author: MOURSUND, J.

text:
    LOE et al. v. BELLGARDT et al.
    (No. 5903.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 31, 1917.)
    1. Injunction <@^118(1) — Construction—INFERENCES AGAINST PLEADER — ACTION — Pleading.
    In a suit for an injunction, if the material elements which entitle plaintiff to relief are not alleged with sufficient certainty to negative reasonable inference from the facts stated, such inference will be taken as true.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-232, 234.]
    2. Homestead <®^177(1) — Consent to Release oe Lien on Land.
    A wife, having sold part of a tract of land subject to a lien, and consented to a release of the lien on that part, is estopped from asserting against the holder of the lien the right to have the land sold made subject to lien before the homestead.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 344, 347.]
    3. Marshaling Assets and Securities 11 — Pleading — Sufficiency — Allegation of Value — Statute.
    Under Rev. St. 1911, art. 4647, providing that no injunction shall be granted to stay a judgment except to the extent complainant shall in his petition show himself entitled to relief, failure to allege value, in a petition for an injunction, of a lot which it is alleged should be subject to payment of a lien before the homestead, gives the court no basis upon which to make a decree.
    [Ud. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 14.]
    Appeal from District Court, Kendall County; R. H. Burney, Judge.
    Action for an injunction by Ellen McGoff Loe and husband against Louisa Bellgardt and another. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Lipscomb & Lipscomb, of San Antonio, for appellants.
   MOURSUND, J.

This is an appeal from an order refusing to grant a temporary injunction. The facts, briefly stated, are as follows: On November 7, 1913, J. P. and Carrie Harkreader conveyed to plaintiff C. J. Loe lot No. 34 in Boerne, and as part of the consideration Loe executed two notes, one for $1,950 and the other for $1,400, due two and three years after date. A vendor’s lien was retained. Plaintiffs C. J. Loe and Ellen McGoff Loe, his wife, immediately subdivided the property into ten lots and a street and alley. Lot No. 1 was separated from the remainder by the street. They es- ' tablished their home on lot 1, and have continuously resided thereon ever since. After making their home on lot 1, the other lots, representing in quantity and value more than half of the entire property, were released from the payment of the vendor’s lien notes by defendants, or those under whom defendants claim, the holders of said notes, and no part of the value of such lots or the proceeds of the sale of same was applied to the payment of or credited upon the notes, and all of said lots were subsequently sold, Mrs. Loe joining in all deeds except one. Plaintiffs further alleged that no part of the consideration was received or appropriated by Mrs. Loe. Defendants Louisa and George Bell-gardt acquired the notes with full notice of said facts alleged, and sued C. J. Loe and obtained judgment against him for the amount due on said notes and for foreclosure of the vendor’s lien on said lot No. 1, to which suit Mrs. Loe was not a party. An order of sale has been issued on said judgment, and a sale of lot No. 1 has been advertised to take place on the first Tuesday in April, 1917. It was alleged that, unless restrained, the sheriff will make such sale, and place the purchaser in possession of the property. It was further alleged that the lots other than No. 1 have always been, since the establishment of plaintiff’s home on lot No. 1, of the value of at least $4,400; that lot No. 1 is only liable for its proportionate part of the debt, and that until it shall have been determined that the remainder of said lot No. 34, so subdivided as aforesaid, either was of no value whatever, or would not, at forced sale, bring any part of the amount due upon such notes, and that the necessary effect of releasing the vendor’s lien retained against all of said property to secure the payment of such purchase-money notes as to the remainder of said lot No. 34, and foreclosing the same as against said lot No. 1, of said subdivision of said lot No. 34, alone, is to create and impose upon said lot No. 1 an additional burden and lien, contrary to the Constitution and laws of the state of Texas. Plaintiff Ellen McGoff Loe averred her readiness to do what the court may determine to be just and right if it should be held that lot No. 1 was liable for any part of the unpaid purchase money. The prayer was that the defendants and the sheriff be perpetually enjoined from selling the property under said order of sale, and that a temporary injunction be issued pending the suit. No answer was filed, so the case comes to us upon the allegations of the petition alone.

The right of Ellen McGoff Loe and her husband to require all property subject to the vendor’s lien, other than the homestead, to be sold before the homestead is sold, rests upon the equitable doctrine of marshaling assets, and upon that alone. In this case it would not subserve the purposes of equity to permit Mrs. Loe to invoke that doctrine, for she has consented to the release of the property other than the homestead, and if it were material, we would be required under the rule relating to pleadings in injunction cases to take it for granted that such consent was evidenced by an instrument privily acknowledged, for appellants have failed to negative such state of affairs. Schlinke v. De Witt County, 145 S. W. 660, and cases cited. Having consented to the release of the lien on certain property, it would be inequitable for her now to be permitted to object to the sale of the remainder to satisfy the lien, and to demand that the value of the released portion be deducted from the debt before a sale is made. In Speer’s Law of Marital Sights we find the following rule stated:

“But in matters not controlled by the statute of conveyances, this rule [meaning rule of immunity from estoppel] has no application, and the rules of equitable estoppel apply to her conduct. So, in pursuance of sales of her personal property, her partition deeds, agreements concerning her boundaries, condemnation proceedings, and the like, by acquiescence, accepting benefits and in similar ways, she may estop herself.” San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 477, 44 S. W. 476; McKinney v. Matthews (Sup.) 6 S. W. 793; Cravens v. Booth, 8 Tex. 243. 58 Am. Dec. 112; Jones Estate v. Neal, 44 Tex. Civ. App. 412, 98 S. W. 417.

In this ease, Mrs. Loe consented to the release, joined in all conveyances except for one lot, and merely alleges that the proceeds derived from the sales were not applied to satisfy the debt held by appellees. The release may have been obtained in good faith by the husband, and no fraud on his part was alleged, in order to sell the other lots and apply the proceeds to the satisfaction of the lien debt, in which case it appears that his failure to do so should not be charged to the holder of the lien. Again, while she did not receive the proceeds, the same may have been applied to improve the homestead. We do not believe she can be heard to invoke any equitable principle, when, under the facts, equity and justice demand that she be not permitted to do so. The rule announced in the cited cases was applied in the case of Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645, in which it was held that a wife is estopped by making a conveyance of part of the land subject to a lien, as against the purchaser, from asserting as against him in equity to have his land sold before the homestead. In this case, Mrs. Loe joined in the conveyance of all lots except one, and it is not negatived that she privily acknowledged the conveyances. As against such purchasers she would be estopped, and, having consented that the lien be released so that she could make such sales, she would also be estopped as against the holder of the lien. If the estoppel as against the holder of the lien were dependent upon estoppel as against purchasers, it might be contended that as to the one lot, in the conveyance of which she failed to join, there was no estoppel. But if that were the case, she would only be entitled to restrain the sale to the extent of the value of said lot, and, having failed to allege its vaiue, the court had no basis upon which to make a decree, even if Mrs. Loe had been entitled to have the debt reduced to that extent. Article 4647, R. S. 1911.

The judgment is affirmed.
      (SmoBor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J. JENKINS, J.

license: Public Domain

text:
    SPAULDING MFG. CO. v. ALLEN.
    (No. 5741.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1917.
    Rehearing Denied March 14, 1917.)
    Fraudulent Conveyances <§=>138 — Oral Giot^-Necessity oe Possession.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3968, providing that no gift of any goods or chattels shall be valid unless by deed or will duly acknowledged or proved and recorded, or unless actual possession shall have been given to and retained by the donee or some one claiming under him, an alleged oral gift of a mule, not executed by actual possession, is void as against creditors (citing Words and Phrases, First and Second Series, “Gift;” “Gift Causa Mortis;” “Gift Inter Vivos”).
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 438, 443, 448-452.]
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by the Spaulding Manufacturing Company against G. W. Allen. Judgment for defendant and plaintiff appeals.
    Reversed and remanded.
    Critz & Woodward, of Coleman, for appellant. J. K. Baker, of Coleman, for appellee.
   RICE, J.

On April 28, 1913, appellants recovered judgment in the justice of the peace court in Tarrant county against W. J. -- Allen for $176.85, and costs of suit, upon which they caused an execution to issue on January 6, 1916, and to be levied by the sheriff of Coleman county on a certain mule as the property of said Allen, which was thereafter duly advertised for sale thereunder; whereupon appellee, his minor son, claimed said mule as his own, making and tendering to said officer the statutory claimant’s oath and bond for the trial of the right of property therein, which was returned to the justice’s court, where a trial was had, resulting in favor of appellant, and the case was thereafter appealed to the county court.

The issue presented for determination by the pleadings was whether the mule was the property of W. J. Allen or of his son, the appellee, appellants alleging that the claim of the son was not made in good faith.

