for the accommodation of Sharp. The provision in regard to making titles good in 30 days was also waived, and while no express agreement was made as to the time in which, they were to be made good, it is evident that the parties expected them to be made good by December 1, 1909, and that the time when the deed was to be made, viz., January 1, 1910, was considered the ultimate time in which they were to be made good. Brooks, instead of suing to cancel the contract for nonperformance, on September 8, 1909, sued upon the vendor’s lien notes and for foreclosure of the lien, thereby, affirming the contract, and electing to convey the land to Lowe under the contract, and therefore Lowe and his vendee had the right to redeem the land by paying the debt sued for. In the petition it was alleged that the consideration for the conveyance to Lowe was $750,000 of which $400,000 was paid, and the remainder was to consist of deferred payments. Lowe and his associates answered on September 22, 1909, and on October 28, 1909, filed an elaborate and formidable amended answer and cross-bill for damages in a large sum. The company obtained a judgment on March 8, 1910, for $251,064.46 and for foreclosure of its vendor’s lien. The land was sold under this judgment, and was bought in by the company, and it still has an unsatisfied balance due on the judgment for about $200,-000. Sharp did not pay the $5,000 note on December 1, 1909, nor was any demand made upon him for the payment thereof. On December 6, 1909, appellant, acting by Brooks, wrote Hogg, Gill & Jones as follows:

“In reference to the sale to Dr. Alex A. Sharp of 24,000 acres of land in Liberty and Chambers counties, as per our contract of April 26th, ’09, will say, that we have met all your objections to the title to this property, I believe, except the E. D. Lowe matter. We filed suit on the notes of Lowe to foreclose on this property and he has filed an answer setting up a counterclaim, for a large amount. There is absolutely nothing whatever in his counterclaim but delay and it may take a long time however to reach the case and have it disposed of.
“We are willing to deed property and give warranty deed to Dr. Sharp and put him in-actual possession of the property, and will obligate ourselves to bring the Lowe suit to trial as soon as possible, but we are not willing to continue the contract with Dr. Sharp indefinitely, unless he makes the payment he was to make on Jany. 1st, 1910, as we had expected to have this to meet payment due Drought & Co. on the land on that date. Unless we get this I fear Drought & Co. will foreclose on the land. '
“As matters stand we will have to take some stops to protect the property now, hence will be forced to tender the title to Dr. Sharp in its present condition, which we now do" formally and state that we are ready to close the sale up to him. If he is not willing to accept the title in its present condition then we will return him his $5,000.00 and cancel the contract.
“Please let me hear from you at once as to Dr. Sharp’s wishes in the matter, as something has to be done at once to protect the property.”

Hogg, Gill & Jones replied, on December 9, 1909, as follows:

“Tours of the 6th inst. received regarding the above. Replying, we beg to say that Messrs. Spotts & Mathews, since our last conference with them and you find with your Judge R. E. Brooks, have stated to us that they were working upon the title and would clear it up; but we have never had any further conference or any definite statement from them as to just what they have done. We believe that the title can be satisfactorily cleared up; but have rested upon their assurance and yours that it would be.
“We were aware of the Lowe suit being filed and believe that Dr. Sharp would be willing to take deed to the property (although we have not consulted with him, and are not authorized to speak for him in this respect), provided that you will clear up the defects that you have agreed to clear, and protect him against the Lowe suit by indemnity bond or otherwise. We are sending him your letter of December 6th, and will advise you promptly just as soon as we can hear from him.”

Brooks’ letter of December 6, 1909, was forwarded, by 1-Iogg, Gill & Jones to Sharp on December 9, 1909, addressed to Larned, Kan., which had been Sharp’s address. The letter was received by Sharp at Topeka, Kan., on the 21st or 22d day of December, 1909, the delay having been caused by his absence from the state and his family’s absence from his home in Kansas. He arrived in Houston on December 30, 1909. Brooks testified that he wrote the letter of December 9, 1909, because on December 16, 1909, there would be due on the land to Drought & Go. about $30,000, and appellant expected to get the money from Sharp to make the payment: that arrangements could have been made with Drought to wait until after January 1st; that, not hearing from Sharp, he raised the money to pay Drought, and in the mean-' time lost another buyer for the land, and on December 30th the situation had changed. On December 30, 1909, Sharp called upon Brooks, and a conversation took place, concerning which there was a conflict in the testimony of Brooks and that of Sharp and Rawson. Brooks testified:

“When Sharp came in to see me, after speaking to me he said: T suppose I will have to call that Raywood deal off.’ I told him no ; that I did not want to call it off; that I wanted him to go ahead and take the property; that I was ready to convey it.”

He testified, further, that Sharp gave as a reason for wanting to call it off his financial inability to complete the deal, but that Sharp also seemeed to think he had a right to call for the money back anyway, and not just because he did not have the money; that he (Brooks) informed Sharp that if he did call the trade off Brooks would not return the $5,000, and that he refused to tell Sharp the reason, but suggested that it was a matter better discussed with Sharp’s attorneys. On January 10, 1910, 1-Iogg, Gill & Jones wrote appellant demanding the return to Sharp of his $5,000 and his note, on the ground that appellant had failed to tender a good title on January 1, 1910, according to contract, and calling attention to the fact that said company had informed them that it was impossible for it to deliver a good title on January 1st. Brooks testified that after Lowe had filed his amended answer he had a conference with him, and it was agreed that the case should be set for December 13th, at which time Lowe should confess judgment or execute reconveyance; that later it became inconvenient for Lowe to be in Houston on December 13th, and he wanted Brooks to postpone the matter until January 14th, but Brooks told him that on January 1st he had to deliver title to Sharp, and he wanted the matter cleared up not later than the 1st day of January; that Lowe promised to be there on January 1st and reconvey the property. Brooks testified that Lowe got to Houston in January, but he did not get to see him on January 1st. Brooks did not testify to any agreement by the Haywood company or the Mechanics’ Trust Company to reconvey the lands to appellant.

Opinion.

The question is whether the court erred in instructing a verdict for appellee.

Appellant submits three abstract propositions, the first of which, when applied to the facts, may be said to amount to a contention that appellant was entitled to a reasonable time to clear up the conditions brought about by reason of the contract with Lowe, the execution of the deed by him to the Raywood Company, and the deed of trust given by said company. By reasonable time appellant means such time as was reasonably necessary to carry the suit brought by appellant against Lowe and others to a conclusion and if successful buy in the property under order of sale. This is not expressly stated in appellant’s brief, but we think necessarily follows from what is said. The' contention is so unreasonable in view of the evidence above set out, that it appears a waste of time to consider it. However, we will briefly discuss such contention.