The facts, briefly stated, show that appel-lee, who is now 16 years of age, is the son of W. J. Allen, with whom he lives; that in 1903 the latter bred a mare of his to a stallion belonging to appellee’s grandfather under the following circumstances: The mare had been bred to a jack, but it seems was not with foal, and the grandfather stated that he could breed the mare to his stallion, provided he would give the colt to George, the ap-pellee, to which he (W. J. Allen) assented; after the colt came he gave it to George, and told him about his grandfather’s having given it to him. When the colt was grown it became unruly, and W. J. Allen, the father, traded it for the mule in question. He testified that before doing so, however, he told George about it, who raised no objection to the trade, and that after that time George always asserted ’ ownership to the mule. There is no claim that there was any bill of sale or writing evidencing this transaction, nor that there was ever any actual delivery to the soh of either of the animals mentioned, nor that there was any change of possession from the father to the son as to either of them. Both the colt and the mule were kept on the premises of appellee’s father and used by him as his own, just as he did his other stock. It was shown that he mortgaged the mule on several occasions — rendered the same for taxes as bis own property, and generally exercised acts of ownership over it.

In response to special issues, judgment was rendered in behalf of appellee, from which this appeal is prosecuted. The jury found in answer to special issue No. 1 that the horse was given to G. W. Allen by his father; and also in answer to special issue No. 2 that the mule was given to G. W. Allen by his father.

Appellant urges that the verdict is contrary to and unsupported by the evidence. Our statute (Vernon’s Sayles’ Ann. Oiv. St. 1914) article 3968, reads as follows:

“No gift of any goods or chattels shall be valid, unless by deed or will, duly acknowledged or proven up and recorded, or unless actual possession shall have come to, and remained with, the donee or some one claiming under him.”

The alleged gift in this ease, not being evidenced by any writing as required by the statute, and there being no actual possession taken thereunder by appellee, it must be held to be void as against creditors. See Berthlett v. Folsom, 21 Tex. 430; Love v. Hudson, 24 Tex. Civ. App. 317, 59 S. W. 1127; Eldridge v. Mellow, 46 Tex. Civ. App. 270, 102 S. W. 435; s. c., 132 S. W. 516; Fisk v. Flores, 43 Tex. 340-343; 20 Cyc. 1192, 1193, 1195, 1196; Crawfordsville Trust Col v. Ramsey, 55 Ind. App. 40, 100 N. E. 1049, 102 N. E. 282; In re Van Alstyne, 207 N. Y. 298, 100 N. E. 802; Millard v. Millard, 221 Ill. 86, 77 N. E. 595; Coolidge v. Knight, 194 Mass. 546, 80 N. E. 620, 120 Am. St. Rep. 573; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S. W. 629, 635, 1 L. R. A. (N. S.) 790 ; 4 Words and Phrases, First Series, 3092; 2 Words and Phrases, Second Series, 729-; 4 Words and Phrases, First Series, 3085 to 3091; 2 Words and Phrases, Second Series, 728 to 730.

In view of another trial it may not be amiss to suggest that possibiy the evidence raised an issue as to whether or not the circumstances show a contract on the part of the grandfather with W. J.' Allen, whereby the appellee became owner of the colt which was afterwards traded for the mule; and likewise suggest the issue as to whether or not there was a joint gift on tke'part of the father and grandfather to appellee of the colt in question; and if in either event ap-pellee acquired title to the colt, the query is suggested as to whether or not he became entitled to the mule by reason of the trade therefor on the part of his father. These are matters, however, about which we express no opinion, but merely suggest same for consideration of counsel.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

JENKINS, J.

I concur in the conclusion reached that this case should be reversed, and remanded, but desire to express an opinion as to the law on a phase of this case raised by the evidence, viz.: If there was an agreement between the father of the claimant and his grandfather that in consideration of the grandfather’s stallion serving the father’s mare, the colt, if any, should be the property of the claimant, this was a valid contract, and upon the colt’s being foaled could have been enforced against the father; and if the father recognized such contract when the colt was foaled, it, at the instant of its coming into being, became the property of his son, and was never the property of the father, and consequently article 3698 would have no application. The father in such case, would hold as trustee for the son, both the colt and the mule for which it was traded, if the son ratified the trade, which it appears he did do by his guardian ad litem claiming the mule in this suit.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    STARK et al. v. BROWN et ux.
    (No. 155.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1917.)
    1. Adverse Possession <@=r>51 — Continuity of Possession — Judgment Agai-nst Tenant.
    A suit prosecuted to effect against a tenant in possession within the ten-year statute of limitations breaks the continuity of the landlord’s adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 238, 239.]
    2. Appeal and Error <@u=>997(3)— Review — Peremptory Instruction — Conflicting Evidence.
    Where in view of conflicting evidence it cannot be said that special findings were unsupported, the court’s refusal to give peremptory instruction will not be disturbed, although the appellate coart might have come to a different conclusion from the evidence.
    [EM. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4024.]
    3. Trial @=»125(4) — Argument of Counsel-Appeal to Prejudice Against Landowners.
    Counsel’s argument to jury that “these corporations and big rich landowners want to buy up all the land in this county and hold it and let it rot and keep the common people from getting any of it and let them rot” was cause for reversal where the court did not restrain counsel or direct jury not to consider statements, although the appellate court cannot say whether the jury was prejudiced thereby.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 306.]
    4. Trial <§^125(1) — Argument op Counsel-Prejudicial Remarks Outside the Record.
    The practice of counsel going outside of the record in argument and using language the pnly purpose of which could be to prejudice the jury is condemned.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 303.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by Emanuel Brown and wife against W. H. Stark and others. Defendants appeal from judgment for plaintiffs and denial of motion for new trial.
    Reversed and remanded.
    Holland & Holland, of Orange, for appellants. Wightman & Hancock, of Newton, for appellees.
   BROOKE, J.

The following agreement filed by the parties states the nature of the case:

“It is agreed by and between all parties hereto, acting through their attorneys of record: I. Plaintiffs claim said land sued for and described in their petition by limitation, and not by any record title, and the sole issue in said cause as to plaintiffs’ rights is their right to recover the same by virtue of the statutes of limitation as charged in plaintiffs’ petition.
“IT. Defendants own,.subject to plaintiffs’ title by limitation, the record title to said land from the sovereignty by direct chain to themselves regular and in legal form, and no proof of such fact need be made on the trial hereof, and that tlie land was patented January 1, 1885.”

The suit was filed in trespass to try title by appellees against appellants to recover 160 aeres, a part of International & Great Northern Railroad Company survey No. 5, certificate 3SSO, abstract 246, Newton county, based upon their occupancy claimed to be sufficient to support the ten-year statute of limitation. The section of land involved contains about 388 acres, and is of irregular shape, about 90 acres thereof lying below a point'where the two adjoining surveys come within 20 varas of each other, and from that point extending out in irregular shape around such adjoining surveys.

The Stewart survey is one of the adjoining surveys to the section in dispute. Plaintiffs have never occupied, by actually residing upon, the land sued for, but have during all of the time lived upon the Stewart survey, upon which survey there has been reserved for them for more than 40 years a tract of 20 acres by their former owners, and they were permitted to live upon and cultivate this tract of land.

Appellees’ claim of occupancy, cultivation, and use under the statute is based upon the occupancy, cultivation, and use by their tenants, Hannah Rhone, B. Snell, and Jim Brown, as hereinbefore recited, and they do not claim to have ever occupied, cultivated, or used the land otherwise for the required length of time. The tenancy of the parties is not evidenced by any writing, and is based on verbal attornment from year to year between the landlord and tenant.

On August 9, 1910, defendants, here as plaintiffs, brought suit against Hannah Rhone and Jim Brown, being the persons in possession, to recover International & Great Northern survey No. 5, the plaintiffs’ petition in that case describing what may be called the south part of section No. 5. In 1913 a judgment by agreement was entered in plaintiffs’ favor for the land in dispute.

The instant case was tried before a jury on special issues, and resulted in a judgment for appellees for 160 acres of land to be set apart to them out of the survey, and to include their improvements, and, a motion for new trial being overruled, an appeal has been properly perfected.

The issues presented to the jury were as follows:

“Question No. 1. Have the plaintiffs, Emanuel Brown and Ellen Brown, either in person or through tenants, had and held adverse and peaceable possession of the land described in plaintiffs’ petition, being a portion of International & Great Northern Railroad Company section No. 5, in Newton county, Tex., using, cultivating, and enjoying the same, and claiming the same for a period of ten consecutive years prior to the filing of this suit, by a separate inclosure or inclosures under fence entirely on said section No. 5?” The jury answered: “Tes.”
“Question No. 2. Was the possession and acts of the plaintiffs, Emanuel Brown and Ellen Brown, if any, of International & Great Northern Railroad Company, section No. 5, in Newton county, Tex., or a part thereof, of such a nature and character as to put a reasonably prudent person on notice that Emanuel Brown and Ellen Brown were occupying, either themselves, or through a tenant, or tenants, and claiming 160 acres of said section No. 5?” The jury answered: “Yes.”
“Question No. 3. Do you believe from the evidence that B. Snell, Hannah Rhone, and Jim Brown while occupying the land sued for in this case occupied the same, claiming the same, or not?” The jury answered: “No.”
“Question No. 4. Bearing in mind the definition heretofore given you of adverse possession and in connection with such definition, you are instructed that the word ‘hostile,’ as therein used, means an occupancy of the premises under a holding by the possessor as owner, and therefore against all other claimants of the land. Bearing in mind the foregoing definition, do you believe from the evidence in this case that the occupancy of the land sued for by plaintiffs has been continuous for any period of ten consecutive years before the institution of this suit?” The jury answered: “Yes.”
“Question No. 5. * * * Bearing in mind the foregoing instruction, do you believe from the evidence that plaintiffs had and held for ten consecutive years prior to the institution of this suit visible possession of the land sued for?” The jury answered: “Yes.”
“Question No. 6. Do you believe from the evidence that H. J. Lutcher was a person of unsound mind from February, 1902, to the time of his death in 1914?” The jury answered: “Yes.”
“Question No. 7. During what year do you believe from the evidence the first house occu-lted by B. Snell on the land in controversy was built?” The jury answered: “1898.”
“Question No. 8. During what year do you believe from the evidence the improvements, clearing, and fencing at the Snell place was done?” The jury answered: “1899.”
“Question No. 9. During what year do you believe from the evidence the clearing and fencing of what is called the ‘Jim Brown field’ was done?” The jury answered: “1899.”
“Question No. 10. During what years, if any, did B. Snell occupy, cultivate, and use any portion of the land sued for?” The jury answered: “1909, 1911, 1912, 1913, 1914, 1915.”
“Question No. 11. Do you believe from the evidence that Emanuel Brown and Ellen Brown ever resided on or occupied any portion of the land sued for?” The jury answered: “Yes.”

The action of the lower court is assailed in refusing to give special charge No. 1, as requested by defendants, which was as follows:

“In this case you are instructed that, under the evidence introduced, the plaintiffs are not entitled in law to recover any portion of the land sued for, and you are therefore instructed to return a verdict in favor of the defendants.”

Appellants’ contention is that the undisputed evidence in the case demanded the giving of such peremptory instruction.

We have gone over the record carefully, and while the appellants’ proposition that “a suit prosecuted to effect against the tenant in possession within ten years from the adverse entry by the landlord breaks the continuity of the possession and avoids the defense of ten-year limitation when asserted by the landlord against the holder of the title,” is a correct legal proposition, still we cannot agree with the contention of appellants that the assignment should be sustained. '

The issue of limitation was a sharply contested issue, and a great deal of testimony pro and con was introduced before the jury on the question of whether or not the plaintiffs had made out their plea of ten-year limitation before suit was filed by appellant in 1910 for the possession of a part of the survey against 'Hannah Rhone and Jim Brown. The issue was made and submitted to the jury, and they have found against the apiiellant. Perhaps, this court, if the case had been tried originally in this tribunal, might not have reached the same conclusion on the evidence. However, we cannot say that there is no evidence to support the findings, and, the record being in this attitude, we are constrained to overrule this assignment.

The second assignment is as follows:

“The court erred in permitting counsel for plaintiffs to use in argument to the jury the prejudicial and inflammatory argument as shown by bill of exceptions No. 5, and failing and refusing to instruct the jury, upon request, not to rogax-d the same, and refusing to stop counsel in the use of such argument after the objection made thereto at the time.”

Appellants urge the proposition that:

“Unwarranted and inflammatory argument not justified by anything in the record and permitted by the court over timely objection is reversible error where the evidence on the trial would warrant a verdict contrary to the one rendered.”

As reflected by the record, the bill shows the following to have occurred:

“Be it remembered that on the trial of the above-entitled cause, and while plaintiff’s counsel O. C. Wightman was addressing the jury in behalf of plaintiffs, and while so addressing the jury, he used in connection with other language the following language, to wit: ‘Gentlemen of the jury, these corpprations and big rich landowners want to buy up all the land in this county and hold it and let it rot and keep the common people from getting any of it and let them rot.’ To which argument and language the defendant at the time objected and asked the court to restrain counsel in such argument and instruct the jury not to consider same, but the court declined to interfere or stop counsel, and counsel was permitted to continue without restraint from the court, and the court refused to instruct the jury not to consider said argument or be influenced thereby, to which the defendants at the time in open court excepted, and now here tender this their bill of exceptions.”

There can be no question as to the object of counsel in using this language. Whether or not it really influenced the minds of the jury we have no means of knowing. As said in the case of Colorado Canal Co. v. Sims, 82 S. W. 531, in passing upon a case in which objectionable language had been used, as follows:

“Now, gentlemen of the jury, I do not ask you to bring in a verdict against this defendant because it is a corporation, and now, gentlemen of the jury, I do not ask you to bring in a verdict against this defendant because it is an irrigation corporation, though God knows the irrigation corporations of this country have swindled every man that have had any dealings with them, and to-day are attempting to swindle and rob every tenant working under them¡ and the evidence shows that this corporation is no better than any other corporation in this country.”
“Under the decision of the Supreme Court in Tel. Co. v. Perry, 95 Tex. 645, 69 S. W. 131, we must take the bill of exceptions as sufficient to authorize us to consider the objections to the words used in the argument of plaintiff’s counsel, set forth in said bill. As we have before intimated, the state of the evidence developed on the trial is such as would authorize a verdict for either party, which would not be disturbed on appeal. There can be no doubt that the use of the language complained of was as unwarranted and reprehensible as language could be. We can imagine nothing that would justify it, and there is nothing in the record that tends to show an intimation of anything to palliate it. Its only purpose could have been to prejudice the jury against the defendant, and influence them by such prejudice in finding their verdict. And we are not able to say, when the state of the evidence is considered, that the use of such language, not recanted by plaintiff’s counsel, and unrebuked by the trial court, did not have the effect upon the jury in finding their verdict that it was evidently designed by plaintiff’s counsel to have. This brings the case within the rule laid down in Railway Co. v. Musick [33 Tex. Civ. App. 177] 76 S. W. 221.”

In the Musick Case, supra, the following language is used:

‘Counsel always takes the risk of forfeiting an otherwise good judgment when such course is pursued, and we think the rule ought to be enforced in this instance.’ Appellee insists, however, that ‘ * * * the error was harmless, as the verdict of the jury was not excessive, and is supported by, and not against, the preponderance of the evidence.’ While we have not felt that we should disturb the judgment on the ground of its being excessive, although complained of as such, and although it is apparently at least liberal, in view of the fact -that appellee had no bones broken, and that the physicians testifying expressed the opinion that appellee would finally get well, it is nevertheless to be noted that the argument complained of does not relate so much to an enlargement in the amount of the judgment. It seems more appropriately adapted to the issue of whether appellee was entitled to any judgment, to discredit appellant’s testimony in support of an absolute defense; and it is on this ground that we base our conclusion, rather than on the ground of a tendency to.inflame the minds of the jury, and hence possibly increase the size of the judgment.”

We have recently animadverted upon the practice of counsel going outside of the record, and using language which could he used for no other purpose than to influence the jury, and in the recent case of Kirby Lumber Oo. v. Youngblood, 192 S. W. 1106, not yet officially reported, we took occasion to condemn such practice. The assignment is sustained.

Inasmuch, therefore, as the case will have to be again tried, on account of the error above shown, we deem it unnecessary to pass upon the remaining assignments, and for the error complained of this cause is reversed, and remanded to the lower court for a new trial.

It is so ordered.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WOMBLE v. SHIRLEY.
    (No. 1020.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1917.)
    Constitutional Law @==>149 — Mortgages @==>330 — Obligation or Contracts — Remedy-Limitation.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5693, provides that no power of sale conferred by deed of trust heretofore executed shall be enforced after expiration of four years from maturity of indebtedness, and any sale under such power shall be void. Article 5695 provides that the owners of all notes secured by deeds of trust executed prior to 1905 and which are more than four years past due shall have 12 months within which to obtain record and extension or enforce the lien securing them if the same are valid obligations when this act takes effect. In 1904 two notes were executed, the last being due in 1905, secured by a trust deed with a power of sale. At a sale by trustee in 1915 plaintiff became a purchaser. Later defendant caused an execution to be levied against the land as the property of another, and plaintiff sought an injunction against sale. The notes were more than four years past due at the time said articles became effective. Held that, as the effect of article 5695 when construed with article 5693 was to deprive the trustee of any remedy for collection of his debt, the articles are void because contrary to Const. U. S. art. 1, § 10, and section 16, art. 1, of the state Constitution, and the sale to plaintiff is valid.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 420, 480; Mortgages, Cent. Dig. § 1014.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Suit by T. E. Shirley to enjoin Troy Womble from selling certain land. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Gilliland & Estes, of Hereford, for appellant. Knight & Slaton and Russell & Dam-eron, all of Hereford, for appellee.
   HALL, J.