Judge Brooks carefully refrained from mentioning the Lowe defect until he had secured a written contract with Sharp. He afterwards found that this defect was more serious than he thought it was, and got Sharp to waive the provision under which appellant was to cure all defects within 30 days. He understood that he was expected to get the title perfected by January 1, 1909, at the latest, as is shown by his letter to Sharp, as well as his testimony concerning what he told Lowe. The contract was not made with knowledge on the part of Sharp of the Lowe defect, and no agreement, express or implied, was ever-made by Sharp to let the contract await the termination of the suit against Lowe and his vendees. But appellant says that Sharp, having been advised of the Lowe matter, and having proceeded, must give such time as was reasonably necessary to remove the objections created by the Lowe transactions, i This amounts to the contention that Sharp, being assured that the titles would be perfected at the latest by January 1, 1910, and having accepted such assurance, is required by law to wait until the defects can be perfected by reasonable diligence, though such time may extend six months or even years beyond January 1, 1910. A statement of the proposition demonstrates its absurdity. It is said that Sharp and his attorneys, although not informed of the fact that appellant would elect to sue for foreclosure instead of cancellation of the Lowe contract, after the bringing of the suit acquiesced therein, and therefore should await the outcome. It is not shown that Sharp ever knew what character of suit was brought. The evidence shows that Jones might have noticed in a newspaper devoted to court matters a statement of the nature of the suit. Jones had no authority to change the terms of the contract, and could not waive any of Sharp’s rights, or bind him by acquiescence. But if Sharp had been informed of the nature of the suit, and had objected to it, what would have been the effect? His objection could not deprive Lowe and the other defendants of the rights acquired by appellant’s election to affirm its contract with Lowe instead of to disaffirm it. The status of the rights of the parties was fixed when the suit was filed. Would Sharp’s failure to make an unavailing and futile protest make him responsible for and a party to appellant’s mistake? Certainly it would not. At the very utmost it can be said that Sharp acquiesced when appellant assumed that it would be satisfactory for it to perfect the title by January 1, 1910, and the evidence strongly indicates that it was the expectation of all parties that all defects would be removed by December 1, 1909. Such acquiescence would not change the contract from one to be performed on January 1, 1910, to one to be performed within a reasonable time, in view of the nature of the suit brought. It would be indeed a dangerous thing to extend the time to cure defects in a title if it had the effect of giving such time as was reasonably necessary to cure all defects, and to require in this case that Sharp should patiently await the outcome of a contested case in the hope that appellant would win and be able to transform its lien into a title through a foreclosure sale.

Appellant’s other two propositions, when applied to the facts, amount to the contentions: (1) That Sharp cannot - recover because of what he told Brooks on July 30, 1909; and (2) because he failed to pay the note due December 1, 1909. These contentions will be considered together.

Appellant may have had title to the lands when it made the contract with Sharp, but if it did, then by its voluntary act in electing to affirm the contract with Lowe it placed itself in the attitude of a lienholder, and gave Lowe the right to redeem by paying the debt sued for, and the Raywood Company, or any bondholder secured by the deed of trust to the Mechanics’ Trust Company, had a like right. Appellant had brought upon itself a formidable answer and cross-action, and the case bid fair to require a long time for its ultimate decision. On December 1, 1909, appellant was in no position to require specific performance of the contract, nor was it on January 1, 1910, in such position. The contention that Brooks’ testimony to the effect that Lowe promised to make him a re-conveyance on January 1, 1910, affects the question is entirely without merit. Lowe’s reconveyance would not have affected the rights of the Raywood Company, nor those of the bondholders secured by the deed of trust, and there is no testimony that any one agreed to reconvey or release their rights. The evidence also shows that Lowe did not come to see Brooks on January 1st, and offer to reconvey, and in fact he never did reconvéy. Brooks does not claim that he communicated with Lowe between December 30th and January 1st, so Lowe’s failure to appear cannot be attributed to Sharp’s statement on December 30th that he called the trade off. What Sharp said on December 30, 190Q, in no way affected appellant’s failure to get its titles perfected by January 1, 1910. His failure to pay the note on December 1, 1909, ini' no way affected the matter of appellant’s failure to procure title to the lands by January 1, 1910. Appellant, through no fault of Sharp’s, had no title to convey on January 1, 1910, and could not have enforced specific performance of the contract, and therefore cannot retain the earnest money and note on account of the note not having been paid December 1, 1909. Tharp v. Lee, 25 Tex. Civ. App. 439, 62 S. W. 93.

Judge Brooks knew at the time the note matured that it was useless to exact payment of it unless Sharp would take a deed without waiting for the settlement of the Lowe matter, and therefore he did not demand payment thereof at any time, and failed.to mention such note in his letter of December 6th. He waived the nonpayment of the note. At no time did he refuse to perform the contract on account of such nonpayment, nor did he testify that it had anything to do with his arbitrary demands of December 6th.

But let us see what effect the letter of December 6, 1909, by Brooks to Hogg, Gill & Jones, has upon the rights of the parties. Appellant contends that, as it was not accepted promptly, it amounts only to an unaccepted offer, and should be eliminated from the case. While it is possible that Sharp’s acceptance came too late, still the letter is not without its effect, especially when considered in connection with Brooks’ testimony of what occurred between him and Sharp on December 30th. At the time this letter was written Brooks knew that his company could not make title on January 1, 1910, therefore he insists that Sharp must take a deed to land to which the grantor has no title, and pay $40,000, or else the deal is declared off by Brooks, but he is willing that Sharp shall receive his money back. What is the effect of this letter? Does it not simply mean that unless Sharp at once agrees to accept deed to the lands the entire deal is declared off by appellant? No other construction can be placed upon the letter. If Sharp had taken no steps after receipt of that letter, and after January 1st demanded his money, he would be entitled to it, because the letter called for no reply unless Sharp , was willing to at once agree to accept deed I to the lands. Appellant seeks to wipe out this letter, and have the conversation between Brooks and Sharp construed as if no such letter had brought it about. This cannot be done; Sharp’s statement was based upon what had been said in the letter. He asked for his money, and appeared to think he was entitled to demand it. According to Judge Brooks’ testimony, Sharp stated that he did not have the money, and it would be entirely out of the question for him to take the land, but seemed to be under the impression that he had the right to call off the trade, and Brooks testified, further, that he did not want to leave the impression that Sharp based that right upon the fact that he did not have the money. Brooks did not discuss with Sharp the matter of his right to call it off, but must have known that Sharp based it upon the statements made in the letter of December 6th. Knowing this, what did Brooks say? He stated that he was ready to close the deal, but would not return the purchase money. Ready in what way? He knew his company had no title and would have none on January 1st. Then in what way was he ready to close the deal? The answer is obvious. He was ready to close according to the terms of his letter of December 6th. Is there anything to show the contrary? He never said a word to Sharp or Sharp’s attorneys about having any agreement with Lowe for a reconveyance. He said nothing to the effect that he expected to be able to make title .on January 1st. He proposed nq time when he thought he could make title. He did not say that his company was entitled to a reasonable time to carry its suit against Lowe through the courts in order to see whether it could reacquire title to the land. If he intended any other closing of the trade than that indicated in his letter, he failed to make his intention known to Sharp. We fail to see how appellant can base any rights upon the conversation between Judge Brooks and Sharp.

There were no issues to be determined by the jury, and the court was correct in instructing a verdict for appellee.

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


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. TEMPLETON.
    (No. 5449.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 24, 1915.
    Rehearing Denied April 21, 1915.)
    1. Railroads <©=348 — Accident at Crossing —Sufficiency of Evidence — Negligence.
    Evidence, in an action for the death of mules and injuries to a wagon at a railroad crossing, held to show defendant’s negligence either in running its train at a reckless speed or in making but a slight attempt to stop the train when the mules and wagon were seen on the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. <®=348.]

      2. Appeal and Error @=>742 — Proposition —Sufficiency.
    A proposition stating that “the portion of the charge complained of is so indefinite, confusing, and misleading that the jury could not possibly have comprehended the law attempted to be presented therein,” without indicating wherein it was indefinite, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3000; Dec. Dig. @=742.]
    3. Railroads @=351 — Accident at Crossing —Instruction—Issue.
    In an action for damages for the death of mules and injuries to a wagon at defendant’s crossing, wherein the evidence tended to show that the peril of the mules was discovered by defendant’s engineer, who could have stopped the train if he had not been running at a high speed, and that the train had not slackened its speed when it reached the crossing, an instruction on the issue of discovered peril was properly given, and as the engineer could not have prevented the injury, except by stopping the train or slackening its speed, was not objectionable for mentioning those matters.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. @=351.]
    4. Appeal and Error @=882 — Party Entitled to Alleged Error — Invited Eeeoe.
    The defendant could not complain of a charge, if erroneous, where it had requested a charge to the same effect.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. @= 882.]
    5. Trial @=253 — Instruction—Ignoring Issue.
    In an action for damages for the killing of plaintiff’s mules at a crossing, where the plaintiff’s testimony showed that, if the train had slackened its speed, the wagon would not have been struck, a charge ignoring the question of slowing down the train was objectionable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. @=253.]
    6. Trial @=260 — Instructions — Requested Instruction.
    Where the charge presented the issue of contributory negligence, it was not error to refuse a special requested charge thereon.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=260.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by H. W. Templeton against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Paul Kay ser, all of Houston, for appellant'. Love, Channell & Fouts, of Houston, for appellee.
   FLY, C. J.

This is a suit for damages, instituted by appellee, arising out of the death of two mules and injuries to a wagon, inflicted by a moving train of appellant at a crossing on a public road. A trial by jury resulted in a verdict and judgment in favor of appellee for $402.

The grounds of negligence were a failure to give signals of the approach of the train by bell or whistle, excessive speed, and failure to exercise ordinary care to prevent injury to the mules and wagon when their peril was discovered. The evidence indicated that the train was running at a high rate of speed when approaching a town and a public crossing which was in - constant public use. There was evidence tending to show that the bell was not rung nor the whistle sounded when the train approached the crossing.

The first and third assignments of error are disposed of by our conclusions of fact. The evidence showed that the train consisted of three day coaches and three Pullman coaches, about 400 feet in the aggregate in length, and the engine and tender, 60 feet in length, giving a train length of between 450 and 500 feet. The engineer saw the mules on the track when they were about 400 feet from the engine, and, although he swore he did all he could to stop the train, the engine went the train’s length, 450 or 500 feet, beyond the crossing before it was stopped. The engineer swore that the train, when running at a rate of 40 miles an hour, could be stopped in 500 or 600 feet, but on this occasion it went from 900 to 1,000 feet before, it was stopped. This shows that the train must have been moving at a fearful and reckless rate of speed,- or very slight attempt was made to stop the train when the mules and wagon were seen on the track. In either event, appellant was negligent. The track was.level. Timber obstructed the view of drivers of wagons approaching the crossing.

The second assignment of error is too indefinite to be considered. The proposition is fully as indefinite as the assignment. A proposition is obscure that states:

“The portion of the charge complained of is so indefinite, confusing, and misleading that the jury could not possibly have comprehended the law attempted to be presented therein.”

Wherein the charge was “indefinite, confusing and misleading” is not indicated in assignment, proposition, or statement. Similar assignments of error and propositions have been condemned. Railway v. Vollrath, 40 Tex. Civ. App. 46, 89 S. W. 279; Railroad Co. v. Boothe, 126 S. W. 700; Railway v. Averill, 136 S. W. 98.

The fourth assignment of error is overruled. The charge of which complaint is made is not open to the attack made upon it. There was testimony tending to show that the peril of the mules and wagon was discovered by appellant, and the charge properly submitted the issue to the jury. If there had been error in the charge, appellant should not complain, because it requested a charge embodying the very things of which it now complains. Under the facts of this case, however, the charge was correct. Appellant could not have prevented the collision in any way, except by stopping the train or slackening its speed, and there could be no objection to tbe charge mentioning those matters. If there had been any other means of preventing the collision suggested by the evidence, there might be some grounds for objection to the charge. Railway v. Reynolds, 103 Tex. 31, 122 S. W. 531; Railway v. Hodges, 102 Tex. 524, 120 S. W. 848; Railway v. Hodges, 54 Tex. Civ. App. 364, 118 S. W. 767.

The evidence was uncontradicted that the engineer had actual knowledge of the peril of the mules and wagon, and that he could have stopped the train if he had not been running at a fearful rate of speed; and the evidence clearly indicates that the train could have slowed down so as to give the mules an opportunity to leave the track. There is nothing to indicate that the train had slackened its speed when it reached the crossing, for, if the evidence of the engineer is true, he could, at the speed he claims he was making, have stopped the train in the distance passed over after it went by the crossing.

The charge, whose refusal is complained of in the fifth assignment of error, ignored the question of slowing down the train altogether, and was therefore objectionable. The testimony of appellee shows that, if the train had slackened its speed, the wagon would probably have left the track before it was struck. The charge of the court fairly and fully presented the law of discovered peril. The fifth assignment is overruled.

The issue of contributory negligence on the part of the driver of the wagon was clearly presented by the charge of the court, and it was not error to refuse the special charge on that subject requested by appellant. The jury was justified in finding that the driver of the mules was not guilty of contributory negligence.

The judgment is affirmed.
      @=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHOFIELD et al. v. TEXAS BANK & TRUST CO.
    (No. 5450.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 24, 1915.
    Rehearing Denied April 21, 1915.)
    1. Bills and Notes <§=>92 — Check—Consideration.
    Where plaintiff agreed to give and did give her check to defendant bank in satisfaction of its claim against a third person who had presented a forged check purporting to be signed by plaintiff and the bank accepted it in satisfaction, its release of such third person from any claim was a good consideration for the check.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-205, 208-212; Dec. Dig. <§=592.]
    2. Contracts <§=>138 — Executed Illegal Contract — Recovery of Consideration.
    Such contract as between plaintiff and the bank was executed; and, if plaintiff parted with her check in carrying out an illegal agreement to compound the felony, the law would not assist her to recover the amount from the bank.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. <§=>138.]
    3. Trial <§=>388 — Findings of Fact — Statute.
    Rev. St. 1911, arts. 1989, 2075, requiring the judge on request to file findings of fact and conclusions of law within 10 days after adjournment, applies only to trials before the court and not to jury trials.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 908-911, 915; Dec. Dig. <§=>388.)
    4. Appeal and Error <§=>1071 — Harmless Error.
    In a trial by the court, its failure to file the conclusions of fact and law is not reversible error, where no other judgment could have been properly rendered.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <§=> 1071.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by Mrs. Stella Schofield and another against the Texas Bank & Trust Company. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    V. A. Collins, of Beaumont, for appellants. Crook, Lord, Lawhon & Ney, of Beaumont, for appellee.
   MOURSUND, J.

Mrs. Stella Schofield sued the Texas Bank & Trust Company for $150 and recovered a judgment in the justice’s court. An appeal was taken, and before the trial in the county court she married J. W. Hedges, who by agreement was made a party plaintiff. Plaintiffs alleged that Mrs. Schofield was a depositor of said Texas Bank & Trust Company on December 29, 1911; that on said date one Homer Priddy presented to such bank a check for $150, purporting to have been signed by Mrs. Scho-field, which was paid by the bank, although it was not signed by her nor by her authority ; that thereafter she informed defendant of the wrongful payment of the check, and requested defendant to pay her the amount thereof, which it refused to do. Defendant, by its answer, put in issue the allegations to the effect that Mrs. Schofield did not sign the check and did not authorize the signing thereof, and then pleaded that she ratified the act of the person who signed the check; also that she and Priddy came to the bank, and it was then agreed that she would pay the bank the amount of said check, which she did by executing and delivering a check to defendant for such amount, and that Priddy agreed to repay her such amount, and the bank agreed to and did release Prid-dy from his obligation to pay the bank said amount. Judgment was rendered for defendant upon an instructed verdict.

It will be noted that appellants filed no reply to appellee’s answer, wherein the agreement is pleaded of which the check executed and delivered by Mrs. Schofield constituted a part. They did not plead failure of consideration, duress, or that the contract was illegal on the ground that a part of the consideration was an express or implied promise to compound a felony. Nevertheless, we have examined the testimony, and find no merit in the contentions made.