Appellee Shirley filed this suit to enjoin appellant from selling block No. 19, Evants addition to the town of Hereford, under execution. Appellee alleges that he is the legal and equitable owner and entitled to the possession of said land. He specifically set out his title and the manner in which he acquired title in substance as follows: 'That on December 21, 1904, the block was owned and held by Add Ran College, a private corporation, and that said college acquired it by a regular chain of title from the sovereignty of the soil, having owned it since June 29, 1903; that on the 12th day of August, 1904, the said college executed a deed of trust to S. J. Dodson, as trustee, to secure the payment of two notes, one for $4,000, dated July 1, 1903, due two years after date, and one for $1,000 dated January 2, 1904, and due June 1, 1904; that both notes were executed by said college and payable to L. A. Wyatt; that subsequent to the execution of said notes the said Wyatt assigned the same to T. M. Scott, who thereafter assigned them to Mrs. T. M. Scott; that the deed of trust given to secure the notes was filed for record in Deaf Smith county, on August 26, 1904, and that on the 6th day of July, 1915, the said property was sold by the said Dodson, as trustee, under the power conferred by the deed of trust and in accordance with its provisions, for cash, at which sale appellee became the purchaser; that the said trustee executed and delivered to appellee his trustee’s deed, properly conveying said property, which deed was duly filed for record in Deaf Smith county on September 6, 1915. The deed of trust provided for the sale of the land upon the happening of certain contingencies, and the trustee’s deed .recites that such contingencies have happened. The appellee further claimed title in his petition through voluntary conveyance from the said Add Ran College, and charges the facts to be that he deraigned said title through said voluntary conveyance in the following manner: That on the 21st day of December, 1904, under authority of a resolution previously adopted by the board of directors of said college, the said college conveyed the property by its deed to E. V. Zol-lars, X 0. Mason, X M. Strong, L. Gough, and R. H. Norton, as trustees, to be held by them for the purposes stated in said deed and authorizing them thereafter, upon the happening of certain events, to convey said property to the Texas Christian University, a corporation ; that the deed was filed for record on the-day of December, 1904, and recites a consideration of $1, and that the said Add Ran College, acting under authority of a resolution passed by its board of directors, sold and conveyed unto the said Zollars, Mason, Strong, Gough, and Norton, the said promises, describing the land in controversy. The deed sets out in full the resolution adopted by the board of directors of said college. It is further alleged that on or about June 26, 1915, the said trustees executed and delivered a deed conveying said property to the Texas Christian University, and that thereafter the Texas Christian University, authorized by a resolution of its board of directors, conveyed the property by deed to appellee; that appellee and those under whom he claims have had and held peaceable and adverse possession of the property, holding and claiming under title and color of title more than three years next before the filing of his petition, and that he and those under whom he claims have had and held peaceable and adverse possession of said property, cultivating, using, and enjoying the same, and paying all taxes due thereon, and claiming the same under deeds duly registered for a period of more than five years next before the filing of his petition, and that he and those under whom he claims have had and held peaceable and adverse possession of the property,, cultivating, using, and enjoying the same and claiming to own the same for a period of ten years next before filing of his petition. Appellee further alleges that on October 12, 1905, appellant filed suit on certain notes in the county court of Deaf Smith county, Tex., against Add Ran College, as defendant, in cause No. 90, and at the time of filing such suit caused a writ of attachment to be issued and levied on block No. 23, Evants addition to the town of Hereford, which was the property of Add Ran College; that on January 2, 1906, appellant obtained judgment in said court in said cause against said Add Ran College, for the sum of $600, with interest thereon from April 28, 1903, at the rate of 10 per cent, per annum, and all costs of suit, and thereafter caused an execution to issue on said judgment and levied on said block 23, and the same was sold under said execution by the sheriff of Deaf Smith county, for the sum of $240 to appellant, which appellee charges was materially less than the value of said property; that appellant had caused an alias execution to be issued on said judgment and placed the same in the hands of the sheriff of Deaf Smith county, Tex., who had levied the same on part of the block 19 in said Evants addition, claiming that said property was still owned by Add Ran College, and subject to be sold in satisfaction of the balance due on said judgment; that said sheriff had advertised the same to be sold under said alias execution on the first Tuesday in October, 1915, and unless restrained would sell said property at that time; that appellant further claimed that the deed, dated December 21, 1904, from Add Ran College to Zollars et al., is void as to appellant because as a fact appellant was a judgment creditor of Add Ran College, and that the conveyance was made for the purpose of delaying, hindering, and defrauding the creditors of said college. Appellee alleges further that at the time of the' conveyance by the said college to the said Zollars et al. the said college owned other property in the state of Texas, subject to execution, of value more than sufficient to pay off and discharge all of its debts; that unless restrained the sheriff will sell said property, thereby placing a cloud on appellee’s title, and compel appellee to resort to an action to remove the same.

Appellant answered the petition by general demurrer, and by special exception to that portion, of the petition wherein it is charged that appellee acquired title at the trustee’s sale under a deed of trust dated August 13, 1904, which secured the two notes — one due in 1905 and the other 1904r— because limitation had barred said lien and no extension was shown, as provided for by the acts of the Legislature of 1913, and the sale under the trustee’s deed was shown by the petition to have been on July 6, 1915. The court overruled the general demurrer and special exceptions. Appellant further answered by general denial and also pleaded as a special defense that the property in controversy was conveyed by Add Ran College to E. V. Zollars, and the other trustees, without consideration, as a donation and gift, and in fraud of the creditors of said college, and at the time of the conveyance the said college did not own other property aside from that conveyed, exceeding in value $400, and at the time of such conveyance the said college owed to appellant and other persons more than $3,000; that no part of said indebtedness had been paid by said college, except the amount of $240, which was paid on appellant’s judgment by sale under execution of said block 23, and that the said college owed the said indebtedness upon which the judgment was rendered prior to the time it conveyed the said property to the said trustee, and that the said judgment was duly abstracted, recorded, and indexed, in Deaf Smith county, Tex., in the proper records, on September 19, 1912, and constitutes a judgment lien upon the property in controversy; that at the time the said Dodson foreclosed the said deed of trust the same was barred by the statute of limitations; that the said deed of trust was eseeuted prior to July 14, 1905, and that the indebtedness it secured was more than four years past due at the time the acts of 1913 became effective; that suit was not brought thereon within twelve months after said act became effective, and the extension provided for by said act was not procured and recorded as and at the time provided for in said act. Appellant prayed that the injunction theretofore granted be dissolved; that the deed from Add Ran College to the trustee, the deed from the trustees to the Christian University, and the deed from the Christian University to appel-lee all be canceled and annulled, and that appellant’s judgment lien be decreed to be superior to the rights, title, or claim held, owned, or claimed by the appellee to the said .property, and that the appellant have his decree, foreclosing his said judgment lien on said land, for costs of suit and for general and special relief. In reply to appellant’s answer and cross-action appellee filed his first supplemental petition, which contained a general demurrer and two special exceptions; the first special exception being:

“Because it appears therefrom that the defendant’s cross-action, attacking the deed from Add Ran College to Zollars et al., accrued more than four years from the filing of his answer and cross-action, and is therefore barred by the four-year statute of limitations.”

The second exception is:

“And the said plaintiff specially excepts to that part of the defendant’s answer pleading limitation as to the sale of the land in controversy under the trust deed pleaded by plaintiff, because said plea of limitation is no defense to plaintiff’s cause of action.”

These exceptions are followed by a general denial, a special plea.of limitation, and the further allegation that any right the defendant may have had to attack the deed from Add Ran College to Zollars et al. as being in violation of the statute of frauds accrued more than four years from the filing of his answer and cross-action, and that said cross-action and his suit to set aside said deed for fraud are barred by the statute of limitation of four years. The court sustained both the appellee’s first and second special exceptions to defendant’s answer. A jury was waived and the case tried before the Court, resulting in a judgment in favor of the plaintiff, perpetuating the injunction theretofore granted, restraining the defendant from causing said land to be sold under execution, and for costs of suit.