The evidence conclusively shows that Mrs. Schofield agreed to give and did give her check in satisfaction of the claim of the hank against Priddy, and that Priddy agreed to repay her the money within two or three days. The hank accepted her check in satisfaction of its claim against Priddy, thereby releasing him from such claim. Such release was a good consideration for the check, ■because it was a release of a valid claim against him for the amount he obtained by means of the forged check. See note to Bankhead v. Shed, 16 L. R. A. (N. S.) 971.

The evidence fails to show any agreement, express or implied, on the part of the hank to compound a felony. If the evidence could be held sufficient to show an implied agreement, Mrs. Schofield was a party thereto, and voluntarily entered into it, for the benefit of a man to whom she was not bound by ties of relationship, and whose conviction of the felony she secured upon his failure to repay her the money in two days as he had agreed to do. When she delivered the check to the bank, drawn upon it, she was in the same position as if she had drawn out that amount and paid, it in cash. The bank released Priddy, and he became bound to pay her. As between her and the bank, the contract was an executed one, and the law would not assist her to recover money parted with by ’ her in carrying out the illegal contract. Pomeroy’s Equity Jurisprudence, § 402; Medearis v. Granberry, 38 Tex. Civ. App. 187, 84 S. W. 1070; Booker v. Wingo, 29 S. C. 116, 7 S. E. 50.

Appellants assign as error the refusal of the trial judge to file conclusions of fact and law, pursuant to request duly made. Articles 1989 and 2075 relate to trials before the court, and not to jury trials. Jones v. Edwards, 152 S. W. 727; Peoples v. Terry, 43 S. W. 846. But if this had been a trial before the court, his failure to file conclusions of fact and law would not have constituted reversible error, because it is apparent that no other judgment than the one rendered could have properly been rendered. Broderick v. Waco Brick Co., 150 S. W. 600; T. & N. O. Ry. Co. v. Dairy Co., 137 S. W. 137; Emery v. Barfield, 156 S. W. 311.

The judgment is affirmed.
      c^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    HOLLOWAY et al. v. PURINGTON.
    (No. 422.)
    (Court of Civil Appeals of Texas. El Paso.
    March 25, 1915.
    Rehearing Denied April 15, 1915.)
    1. Adverse Possession <§=»43 — Disavowing Title of Owners.
    Where N. took possession of land without being in a fiduciary relation to, or recognizing the title of, plaintiffs, it was not necessary for N., when thereafter recognizing P. as owner, by taking a lease from her, to disavow plaintiffs’ title, in order for P. through N. to hold adversely to plaintiffs.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-224; Dec. Dig. &wkey;> 43.]
    2. Adverse Possession <&wkey;13 — Title Under Five Years’ Statute.
    P., having a recorded tax deed, and five years’ possession through a tenant, all the time paying the taxes, acquired title under the five-year statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. &wkey;>
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by Sam Holloway and others against Mary L. Purington. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Sanford & Wright, of Eagle Pass, and Howell Johnson, of Ft. Stockton, for appellants. W. C. Jackson, of Ft. Stockton, for appellee.
   WALTHALL, J.

This is a suit in trespass to try title to section 1 in block No. 108, S. A. & M. G. Ry. Co., original grantee, in Pecos county, Tex. Plaintiffs’ petition was in the usual form of trespass to try title. Defendant pleaded not guilty, the general denial, and the five-year statute of limitation. The case was tried before the court without a jury. The court rendered judgment for the defendant. At the request of the parties, the trial court made and filed findings of fact, and thereon concluded as a matter of law-:

“That the plaintiffs have title from the sovereignty of the soil, but that their said title is defeated under the facts found, by defendant’s plea of five years’ statute of limitation.”

The appellants make but one assignment of error, as follows:

“The court erred in the first conclusion of law in that holding wherein he holds that plaintiffs’ title is defeated under the five-year statute of limitation.”

The first proposition under the assignment is that:

“Where possession of land is taken by one who claims no right to the land or its use, neither as tenant nor otherwise, his holding is subordinate to the title of the owner, and he cannot at-torn to a stranger, so as to make his possession adverse to the title of the true owner, unless he repudiate such title and bring notice home to him, or his change of attitude be shown by such hostile, open, and notorious possession evidenced by plain and unmistakable circumstances of record or on the ground, that plaintiff ought to have known that the holding had become adverse.”

The facts found by the trial court referring to the defense of limitation are:

“(a) Deed from John Edgar, as tax collector of Pedos county, Tex., to George W. Purington, dated the 17th day of July, 1885, conveying the land herein sued for, reciting that it was sold by him under summary seizure for unpaid taxes of unknown owner for the year 1884. Said deed was duly recorded in tie deed records of Pecos comity, Tex., on the 3d day of September, 1888.
“(b) That the defendant, Mary L. Purington, is the widow of said George W. Purington.
“(c) That the defendant, Mary L: Purington, paid the taxes lipón said land each and every year as they accrued from 1893 to 1913, inclusive.
“(d) Written- lease from Mary L. Purington to J. H. Nations to the land in question, dated January 24,1905, for five years from its date. This lease was never placed of record.
“(e) It was shown by the testimony of H. N. Patterson, manager for the J. H. Nations’ ranch, that in June or July, 1905, J. H. Nations purchased the ranch comprising the pasture (a large one) in which the section of land in controversy was then situated. Nations, within a few days thereafter, went into possession of said ranch. The said pasture was under fence at that time, and the said section remained in said pasture about one year after the date of the purchase (there being a fence along the east line of said section at all times) at which time a division fence was made which threw the said section into a smaller pasture. In the fall of 1906 or spring of 1907, Nations and one Eorbes made a blocking agreement. Under this said agreement, said section was cut off into the Eorbes pasture, and Nations permitted the said Eorbes to use said section in return for the use by Nations of a section of land belonging to Eorbes in the Nations pasture. Nations continued to make the rental payments to defendant during the life of the lease, and did not assign the said lease to Forbes.
“(f) Said section was used continuously by Nations, and afterwards by Eorbes as shown above, for grazing cattle during the life of said lease. Nations claims no right to said land or its use, except under and by virtue of the lease, aforesaid; and the witness Patterson testified upon the trial that Nations claimed no interest or right to use the section prior to the execution of the lease aforesaid. The Eorbes pasture, into which the section of land in question was cut off under the ‘blocking’ agreement, was entirely inclosed and under the control of Eorbes. The fence upon the north line of the Nations pasture is owned by the Elsinore Cattle Company, and a gate in this fence is controlled by said company, and Nations pays said company for the use of said fence.”

The findings of fact by the trial court do not show that Nations took possession or went into possession of the section of land in controversy under any character of recognition or admission of title in appellants by declaration, conduct, or otherwise. Without some recognition or admission of title in appellants, he, or one whom he recognizes as owner, could hold through him adversely to appellants, without any disclaimer or disavowal of title in appellants. Unless there was some fiduciary relation established between Nations and appellants when he took possession, there would be nothing to disclaim or disavow. To invoke the rule claimed by appellants that Nations, or Mrs. Mary L. Purington, whom he afterwards recognized as the owner, could not hold adversely to appellants, unless he (Nations) first repudiate the title under which he first took possession and give notice to appellants of 'his repudiation of their title, would necessarily carry with it the idea that he, in taking possession had recognized the title to be in appellant and was holding in subordination to such title. But the facts do not show such condition. The facts show that Nations never at any time recognized or admitted title in any other person or sustained any fiduciary relations of any character whatever to any person1 other than appellee, and that he did admit title in her and held possession for her as tenant for five consecutive years before the filing of the suit. The facts found by the court show that, before Nations took a lease from appellee, he “purchased the j-anch comprising the pasture (a large one) in which the section of lands in controversy ■ was then situated”; but the facts do not show that the purchase of the pasture was from appellants or from any one in privity with them, so as to show a recognition of their title in the purchase of the pasture.

The facts found by the trial court are sufficient to establish title in appellee to the land in controversy under the five-year statute of limitation. The assignment is overruled.

We think it unnecessary to pass upon ap-pellee’s cross-assignment.

Finding no error, the case is affirmed.
      ^=?For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


text:
    HALBERT v. TOYAH VALLEY BANK.
    (No. 416.)
    (Court of Civil Appeals of Texas. El Paso.
    March 18, 1915.
    Rehearing Denied April 15, 1915.)
    Appeal and Error <&wkey;1135 — Affirmance — Failure to Snow Error.
    Where the appellant files no brief and there is no error apparent on the face of the record and the judgment is one which the court could legally render, the judgment will be affirmed without consideration of the assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. &wkey;> 1135.]
    Appeal from Reeves County Court; H. N. McKellar, Judge.
    Action by Toyah Valley Bank, a copartnership, against W. C. Halbert. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    W. C. Halbert, in pro. per., of Saragosa, Harry MacTier, of Pecos, for appellee.
   WALTHALL, J.

In this case, the plaintiffs R. P. Head, R. H. King, W. B. Vanderen, E. P. Stuckler, J. E. Meier, and J. H. Wolverton, representing themselves as copartners in trade and doing business under the firm name and style of Toyah Valley Bank, brought this suit in the county court of Reeves county, against the appellant, W. C. Halbert, on a past-due promissory note in the sum of $642.45, and admitting two payments thereon aggregating $325, and alleging that appellant, to secure said note, had executed and delivered to them a chattel mortgage on certain personal property described. Plaintiffs prayed judgment for tbe amount due, interest and attorney’s fees provided for in tbe note, and foreclosure of tbe chattel mortgage lien, and general and special relief. Appellant answered by general and special exception, and general denial, and filed and presented to tbe court a motion for a continuance. Tbe court overruled tbe motion to continue, made no order on the exceptions, and entered judgment for plaintiffs against defendant for the balance due on tbe note, interest, attorney’s fees and costs, and ordered a foreclosure of tbe chattel mortgage lien.

No briefs have been filed, and therefore tbe assignments of error as they appear in tbe record cannot be considered. There is no error of law apparent upon tbe record. Tbe judgment is one that could legally have been rendered in tbe lower court, and tbe case is affirmed.
      <§s»For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. DAVIS.
    (No. 5447.)
    (Court of Civil Appeals of Texas. Austin.
    March 31, 1915.)
    1. Appeal and Error <&wkey;1052 — Harmless Error — Admission of Evidence.
    Defendant may not complain of admission of plaintiff’s testimony of the cost of an article, claimed to have been injured, the verdict stating nothing was allowed on account of its injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4171-4177; Dec. Dig. <&wkey; 1052.]
    2. Evidence <&wkey;472 — Injury of Household Furniture — Damages.
    Plaintiff’s wife, in an action for injury of their household furniture, after a showing that there was no market price for any of it, could testify as to what she regarded its value to herself and husband before its injury, and how much, in her judgment, it had been damaged.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186, 2195, 2248; Dec. Dig. &wkey; 472.]
    3. Evidence <&wkey;471 — Opinions—Conclusion.
    It was not error to permit witnesses, in an action for injury to furniture, who described its condition and appearance, in doing so, to state, in effect, that they considered it ruined.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. &wkey;471.]
    Appeal from Falls County Court; W. E. Hunnecutt, Judge.
    Action by A. H. Davis against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Neff & Taylor, of Waco, for appellant. E. W. Bounds, of Marlin, for appellee.
   KEY, C. J.

Appellee recovered a judgment for $250 against appellant for damages caused to a shipment of household furniture, etc. The injury was caused by excessive leaks in tbe roof of the car in which the shipment was made. Appellant’s brief contains but four assignments of error, all of which complain of the admission of certain testimony. The questions involved have been duly considered, and our conclusion is that all the assignments should be overruled. One of them complains upon tbe theory that tbe plaintiff’s wife was permitted to testify as to the cost of tbe household goods. Tbe record does not sustain that contention. She testified to tbe original cost of a buggy, which tbe proof showed did not belong to tbe plaintiff, and tbe jury stated in their verdict that nothing was allowed on account of injury to tbe buggy. It was shown that there was no market price for any of the property, and the court did not err in permitting Mrs. Davis to testify, in effect, as to what she regarded its value to herself and her husband before it was injured, and how much, in her judgment, it had been damaged by getting wet.

It is also complained because the court permitted witnesses to state that, in their opinion, the property was ruined. Each of the witnesses referred to assisted in unloading it, described its condition and appearance, and in doing so stated, in effect, that they considered it ruined. We hold that no error was committed in that regard. The other objections to the testimony are of a similar nature, and are likewise overruled.

No error has been shown, and the judgment is affirmed.

Affirmed.


author: RICE, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McDERMITT et al.
    (No. 5442.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1915.
    Rehearing Denied March 24, 1915.)
    1. Pleading <&wkey;248 — Amending Petition — Changing Course of Action.
    Plaintiffs may amend their petition to correctly describe the block of land for .injury to which they sue, though they set up a new cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 686, 687, 689-706, 708% > 709; Dec. Dig. &wkey;248.]
    2. Pleading <&wkey;335 — Duty of Defendant to Take Notice — Amendment in Open Court.
    Amendment of petition being filed with leave in open court, after defendant has answered, it has constructive notice thereof when it is filed.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 1015, 1016; Dec. Dig. <S&wkey;335.]
    3. Continuance &wkey;>37 — Amendment of Petition — Application.
    To justify reversal for refusal of motion for continuance based on surprise in the filing of an amended petition, it must appear that defendant had a meritorious defense, which by continuance could be made to appear.
    [Ed. Note. — For other cases, see Continuance, Cent Dig. §§ 117-121, 127; Dec. Dig. &wkey;37.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.

      Action by R. O. McDermitt and another against the St. Louis Southwestern Railway Company of Texas and another. From a Judgment for plaintiffs, defendant named appeals.
    Affirmed.
    Marshall Ferguson, of Stephenville, for appellant. Eidson & Eidson, of Hamilton, for appellees.
   RICE, J.

This suit was brought by R. O. McDermitt and Lena Livingston, a feme sole, against the Stephenville North & South Texas Railway Company and the St. Louis Southwestern Railway Company of Texas, to recover damages to a certain block of land belonging to appellees situated in the town of Hamilton, alleging that said defendants cut a deep, wide ditch along the whole north line of said block so as to materially affect the right of ingress and egress thereto, and so close to the property line as to deprive them of the right to a sidewalk along said line, whereby the value of said block was diminished to the extent of $500.

Appellant, besides a specific denial of each allegation of plaintiffs’ petition, except as to said property’s being located within the corporate limits of the city of Hamilton (of which fact it claimed to have no knowledge upon which to found a belief in regard thereto), pleaded not guilty of the wrongs and trespasses alleged against it.

A jury trial resulted in a verdict and judgment for plaintiffs against appellant, but the court instructed a verdict in behalf of the Stephenville North & South Texas Railway Company, from which judgment appellant appeals, assigning error on the part of the court: First, in overruling its motion to strike out plaintiff’s amended petition; and, second, in overruling appellant’s motion to postpone or continue. It appears that ap-pellees in their original petition misdescribed' their block of land, stating that it began 60 feet north 71 west from the northwest corner of block 2 of the Rice addition to the town of Hamilton; whereas, in truth and in fact, it began 30 feet south 19 west from the southwest corner of block No. 1 of the Wagner addition to said town, and was in a different part of the town. On the 24th of April, 1914, five days before the trial, but ten days after defendant had filed its answer, appel-lees, in open court, obtained leave to file, and did file, their amended petition, correcting their-original petition in this respect so as to accurately describe the block in question. When the case was called for trial appellant made its motion to strike out this amendment, because it set up a new cause of action, claiming surprise and also filed its motion to postpone or continue for the same reason, both of which motions were overruled by the court, to which appellant exl cepted. The court, in explaining his ruling on the motion to postpone or continue, stated that it appeared from the testimony on the hearing thereof that this was the only property owned by appellees in the town of Hamilton, and that appellant knew its location, because its agents had some time before talked with appellees about the block, and had previously had surveying done thereon. ■ It was nowhere made to appear in said motion that the appellant could have shown that the block in question did not, in fact, belong to appellees; nor does it appear that any injury was done it by overruling said motion.