There is an agreed statement of facts, which, omitting the formal parts, is as follows:

“We, the parties to the above entitled and numbered cause, whose names are signed hereto, being all the parties to this suit, hereby agree as to a statement of facts, to wit: That all of the allegations of fact contained in plaintiff’s original petition and the Exhibits A, B, and C, thereto attached, are true and correct, save and except the allegations as to the value of the property, and the allegations of limitation pleaded in said petition as title to said property in plaintiff. We also agree to submit this case as an agreed case under the provisions of the statute, and that it may be determined accordingly.”

This is signed by counsel, and approved by the trial judge.

The first assignment is that the court erred in overruling defendant’s special exception to plaintiff’s original petition. The proposition following this assignment is that a deed of trust lien, dated August 13, 1904, semir-ing two notes, one due in 1905, and the other in 1904, is barred by the statute of limitations under the acts of 1913, on the 6th day of July, 1915, where suit has not been filed or an extension had as provided by the acts of 1913, and a sale made by a trustee after limitation had barred the lien was void and passes no title to the purchaser at such sale. Appellee urges a counter proposition that the court did not err in overrul'ing the special exception because articles 5693 and 5695, Vernon’s Sayles’ Civil Statutes, are obnoxious to that clause of section 10, art. 1, of the Constitution of the United States, which forbids any state to pass any law impairing the obligation of a contract, in that the Texas statute referred to absolutely deprives the holder of the deed of trust in the instant case of his right secured by contract to have the property sold in satisfaction of his debt under the power of sale created by the deed of trust. The deed of trust under which appellee Shirley derived title was executed August 13, 1904, and was duly filed for record in Deaf Smith county August 26, 1904. The instrument contained a power of sale in the usual form authorizing the trustee in. default of payment of the notes, to sell the property and convey it to the purchaser. At a sale by the trustee on the first Tuesday in July, 1915, after proper advertisement and strictly in accordance with the provisions of the power of sale, appellee became the purchaser, and the trustee executed a deed in proper form, conveying him the property. It is contended by appellants that by reason of the above-named statutes this sale is a nullity. Article 5693 is:

“No power of sale conferred by any deed of trust or any mortgage on real estate heretofore executed, or that may hereafter be executed, shall be enforced after the expiration of four-years from the maturity of the indebtedness secured thereby, and any sale under such power after the expiration of such time shall be void, and such .sale may be enjoined and the lien created in such mortgages or deeds of trust shall cease to ■ exist four years after the maturity of the debt secured thereby: Provided, if several obligations are secured by said mortgage or deed of trust, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes or obligations not then barred by the four-year statute of limitations.”

The original act was passed in 1905, and amended in 1913, and the amendment affects directly the contract under consideration, which was in existence before the passage of the original act The obligations were barred before the amendment of the act in 1913, and the effect of the act is to prohibit the execution of the-power of sale for the payment of all notes barred by the four-year statute at the date of the passage of the act. We think the appellants’ contention is incorrect.

“It is a fundamental principle of constitutional law in reference to the obligation of contract that the laws in force at the time of making a contract and the right to a remedy enter into and form a part of it as if they were expressly referred to or incorporated in its terms, and that they likewise constitute a part of its obligation. The remedy, which is protected by the contract clause of the Constitution, is something more than the privilege of having a claim adjudicated. Mere judicial inquiry into the rights of parties is not enough. There must he power to enforce the results of such an inquiry before there can be said to be a remedy which the Constitution deems a part of the contract. Nothing is more material to the obligation of a contract ■ than the means of its enforcement. The idea of validity and remedy are therefore inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment.” 6 R. C. L. p. 355, § 352.
“It sometimes happens that the parties contract concerning the remedy: Por example, they may stipulate in the body of the contract that in case of failure of payment by a certain day of a debt secured by mortgage, there shall be no stay of execution or that the mortgagee may enter and sell the mortgaged estate, or that all exemption rights shall be waived. In such cases the rule is that the remedy becomes part of the obligation of the contract, and any subsequent statute which affects the remedy impairs the obligation, and is unconstitutional.” Id. p. 361, § 356.
“The general rule is that the law in force at the time a mortgage is executed, with all the conditions and limitations it imposes, is the law which determines the force and effect of a mortgage, and hence it’ is that change in the laws imposing conditions and restrictions on a mortgagee, in the enforcement of his right, and which affect its substance, are invalid as impairing the obligation, and cannot prevail. Following this rule the law will not permit changes to be made by statute, which, as to pre-existing mortgages, extend or otherwise alter the period of redemption, even though a sale has not yet taken place, or direct that decrees be made on a longer period of credit than was allowed at the date of the mortgage, or alter the right of a mortgagee to sale on foreclosure, subject only to the redemption provided for by the law in force when the mortgage was made.” Id. 360, p. 365.

The Supreme Court of this state, in the case of Goldfrank, Frank & Co. v. Young, 64 Tex. 432, held that the statute of limitations, in actions for debt, affected the remedy only, and that it did not deprive the creditor of a remedy when he had-provided by contract to enforce through a power of sale contained in a trust deed the payment of his claim, without the assistance of the courts, and that rules of equity regarding laches and stale demands only applied. Article 5693 would destroy the right existing in this case declared to exist in Goldfrank, Frank & Co. v. Young. Article 5695 provides for the extension of any contract referred to in either of the two preceding articles, and its record in the county clerk’s office of the county in which the land is situated. It further provides that after such record the lien'shall continue to be in force until four years after the maturity of the notes, as provided in such extension. It is further provided that the owners of all notes secured by deeds of trust executed prior to July 14, 1905, and which are more than four years past due at the time this act takes effect, shall have twelve months after the act takes effect within which they may obtain such record extension or bring suit to enforce the lien securing them, if the same are valid obligations when this act takes effect, etc. At the time of the amendment in 1913 appellee’s notes were more than four years past due, and were therefore not “valid obligations,” and the effect of this article, when construed in connection with article 5693, is to deprive appellee of any remedy whatever for the collection of his debt. Section 10, art. 1, of the Constitution of the United States, and section 16, art. 1, of the Constitution of the state of Texas, relate to the remedy when the effect of the legislative act is to deprive the creditor of all remedy against his debtor. The right and a remedy, substantially in accordance with the right, are equally parts of the contract secured by the laws of this state. As held in Goldfrank, Frank & Co. v. Young, supra, appellee would have no right to collect his debt through ’the courts; but, having provided in his contract a method for enforcing his rights, a law which restricted the power of sale, or as in this case entirely destroyed it, is in contravention of the two constitutional provisions mentioned. If the effect of the statute had been merely to change the remedy it would not have been objectionable, but where its effect is to entirely destroy all remedy, the Supreme Court of the United States, followed by the decisions of this state, and otter jurisdictions, have uniformly held that such law is, to that extent, inoperative and void. Edwards v. Kearzey, 96 U. S. 595, 24 U. Ed. 793; Von Hoffman v. Quincy, 4 Wall. (71 U. S.) 535, 18 L. Ed. 403; Bronson v. Kinzie, 1 How. (42 U. S.) 311, 11 L. Ed. 143; Seibert v. United States, 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. Ed. 1161; Brine v. Hartford Ins. Co., 96 U. S. 627, 24 L. Ed. 858; Barnitz v. Beverly, 163 U. S. 118, 16 Sup. Ct. 1042, 41 L. Ed. 93; Louisiana v. New Orleans, 102 U. S. 203, 26 L. Ed. 132; McLane v. Paschal, 62 Tex. 102; M., K. & T. Ry. Co. v. Hudgins, 60 Tex. Civ. App. 344, 127 S. W. 1183. These authorities, and many others which might be cited, sustain the rules quoted from 6 R. C. L. above and the list might be multiplied many times by citing the cases upholding the text and- the authorities cited in the opinions of such cases.

Without discussing the proposition under tbe third assignment, that the court erred in sustaining plaintiff's first special exception to the defendant’s original answer, we think the contention here is settled by the agreed statement of facts. As shown above, the parties agreed that all of the allegations of fact contained in plaintiff’s original petition are true and correct. The petition alleges that the deed executed by Add Ran College to Zollars et ah, trustee, was not executed with any intent to hinder, delay, or defraud the creditors of the college, nor under any other circumstances rendering it void under the provisions of the statute of frauds. It is also alleged that at the time of the execution of said deed the college had other property in this state subject to execution, of value more than sufficient to pay its debts. Under this agreement the ruling of the court upon the exception becomes immaterial, and the error, if any, is harmless.