There is no question but what the appellees had the right to amend their petition, in order to correctly describe the block, notwithstanding the fact that it may have set up a new cause of action. O^he amendment having been filed with leave in open court after appellant had answered, it was charged with a knowledge of its contents from said time, and could not claim surprise, and it is immaterial that it had no actual notice thereof until the night of the 28th of April, it having had constructive notice when the amendment was, in fact, filed. See Tyson v. Bank & Trust Co., 154 S. W. 1055, and cases therein cited.

The court did not err in overruling the motion for continuance, because it does not appear from the record that appellant was injured by reason thereof. The motion was not a statutory, but an equitable, one, and it rested within the discretion of the court to grant or refuse it, as it might see proper. This discretion is not shown to have been abused. Notwithstanding the amendment, it does not appear from the record that appellant could have shown that the block in question did not belong to the appellees. This seems to have been the only question involved in its motion. Where an application to continue is based on the ground of surprise in the filing of an amended petition, it must appear, in order to justify a reversal, that appellant had a meritorious defense, and that by a postponement or continuance of the cause such defense could be made to appear. See Western Union Tel. Co. v. Robertson Bros., 133 S. W. 454.

Finding no reversible error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.
      <=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CRASS v. ADAMS.
    (No. 5470.)
    (Court of Civil Appeals of Texas. Austin.
    March 31, 1915.)
    1. Evidence &wkey;317 — Hearsay — Conversations Between Third Persons.
    In a broker’s action for commissions on a sale of land to B. paid for in part by the conveyance of other land, where there was a dispute as to the value at which such land was received by defendant, it was error to permit an attorney to testify that B. told him that his land went into the transaction at $11,000, though it was recited in the deed that it went in for $18,000, and. that the witness told B. that such recitals amounted to nothing,, that the books were full of such cases, and that he would hate to be on the broker’s cost bond, as such testimony was hearsay and res inter alios acta, conversations between witnesses and third persons, not in the presence of the party against whom they are offered, not being admissible in evidence; and, moreover, defendant was thereby allowed to place before the jury such attorney’s legal opinion on the subject at issue.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. <&wkey;317.]
    2. Evidence &wkey;>113 — Market Value — Offers.
    In a broker’s action for commissions on a sale of land paid for in part by a conveyance of other land, in which there was a dispute as to the value at which such land was received, it was error to permit defendant to testify that he had been offered a specified price therefor, as market value cannot be shown by an isolated offer.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. &wkey;113.]
    3. Brokers <&wkey;88 — Actions for Commissions —Instructions.
    In a broker’s action for commissions on a sale of land in which he alleged that he was to have all received in excess of $20,000, and that the land was sold for $27j000, where the main charge permitted a recovery only in case the jury believed that defendant received $27,000 for the property, an instruction authorizing a recovery if he received $20,000 or .more in money and property should have been given.
    [Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. &wkey;88.]
    4. Trial &wkey;>250 — Instructions—Conformity to Pleadings and Proof.
    A special charge predicated on an issue raised by neither the pleading nor the proof was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. &wkey;250.]
    5. Trial <&wkey;194—Instructions—Weight of Evidence.
    While the consideration mentioned in a deed is not conclusive and may be inquired into, an instruction on this point should be omitted or so phrased as not to be on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <S&wkey;194.]
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Action by J. C. Crass against Flim Adams. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Mears & Watkins, of Gatesville, for appellant. J. W. Stinnett, of Gatesville, for appellee.
   RICE, J.

Appellant brought this suit against appellee to recover commissions for the sale of certain real estate, alleging that appellee listed with him for sale three tracts of land, containing 1,136 acres, situated in Coryell county, agreeing to pay as commissions fpr his services, in the event of a sale, all in excess of $20,000 which he might obtain therefor; that subsequent thereto he informed appellee that he could sell said land to one M. Boyd for $27,000, provided he would take certain property of Boyd’s in the trade for $18,000, consisting of the Cottage Hotel in Gatesville, and a farm of 270 acres on Henson creek, which appellee agreed to do, provided Boyd would assume the payment of a certain note owing by appellee on his land, amounting to $5,600, and pay the balance of said sum in cash; that Boyd consented thereto, and deeds were thereafter duly executed by each in conformity therewith, by which appellee conveyed his land to Boyd, and Boyd conveyed his to appellee.

After a general demurrer, special exceptions, a general denial, and numerous special denials, appellee, by special answer, denied that his property was ever sold for $27,000, or that he ever agreed to accept the land of Boyd in the trade for $18,000, but, on the contrary, he alleges the fact to be that he made the trade himself with Boyd; that his (appellee’s) property was only taken in said trade for $20,000, and that he took Boyd’s property for $11,000, and the latter assumed the note for $5,600, and paid the balance, to wit, $3,400, in cash; that such trade would not have been consummated but for appellant’s promise that, in the event of appellee’s purchasing said property from Boyd, he (appellant) would take the hotel off of his hands at $6,000; that appellant did not represent him in said trade, but represented Boyd, wherefore he did not owe appellant anything.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted. Evidence was offered tending to sustain the contention of each party, and the issue was closely drawn between them.

At the trial, and after appellant had rested without introducing Boyd, appellee called R. F. Moore, and offered to show by him what Boyd had said to him about the trade between himself and appellant, to which appellant objected. The objection was overruled, and Moore testified that he had a conversation with Boyd in reference to the transaction in which Boyd told the witness that, in the trade between Adams and himself, the hotel went in at $6,000 and the farm at $5,-000, making $11,000 in all. After appellee had rested, appellant called Boyd in rebuttal, who testified that he had no such conversation with Moore as testified to by him; that he did not tell him that his property went into this deal at $11,000. Thereafter appel-lee, over'appellant’s objection, was permitted to recall R. F. Moore, and the bill shows that he was asked by his counsel to detail the conversation between himself and Boyd, to which appellant objected for the reason that it was not shown that the appellant was present, or had any knowledge of such conversation, if any, and same would not bind him and was prejudicial and placed him in a bad attitude and embarrassed manner before tbe jury. The court overruled said objection, and the witness answered, testifying that Boyd had told him that appellant had sued appellee for $7,000, and that he (Boyd) thought that appellant had a good cause of action, for the reason that the deeds recited that the Adams property was 'put in for $27,000, and that the Boyd property was put in for $18,-000, but in fact the property conveyed to Adams by Boyd only went in for $11,000; that he (Moore) then made the remark that such recitals did not amount to anything, and the books were full of it (meaning law books); further stated that he (Moore) made the remark to Boyd that he would hate to be on .the plaintiff’s cost bond. Thereupon appellant further objected on the ground that that part of the witness’ testimony about the books being full of such cases is contrary to the ■contention of plaintiff and is an opinion of .the witness, and that that portion of his testimony that he would hate to be on plaintiff’s cost bond was prejudicial and injurious to plaintiff, and was likewise hearsay and not .germane to the question asked nor the matter under investigation, and also moved the court to exclude said testimony from the jury for .the reasons stated. His motion and objections were all overruled, to which he excepted and reserved his bill. This furnishes the basis for the third assignment. The court ■erred in overruling these objections and permitting this testimony to go to the jury. It was hearsay and res inter alios acta. Conversations between witnesses and third pei’-•sons, not in the presence of the party against whom offered, are not admissible in evidence. See Rankin v. Bell, 85 Tex. 32, 19 S. W. 875; Tucker v. Hamlin, 60 Tex. 176; Book 3, Rose’s Texas Notes, 321; 1 Greenleaf on Evid. § 99. See, also, 17 Cyc. p. 274, subject “Res Inter Alios.” It was stated in argument on the hearing that the witness Moore was a lawyer, and he was thereby allowed to give, and did give, his legal opinion as to the subject at issue, which must have been damaging to appellant. For the reasons stated, 'we sustain this assignment.

We overrule appellant’s fifth assignment, urging that the court erred in permitting ap-pellee to testify as to the market value of the Henson creek land, because we think he had sufficient knowledge of the matter to give his opinion concerning same.

It is not competent to show market value by an isolated offer, and the court erred in permitting appellee, over appellant’s objection, to testify that he had been offered $5,-000 for the Henson creek farm, for which reason we sustain the sixth assignment complaining of this matter.

The appellant requested, and the court refused to give, his special charge No. 1, which, in effect, told the jury that if they should believe that appellee contracted with appellant to give him all over $20,000 that he should sell his property for, and should further find from the evidence that appellant sold appellee’s property to Boyd, and that appellee accepted as part payment the Henson creek property and the Cottage Hotel property and the remainder of said consideration in money and notes, and should further find that the property, money, and notes accepted by appellee, if he did so, amounted to more than $20,000, then appellant would be entitled to recover the excess thereof; .and in determining this issue they might take into consideration the market value of said Henson creek and Cottage Hotel property, if the same had a market value, but, if said property had no market value, then its reasonable or true value, together with $9,000 in money and notes; and, if the property, money, and notes amounted to more than $20,-000, then they should find for plaintiff for the excess thereof, -if any, not to exceed $7,-000. The main charge permitted appellant to recover only in the event the jury should believe that appellee received the sum of $27,-000 for his property, whereas appellant was entitled to recover the excess, if any, above $20,000, which appellee might receive therefor, provided it be conceded that he had alleged that the consideration received by ap-pellee was in excess of $20,000, for which reason we sustain the seventh assignment of error.

We overrule appellant’s eighth assignment, because neither the pleading nor the proof raised the issue upon which the special charge referred to in said assignment was predicated.

While it is the law that the consideration mentioned in the deed may be inquired into and is not conclusive, in view of another trial we would suggest that the charge upon this subject be entirely omitted, or, if given, that it be so phrased as not to be subject to the criticism of being upon the weight of the evidence.

For the errors pointed out, the judgment of the court below is reversed and tie cause remanded.

Reversed and remanded.
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author: PHILLIPS, J.

text:
    CLEMENT et al. v. CITY OF PARIS et al.
    (No. 2511.)
    (Supreme Court of Texas.
    April 21, 1915.)
    1. Dedication <&wkey;61 — Public Squaees — Use of Property.
    An owner conveyed land to commissioners empowered by statute to lay out a town and contract for public buildings. The town-site plat showed a public square dedicated for a county courthouse. Lots were sold with reference to the location and public use of the square. Held, that the square was dedicated to the particular public use, and owners of abutting lots, purchasing on the faith of the dedication, could prevent the use of the square for a different public use to their injury.
    [Ed, Note. — For other cases, see Dedication, Cent. Dig. §§ 116, 120; Dec. Dig. <@=»61.]
    2. Dedication <&wkey;61 — Public Squares — Use of Peopebty.
    Land dedicated for county courthouse purposes cannot, as against owners of land abutting on the courthouse square and purchasing on the faith of the dedication, be used for a public comfort station.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 116, 120; Dec. Dig. &wkey;61.]
    Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by R. M. Clement and others against the city of Paris and others. There was a judgment of dismissal and an appeal by plaintiffs to the Court of Civil Appeals, and it certifies the case to the Supreme Court.
    Questions answered.
    See, also, 154 S. W. 624.
    Moore & Paris, Burdett & Connor, and Long & Wortham, all of Paris, for appellants. Wright & Patriéis, of Paris, for ap-pellees.
   PHILLIPS, J.

The case concerns the power of the city of Paris, as a municipality, to make a certain use of the original public square in the city, the subject of a former similar controversy passed upon by this court a number of years ago. Lamar County v. Clements, 49 Tex. 347.

Three questions are propounded for our determination by the honorable Court of Civil Appeals with respect to its holding upon the action of the trial court in sustaining the city’s exception to the plaintiffs’ petition, answers to the second and third questions being requested only in the event of our holding that the Court of Civil Appeals erred in its disposition of the first.

The certificate, as it relates to the first question, is as follows:

“R. M. Clement and others as owners of lots abutting on the streets that surround and front on the ‘public square’ of the city of Paris, Tex., and as citizens of Paris, instituted this suit in the district court of Lamar county, seeking to enjoin the city of Paris, its mayor and members of the city council, from erecting upon the public square of that city certain buildings, structures, and obstructions fully set out and described in the original petition. Among other defenses interposed by the defendants in the trial court were certain exceptions, general in theh: nature, but directed to distinct portions of the plaintiffs’ petition. Some of these exceptions were sustained by the trial court, and upon refusal of the plaintiffs to amend the court dismissed the suit, and from the judgment of dismissal this suit is prosecuted. At a former day of this term the appeal was considered and the cause reversed and remanded because a majority of the court were of the opinion that the trial court erred in sustaining the exceptions to the first count in the petition. In due time a motion for rehearing was filed, and the cause is now pending before us on that motion. Entertaining some doubts as to the correctness of our holding in the original disposition of the case, we deem it now advisable to certify to your honors the questions which will be hereinafter specially set out. We deem it advisable, however, in this connection to expressly state that we are not confining ourselves merely to certifying the questions about which members of this court have disagreed; but we desire the opinion of your honors as to the correctness of our holdings upon those questions about which there is no disagreement but concerning which we now have some doubts. We herewith copy in full the original petition and its exhibits in the latter portion of this statement.
“The plaintiffs’ original petition contained in its introductory part the following language:
‘They allege that on, to wit, about the - day of -, 1841, George W. Wright, who then resided in Lamar county, Tex., but who is now deceased, being then the owner of the tract of 50 acres of land below mentioned, and being desirous of securing on his land the county site of Lamar county, where it now is, did donate to Lamar county 50 acres of land for that purpose, being a part of the Larkin Rattan head-right, with the then understanding and agreement with the county commissioners acting for and on behalf of Lamar county that said donation should be accepted for the purpose aforesaid, subject to the condition that an open square should be laid of in the center of said SO acres and dedicated for the use of the county and ■ the public for the sole purpose of a county courthouse and an open space around it forever.’
“The following exception or special demurrer was interposed and sustained by the court, to wit: ‘To all that portion of plaintiffs’ petition beginning with the word “with” immediately following the words “Larkin Rattan headright” and ending with the word “forever” (which is quoted above and in italics), and all other portions of the petition seeking to ingraft conditions and limitations not expressed in the bond for title and deed of G. W. Wright, for the following reasons: The same is contradicted by the terms of the bond for title and deed from G. W. Wright attached to the petition and marked “Exhibits B” and “C,” and is an attempt to vary the terms of those instruments and engraft conditions on same without showing any facts authorizing same, and that any such agreement or contract or exception between G. W. Wright and the commissioners was wholly null and void because beyond the powers of the commissioners to make same.’
“This court treated that exception as being a general' demurrer to the first count of the appellants’ original petition, in which an express dedication was pleaded and relied on, and a majority of the court held that the trial court •erred in sustaining that exception or special demurrer.”