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


text:
    SLADE & BASSETT v. CRUM.
    (No. 1034.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1917.
    Rehearing Denied March 28, 1917.)
    1. VENDOR AND PURCHASER <&wkey;3(4) — SALE Distinguished from Option.
    A contract under which the prospective purchaser deposited earnest money to be divided in a certain way in case of nonperformance, was an option, and not a sale, contract.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 3.]
    2. Brokers &wkey;>61(l) — Compensation—Defect in Vendor’s Title.
    Brokers securing a purchaser ready and willing to take their principal’s land under an option contract are entitled to their commission if the trade fails because of defects in the vendor’s title.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92.J
    3. Vendor and Purchaser &wkey;>129(4) — Vendor’s Title — Defects in Prior Conven-ances.
    A vendor’s title was defective where the abstract showed a prior conveyance from testamentary trustees for a $1 consideration and a supplementary conveyance for other unnamed considerations where such trustees could only sell for the property’s reasonable value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 241.]
    4. Trusts &wkey;>196 — Sale by Trustee — Power under Will.
    Under a will authorizing trustees to sell either for yearly rent or a gross sum, or partly for each, the trust estate cannot be conveyed except for a consideration reasonably proportional to its value.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 251.]
    5. Vendor and Purchaser <&wkey;18(2) — Construction of Contract — Extension of Time, for Payment.
    Under a contract extending an option for a consideration which was also described as a part payment on the land, the payment was intended not only for the extension, but also as a part payment, especially under the surrounding facts.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 23.]
    6. Vendor and Purchaser &wkey;>18(3) — Exercising Option — What Constitutes.
    A letter authorizing payment of consideration for an option extension upon condition that it be returned if the vendor did not perfect his title does not sustain a finding that the writer had decided not to take the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 23.]
    7. Vendor and Purchaser <&wkey;78 — Construction of Contract — Time as of the Essence.
    Ordinarily time is not of the essence of a contract for the sale of real estate.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 121-125.]
    8. Vendor and Purchaser <&wkey;18(3) — Forfeiture of Contract for Nonperformance —Waiver.
    Any right of the vendor to declare an option contract forfeited because of failure to promptly make a payment was waived where negotiations were continued for several months.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 23.]
    Appeal from District Court, Castro County; R. C. Joiner, Judge.
    Action by Slade & Bassett against J. L. Crum. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    Knight & Slaton, of Hereford, for appellants. Gilliland & Estes, of Hereford, and Martin & Zimmermann, of Tulia, for appel-lee.
   HALL, J.

Appellants brought this action to recover of appellee, Crum, commissions claimed to be due them as real estate brokers, under an alleged agreement with appel-lee that he would pay them commissions at the rate of 5 per cent, for the sale of certain sections of land in Castro county at $11 per acre. Suit was filed December 8, 1908, appellants alleging that the contract was entered into in the month of September, 1906, and that by the terms of the contract their commissions became -due and payable December 6, 1906. On a former appeal this court reversed the judgment of the lower court by an opinion published in 154 S. W. 351. After the reversal appellants amended their petition, seeking a recovery upon two different theories. One is that the contract entered into between the appellee and the proposed purchaser of the land, J. W. Crudgington, was an absolute sale contract, and not an option contract, as formerly held by this court, and that the appellants had procured such purchaser, with whom Crum was satisfied under the contract, and with whom he entered into such binding contract of sale. Wherefore appellants were entitled to their commissions, although the contract of sale between Crum and Crudgington was never finally consummated. The other theory is that in the event the contract between Crum and Crudgington is only an option contráct appellants were nevertheless entitled to recover, because Crudgington was at all times ready, willing, and able to take the land, and would have done so but for the defect in the title. Appellee alleged that, while the original contract between Crum and Crudgington was to have been consummated not later than December 10, 1906, on the 5th day of December, 1906, they entered into a supplemental agreement by the terms .of which the time for closing the original contract was extended to January 1, 1907, and that Crudg-ington has failed to comply with the terms of said supplemental contract; that Crudg-ington had agreed to pay $500 on or before December 15,1906, as a consideration for the extension of the time of performance of the original contract, and that said amount had never been paid. Appellants alleged that the $500 which Crudgington bound himself to pay by the supplemental contract was not to be paid in ponsideration for such extension of time, but was merely an additional sum advanced as part of the cash payment for the land. A jury was impaneled to try the issues, but the court instructed a verdict for the defendant, Crum.

It is insisted under the first assignment of error that, appellants having procured Crudg-ington as a purchaser for Crum’s land, with whom Crum was satisfied, and with whom he actually contracted for the sale thereof, at a specified price, they are entitled to their commissions even if Crudgington refused to consummate the contract, provided such refusal was caused by a defect in the title. The contract provided that Crum should furnish Crudgington an abstract of title to each of the sections on or before the 10th day of December, 1906, showing “perfect clear title” to said lands, except as to certain incum-brances mentioned in the contract. Among other provisions is one that in the event any defects appear in the titles, as shown by the abstracts, Crudgington should promptly notify Crum so that Crum might have a reasonable time in which to correct them. The closing paragraphs of the contract are as follows:

“The buyer has this day paid to the seller the sum of $2,000.00 as part of the cash payment to be forfeited to the seller in the event the buyer', upon approval of the title to said lands, after being furnished abstracts and deed as aforesaid, fails or refuses to perform his part of this contract, but to be returned to the buyer in the event the title to the seller should be found defective, and he should be unable to correct such defects.
“In the event the buyer forfeits the $2,000.00 paid, and the contract thereby is at an end, that the said sum is to be divided between the seller and Slade & Bassett, the seller’s agents, in the following proportions: The seller retaining $1,500.00 and paying said Slade & Bassett the sum of $500.00. Executed in duplicate the day and date first above written.”

The contract, was signed by both Crum and Crudgington. The following is the supplemental contract:

“Above contract in all its terms is hereby extended to the 1st day of January, 1907, in consideration that said Crudgington pays me the sum of $500.00 on or before the 15th day of December, 1906, and pays draft to be drawn by me for $1,000.00, if I desire to draw same any time after the 15th December, 1906, as part payment on land which I may purchase. In default in payment of either of said amounts said Crudgington is to forfeit to me the $2,000.-00 heretofore paid and all rights under this contract.
“This 5th day of December, 1906.
“[Signed] J. L. Crum.”

We think as a general rule the proposition stated in the first assignment is well supported by the authorities. Conkling v. Krakauer, 70 Tex. 735, 11 S. W. 117; Gillespie v. Dick, 111 S. W. 664; Kirkland & Son v. Berry, 136 S. W. 832.

Two propositions, to the effect that the contract entered into between Crudging-ton and Crum was an absolute sale contract instead of an option contract as formerly held by this court, are in our opinion not supported by the authorities. As sustaining our former holding, we cite the following cases: Carter v. Smith, 184 S. W. 244; Knott v. Thomas, 180 S. W. 1114; Nelson v. Butler, 190 S. W. 811.

The first proposition under the second assignment is that even though the contract be held to grant an option to Crudgington, nevertheless, if the optionee is ready, willing, and able to take the land, and would have consummated the deal but for the defect in the title shown by the abstract furnished him by the seller, the brokers are entitled to their commission. We think this proposition is sound. As said by Williams, J., in Hamburger & Dreyling v. Thomas, 103 Tex. 280, 120 S. W. 561:

“The chief ground of defense is the fact that the writing copied in the opinion of the Court of Civil Appeals, which was executed by the defendants and Baker, did not bind the latter to take the property, but left to him the alternative, even if he should prove the title, either to take it or to forfeit the $1,000 deposited. There would be more force in this if the title had proved satisfactory and Baker had exercised his right to recede from the trade by forfeiting the money deposited. In such case there would have been neither a willingness to buy nor an enforceable contract to buy, one or the other of which conditions would be essential to the brokers’ right to compensation. But the latter condition is not essential where the first exists and the sale is defeated by the owner of the property. The question whether or not the plaintiff performed the service called for by. the contract is not wholly dependent upon the writing executed between the owners of the property and the proposed purchaser. The fact that the latter really was willing and able to buy and would have bought, notwithstanding he was at liberty not to do so, had he not been prevented by the defendant’s failure to produce proper evidence of title, must be regarded as controlling and as dispensing with the necessity of a binding contract to purchase which might otherwise have existed. The case differs from those in which there is no evidence of the rendering of the service by the broker but the granting of an option to the so-called purchaser, in the fact that a purchaser was found by plaintiff, a sale to whom was prevented only by the fault of the owner.”

The testimony in the record is sufficient to support the finding that Crudgington was at all times ready, willing, and able to take the title and consummate the deal in accordance with the contract and supplemental agreement but for the defects shown to exist in the title.