The first question propounded by the Court of Civil Appeals in respect to this ruling is: “Did the majority of the court err in so holding?”

As is therein stated, the certificate incorporates by reference the plaintiffs’ petition and its exhibits. Because of the length of the petition, we will here state the substance of its allegations.

The first count in the petition presents the claim that the lots of the plaintiffs abutting upon the public square, with the buildings thereon, have a special or additional value because of the nature and use of the square and their situation upon it; and that the plaintiffs and their privies and estate were induced to and did pay additional prices for the lots üpon that account and because of the use to which they allege the square had been permanently dedicated at the time of their purchase. In relation to this dedication, following the allegation quoted in the certificate, it is pleaded: That George W. Wright on August 24, 1841, after his donation of the 50-acre tract for the purposes of the county site, executed to the commissioners his bond for title, and that they accepted the trust; and thereafter Wright executed and delivered to them a deed to the 50-acre tract. That the commissioners thereupon laid off the tract into lots, blocks, alleys, and a square, in accordance with the terms of the donation and dedication, naming the town “Paris,” which became and is the county site of the county; a copy of the plat of the original county site, to the extent that it affects the property of the plaintiffs, being made a part of the petition and showing particularly the square referred' to and the property of the plaintiffs fronting up"on it. That across the square shown on the original plat were written the words, “Public Square,” but it was at the time understood and agreed between Wright and the commissioners that the square so marked was to he used for the purpose of a county courthouse and for an open space for free ingress and egress of the public and for convenience of traffic and for no other purpose. That after the 50-acre tract was so laid off, Lamar county, by its commissioners, advertised the lots fronting on the square for public sale, and they were publicly sold for the use of the county for the purpose of raising funds with which to erect a courthouse on the square. That at and before the sale the square was laid off for the benefit of the public for courthouse purposes, and was so dedicated and intended to he so irrevocably dedicated. That the square was laid off 216 feet square, with a street 60 feet in width on each side of it. That the commissioners announced that it was laid off for the benefit of the public for courthouse purposes and was so dedicated, at and before the time of the sale, and at that time exhibited the above-mentioned plat showing the square and its surroundings, which had been duly recorded in the deed records of the county; and the purchasers of the lots abuttiug upon the square bought them with reference to the plat and on the faith of the square being used alone for courthouse purposes. That pursuant to such dedication the commissioners caused to be erected upon the square a brick courthouse in its center, where it remained until the year 1877, when it was burned. That the courthouse was used for that purpose! until the year 1874, when the county acquired a lot elsewhere upon which it erected a new courthouse now in use. That ever since the year 1844 the public has had free access over and across the square, and up to 1874 and 1877 for the use of the county for courthouse purposes; and that the plaintiffs hold the title to their lots fronting on the square under the original sale made by the commissioners of the county, above recited. That ever since the fire, in 1877, the square has been left open with free access to all parts of it, and has been used by the public on which to ride and drive, and for the sale of farm and other products, and for trade and traffic generally. That the improvements upon the lots of plaintiffs consist of costly buildings, induced by the dedication and use of the square and the peculiar advantages which the property possesses on that account.

The use of the square, which it was the purpose of the suit to enjoin, was its being made the site of a building, called a “Public Comfort Station,” proposed by the city authorities to be erected in its center, and to occupy a circular space not exceeding 100 feet in diameter. The petition sets out the ordinance of the city council authorizing the erection of this building, a permanent brick structure, to cost not exceeding $10,000, with an exhibit hall on the first floor to be devoted to the exhibition of farm and other products of the county, and, with other parts of the building, for the location of memorial tablets, busts, and historical relics; the lower floor also to contain toilet rooms and lavatories for whites and blacks. The second floor, it is provided by the proposed ordinance, shall contain a ladies’ parlor, ladies’ rest room with dressing room and toilet room, two sick chambers, also a gentlemen’s waiting room and combination room, commodes, lavatories, etc.; provision being also made in the ordinance for the maintenance and administration of the building.

In this connection it is alleged that the city authorities intend to build and maintain walks around the proposed building, with flower beds along the walks, and with a curb, fence, or railing around the grounds, preventing the passage of vehicles, and that such use will constitute an appropriation of the square to a use altogether inconsistent with that to which it was dedicated and has been used by the public for more than SO years, with the knowledge and consent of the County, resulting in a continuous exclusion of the public from the enjoyment of the square for the purposes to which it was originally dedicated, and consequent injury to the plaintiffs and their property.

George W. Wright’s bond for title simply describes the 50-acre tract by .metes and bounds, and as being tbe tract on which, the commissioners in whose favor the bond is made had laid off “a town under the name of Paris.” His deed describes the tract in the same way. It contains, however, a reservation to the grantor of certain lots “as designated on the plat of said Town of Paris.” The copy of the original plat of the town, referred to in the petition as having been made by the original commissioners, attached to the petition, shows the space of ground, 216 feet square, bounded by four streets, with abutting blocks and lots, and designated on the map as “Public Square.”

The petition is clearly sufficient, in our opinion, as a pleading that at the inception of the town of Paris the square in question was dedicated to a particular public use, namely, the public square of the county site of the county, to serve as the location for the county courthouse and as a public square in that' connection. The original and supplementary acts of the Congress of the republic in that relation empowered the commissioners therein charged with the duties conferred with respect to the location of the county site of Lamar county, “to lay out a town, sell lots, contract for public buildings, and do all things necessary for the promotion of the interests of the county.” This invested the commissioners with the authority to select and designate a site for the courthouse, and for the public square then and now commonly used in this state in that connection, and to dedicate the plot of ground so selected to that particular use, as an essential part of the duties imposed upon them by the acts. The petition charges that the commissioners did so select and dedicate this particular square for that purpose. Entirely apart from the acts of Wright, the donor of the tract of land for the county site, his donation, Ms bond for title, and his deed, it sufficiently avers such a dedication by the commissioners themselves, in their agreement with Wright to that effect, their preparation and record of the original town plat with the square designated thereon, their public announcement of its purpose and their sales of lots on the faith of such location and public use — all of which could be competently shown in evidence as constituting the dedication pleaded.

If the square was thus dedicated to such particular public use, it is impressed with a character of public trust in the hands of the city, which holdsi the legal title; and it is beyond the power of the city officials to appropriate it for a different public use entirely inconsistent with the use originally intended, to the injury of those who have purchased abutting lots upon the faith of such dedication. It may be used only in ways that are kindred to those which would obtain under such a dedication at that time. Lamar County v. Clements, 49 Tex. 347; Seguin v. Ireland, 58 Tex. 183; County of Harris v. Taylor, 58 Tex. 690; City of Victoria v. Victoria County, 100 Tex. 438, 101 S. W. 190; City of Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008; Codman v. Crocker, 203 Mass. 146, 80 N. E. 177, 25 L. R. A. (N. S.) 980.

The question then arises: Is the use, which it is pleaded the city officials propose to make of the square, inconsistent with that to which it was originally dedicated? We think it is. It is well known that an open space of ground of this kind largely takes its character from the structures upon it and the uses to which the latter are put. The purposes of a public building of a prominent nature in the center of such a square come in time to dominate the uses of the square itself. There is no kinship between a county courthouse and a public comfort station. And in our judgment a square serving as the site and in part the grounds for such a structure would in actual experience soon lose its character and use as an open and public place devoted to public resort, trade and traffic, common, as is generally known, to the court house squares of the state, and other like places impressed with a similar use.

The first question is accordingly answered in the negative, which, under the certificate, renders the determination of the other questions unnecessary.

BROWN, O. J., having been of counsel in Lamar County v. Clements, did not sit in the case.
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