The second proposition under this assignment is that the abstracts furnished by Crudgington do not show a “perfect clear title.” This position is also well taken. It appears that the title was at one time in John Alexander Beith; that by the provisions of his will, executed in England, where he lived and died, his wife, Jane, and his two sons, Alexander and John Hay, together • with two friends, viz. William John Robinson and John Brookfield Parkinson, were made trustees, and by its terms his wife was appointed the guardian of certain infant children. The only disposition made of his Texas lands was in the residuary clause, as follows:

“I give, bequeath, and devise all of the residue of my real and personal estate unto my trustees hereinafter named and appointed, upon trust for sale and conversion and to invest the residue in one or more of the modes hereafter specified.”

This is followed by a number of directions to the trustees, immaterial for the purpose of this suit, and then the following clause:

“I declare that it shall be lawful for my trustees at any time absolutely to sell my real or leasehold property or any real or leasehold estate or rents purchased with any part of my estate or the proceeds thereof, and sales made by my trustees shall be made either in consideration of a yearly or ground rent or for a gross sum of money, or partly for a yearly rent and partly for a gross sum, and in selling any part of such property my trustees may give and grant any power of perception of rent or distress over any other property belonging to me, as indemnity against any overriding rent or rents.”

The abstracts show a deed executed October 6, 1898, by the trustees named above, conveying the property to Cornelius Cuyler and Benjamin Graham, of New York, reciting a consideration of $1. Another conveyance, dated February 21, 1902, contains the following recital:

“Do and each of us doth declare and acknowledge that these presents are supplemental to an indenture of conveyance dated the 6th day of October, 1898, whereby certain lands and premises in the state of Texas, situated in the counties of Castro, Swisher, Randall, and Deaf Smith, were granted and conveyed by us and one John Thompson to Cornelius C. Cuyler, and Benjamin Graham, and we further acknowledge and declare that in addition to the condition of the payment of $1 expressed by such indenture, to be paid to us by the said Cornelius C. Cuyler and Benjamin Graham, there were at the time of the execution of such deed further valued considerations which passed to though such valued considerations were not mentioned in such deed.”

These deeds do not show a sale of the land in strict compliance with the terms of the will as required by law, and the recitals quoted above placed the burden of showing such a consideration, as is required by the terms of the will, upon the purchaser. The abstracts therefore did not show a “perfect clear title” to the lands. As said in Hamburger & Dreyling v. Thomas, supra:

“It is true that the evidence does not show that the title was bad. * * * It was that the evidences furnished did not show the title to be good; and it was to that defendants were obligated by both their contracts,” etc.

As stated above, the contract in the instant case provided that the abstracts furnished by Crum should show “perfect clear title.” It is not our purpose to declare the title bad, but the extent of our holding is that the title apparent upon the face of the abstract was not in compliance with the terms of the contract. The trustees had no right to convey the trust property except for a consideration reasonably proportioned to its value, and this should appear in the abstract.

Under the third assignment it is urged that the supplemental contract extending the original contract, when considered in the light of surrounding circumstances, was not susceptible of being interpreted to mean that Crudgington had promised to pay $500 in cash to Crum and to honor Crum’s draft for $1,000 if subsequently drawn as a consideration for the extension of time of performance to January 1st by Crudgington of the original contract. We think this assignment must also be sustained. Our construction of the supplemental contract is that the $500 agreed to be paid on or before the 15th day of December and the $1,000 draft provided for were not to be taken solely as a consideration for the proposed' extension of time, but were also to be paid as part of the purchase money for the land. We think this is apparent upon the face of the contract, but if the language of the supplemental contract is susceptible of a different construction, the surrounding facts and circumstances show that the two sums were not to be paid in consideration for the extension alone, but were to be advanced in addition to the $2,000 already paid as purchase money.

If the peremptory instruction was given upon the idea that Crudgington breached the supplemental contract, we think the fourth assignment of error should also be sustained. The supplemental contract obligates Crudgington to pay $500 on or before December 15th, and it was shown that by oral agreement subsequently made on the same day Crudgington agreed to increase this amount to $650. These agreements were made before the abstract of title had been furnished. Between that date and December 14th Crudgington, by an examination of the abstract of title, had learned of the defects, and on December 14th wrote Crum, calling them to his attention, using this language :

“Now, as to paying you the $650.00 you request, I will do it on condition that you perfect the titles and any other defects that may be discovered in any of the titles, and, failing to do so, you will refund me this money, together with the $2,000.00 already paid you, as provided in the contract. Otherwise X will decline to pay any more money till the titles are perfected and your failing, after a reasonable time, shall demand the return of $2,000.00 as provided in the contract. Mr. Bassett has cheek for $650.00, which he is authorized to hand you upon your accepting this proposition, and signing this lettpr and duplicate.”

It appears that Bassett took this letter and the check mentioned to Hereford, and that Crum refused to sign the duplicate of the letter or to accept the money. There is nothing in the letter indicating that Crudgington would not take the land, but, on the contrary, a reasonable inference from it is that he will close the deal as soon as the defects in the title are remedied. The trial court was not authorized to direct a verdict upon the presumption that Crudgington had exercised the option, and decided not to take the land.

The general rule is that time is not of the essence of a contract for the sale of real estate (Gaut v. Dunlap, 188 S. W. 1020), and the fact that Crum did not declare the contract forfeited on December 15th, if indeed he had such right, and did not refuse to consummate the deal until the month of March, 1908, and in the meantime was negotiating with Crudgington concerning the land,’ show that the parties did not consider time as an important element. We doubt the right of Crum to declare the contract forfeited because of Crudgington’s failure to pay the $650 on December 15th, after the title to the land had been found defective and while Crudgington was ready to close the deal, but for such defects. The effect of such holding would be to give Crum the benefits of his contract at a time when he was in default by reason of his defective title, and before the expiration of a reasonable time in which to perfect it. Raywood Canal & Milling Co. v. Sharp et ah, 175 S. W. 499. Whether we are correct or ‘not in this holding, the facts in this record are sufficient to show that Crum waived the forfeiture as provided in the supplemental contract. The courts do not readily declare a forfeiture where the vendor has failed to take advantage of such provision in the contract, but continues to negotiate with the' vendee. It appears from the facts that several days after the 15th of December Crum and Crudgington met in Hereford and discussed the question of the condition of the title in connection with Crum’s attorney living in Hereford; that they had several conversations with reference to the matter, and it was agreed that Crudgington should go to Dallas and talk to a party there who could probably clear up the objections to the title; that together they undertook to sell the land to the International Land Company; and that these negotiations continued until March 1908, when Crum declared his intention of ending the matter.

The question of the waiver of the right to declare a forfeiture under a contract is ordinarily a mixed question of law and fact, but if upon another trial the evidence should be the same as appears in the record before us, we think the court should instruct the jury to find that the forfeiture, if any, was waived by Crum’s subsequent conduct. Bower’s Law of Waiver, §§ 46-56; Landrum v. Buford, 29 Tex. Civ. App. 62, 67 S. W. 1066; Hill v. Still, 19 Tex. 76, 84; Younger v. Welch, 22 Tex. 425.

The uncontroverted evidence in the record is that Crudgington was' always ready, willing, and able to consummate the sale in accordance with the terms of the contract and the supplement, as soon as Crum perfected his title, and this is the principal inquiry in the case.

It appears that after the trade had been declared at an end Crudgington sued Crum to recover the $2,000 earnest money paid at the time of the execution of the contract This suit was dismissed by a written agreement, and was offered in evidence and excluded by the court. A careful reading of the agreement convinces us that it has no bearing whatever upon any issue in the case, and the court did not err in excluding it.

Because of the peremptory instruction, the judgment is reversed, and the cause remanded.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    HILL v. HILL.
    (No. 5767.)
    (Court of Civil Appeals of Texas.
    Feb. 28, 1917.)
    1. Divorce <&wkey;103 — Petition—Sufficiency— General Demurrer.
    In an action for divorce, petition held sufficient against an exception, in effect a general demurrer, that it was insufficient in law because the allegations of defendant’s conduct, etc., were too vague, uncertain, and indefinite.
    [E'd. Note. — For other cases, see Divorce, Cent. Dig. §§ 320, 321.]
    2. Divorce <&wkey;179 — Appeal—Presentation of Grounds in Lower Court.
    . The objection that a divorce petition was insufficient for failure to deny charges of infidelity alleged will not be considered on appeal, where not raised either in pleadings or motion for new trial.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 565.]
    3. Divorce <&wkey;179 — Appeal—Submission of Issues to Jury.
    Where, in a divorce proceeding, defendant admits that plaintiff is a bona fide inhabitant, failure to submit issue of inhabitancy cannot be urged on appeal.
    ■ [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 565.]
    4. Appeal and Error &wkey;>213 — Appeal—Sub-: mission of Issues to Jury — Statute.
    Under express provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, failure of the court to submit to jury an issue raised by the pleadings and evidence in a divorce suit is no ground for reversal of a special verdict unless submission was requested in writing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308.]
    5. Appeal and Erro» <&wkey;930(3) — Failure to Submit Issues — Presumptions—Statute.
    Under express provisions of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, in submission for a special verdict, will be deemed found by the court in such manner as to support the judgment providing there is evidence to sustain such finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3759.]
    6. Appeal and Error <&wkey;262(3) — Questions Reviewable — Instructions.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, declaring that a failure to except to trial court’s giving or refusal of an instruction is a waiver of objection thereto, failure of court to submit an issue will not be considered on appeal in absence of an exception to the charge for failure to submit such issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1593.]
    7. Divorce <&wkey;184(4) — Appeal—Absence op Statement op Facts — Presumptions.
    Where court has found that plaintiff was a bona fide resident entitling her to sue for divorce, it will be presumed on appeal, in absence of a statement of facts, that all jurisdictional allegations were sustained by ample proof.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 570.]
    Appeal from District Court, Bell County; John. D. Robinson, Judge.
    Divorce suit by Zelma Hill against J. B. Hill. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ward & Evetts, of Temple, for appellant Sam D. Snodgrass and W. O. Cox, both of Temple, for appellee.
   RICE, J.

This suit was brought by appel-lee against appellant for divorce and for the custody of their child. In response to special Issues, the court rendered judgment annulling the marriage and awarding the custody of the child to appellee, from which judgment this appeal has been prosecuted.

The first assignment complains of the failure of the court to sustain what appellant terms his special exception No. 1 to appellee’s petition for divorce, but which in fact was no more than a general demurrer. The first, amended, original petition upon which plaintiff went to trial, alleged, among other things, after alleging residence, etc., that:

“In disregard of his marriage vows, defendant, a short time after such contract of marriage was entered into, the exact (date) of which cannot be given, began a course of unkind and tyrannical and harsh treatment and conduct towards plaintiff, which was kept up and continued up to and including'the time she was forced and compelled to separate from him as hereinbefore shown and alleged; that defendant at various times and on divers occasions, and especially during the last year of said marriage life, and almost daily during said time, cursed and abused plaintiff, and violently threatened to strike and assault her without provocation or excuse, said defendant during all said time abused, and further mistreated plaintiff at times and on various occasions, purposely and intentionally neglected and ignoring her and by refusing to contribute to her support, or to the support of their infant child; and that from the time of their said marriage until the date of their separation, defendant spent his time in idleness and contributed nothing to the support of plaintiff or their said child; that for about six months prior to the 11th day of- April, 1914, plaintiff was afflicted with a goiter on her neck, and was compelled to call on a physician, Dr. Power of Temple, for treatment; that defendant refused to pay said physician for his services, and when plaintiff requested defendant to assist her in making such payment, he (defendant) did, on about the 10th day of April, 1914, accuse plaintiff of infidelity to him, charging that she was visiting said physician for improper conduct and improper relations with him, and accused her with improper conduct with said physician, and then and there, in the presence of her mother, violently threatened to strike plaintiff; that said insults, excesses, and outrages and threats had the effect to impair plaintiff’s health, causing her to lose flesh and become sick and feeble, and was of such a nature as to render her living with defendant insupportable, and by reason thereof plaintiff left her home and separated from defendant, on, to wit, the 11th day of April, 1914, since which time they have lived separate and apart from each other.
“Plaintiff avers that on other and different occasions to the time hereinabove alleged, defendant violently threatened to choke, strike, and to assault her, and by such threats and conduct caused plaintiff to become afraid of him, and for more than twelve months prior to said separation plaintiff, by reason of such excess cruel treatment, excesses, and outrages and 'insults, and because of all of which plaintiff was compelled to leave and separate as above alleged.”

The exception addressed to such petition was as follows:

“Defendant specially excepts to paragraph 2 of plaintiff’s first amended original petition filed herein, and says that the same is insufficient in law and shows no cause of action against the defendant; said allegations are too vague, uncertain, and indefinite as to what plaintiff alleges constitutes the course of unkind, harsh, tyrannical, and brutal treatment and conduct by defendant toward plaintiff, and as to the allegations as to the abuse, neglect, intentional ignoring, and mistreatment of. plaintiff by defendant, and as to whether said conduct was provoked by plaintiff, or as to whether said conduct was occasioned by the acts and conduct of defendant.”

This exception constitutes no more than a general demurrer, and was properly overruled.

By his third proposition under this assignment, appellant asserts that the petition was insufficient for-the failure to deny the truth of the charges of infidelity alleged to have been made by him against her. This proposition will not be considered for the reason that it is not raised either in the pleadings or motion for new trial.

The third assignment urges that the court erred in not submitting to the jury the issue of the inhabitancy of plaintiff. No such issue was raised by the pleadings in this case. In fact, appellant himself' alleged that plaintiff was an actual, bona fide inhabitant of the state of Texas, and. bad resided in the county of Bell for more than six months next before the filing of this suit. Article 1985, vol. 2, Vernon’s Sayles’ Rev. Civ. Stats., provides, among other tilings, that failure by the court to submit any issue raised by the pleadings and evidence is not ground for reversal, unless the submission thereof was requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment; provided there be evidence to sustain such a finding.

In the present case, the court specially found, as appears from the judgment, that plaintiff was an actual, bona fide inhabitant of the state, and had resided in the county of Bell for more than six months next preceding the filing of this suit. But even if this had not been done, the appellant could not raise the question here: (1) Because of his admission, as above indicated; and (2) because he did not except to the charge for failure to submit the question to the jury. See article 2061, vol. 2, Vernon’s Sayles’ Civ. Stats. In such cas'e, he must be held to have acquiesced therein. See Floegge v. Meyer, 172 S. W. 195, and authorities there cited.

For each of the reasons set forth, especially in the absence of a statement of facts, we must presume that all jurisdictional allegations were sustained by ample proof. The cases of Moore v. Moore, 67 Tex. 293, 3 S. W. 285, and Brunner v. Brunner, 142 Mo. 155, 43 S. W. 786, upon which appellant relies for reversal as to this point, were decided prior to the enactment of article 1985, and therefore are not applicable.

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

Affirmed.
      other cases see samp topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON et al.
    (No. 5737.)
    (Court of Civil Appeals of Texas.
    March 7, 1917.
    Rehearing Denied April 4, 1917.)
    1. Evidence <&wkey;364^-ADMissiON of Mortality Tables.
    In an action for death of engineer in a railway wreck, there was no error in admitting American life insurance table of mortality sent to a life insurance agent by his company and used by him in business.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1520.]
    2. Evidence ¡&wkey;171 — Best Evidence-Railway Bulletin — Collateral to Issue.
    Where a bulletin prescribing speed of railway train was merely collateral to the main issue, the rule that the paper itself is the best evidence did not apply, and the testimony of one who had read the bulletin was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460, 528.]
    3. Appeal and Error &wkey;1050(l) — Harmless Error — Admission of Evidence — Cure by Other Evidence.
    Admission of secondary evidence of a railway bulletin was harmless, where another witness without objection testified to the same matter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    4. Witnesses i&wkey;267 — Cross-examination-Court’s Discretion.
    The manner of cross-examining a witness is largely in the trial court’s discretion.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 923-930.]
    5. Witnesses <&wkey;372(2) — Cross-Examination —Question.
    Permitting question to witness on cross-examination, “Don’t you know that if you, * * * as inspector of the track, * * * swore ties were in bad condition, you would lose your job?” held not an abuse of court’s discretion.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1193-1196.]
    6. Evidence <&wkey;544 — Expert Testimony — Condition Causing- Derailment.
    A civil engineer who was a railway expert was competent to express his • opinion as to whether condition of track and ties would cause derailment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig.,§ 2356.]
    7. Evidence <&wkey;547 — Experts — Beading Question Propounded to Expert.
    Question propounded to expert that “this track * * * was thoroughly adequate, nothing in the condition * * * to cause the same (train) to be derailed?” held objectionable as leading.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2364; Witnesses, Cent. Dig. § 849.]
    8. Appeal and Error <&wkey; 1058(2) — Harmless Error — Inclusion of Evidence — Cure by Other Evidence.
    Refusal to permit an expert to testify as to whether condition of railway track would have caused derailment was harmless, where ho had already testified in detail regarding conditions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4201.]
    9. Master and Servant <&wkey;270(16) — Action by Railway Engineer — Evidence of Warning — Materiality.
    In an action for death of a locomotive engineer, refusal to permit conductor to testify that he warned the engineer at certain stations not to run at high speed on the night of the accident was proper; the issue being as to speed at time of accident, which the witness testified was not excessive.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 926.]
    10. Witnesses <&wkey;405(l) — Impeachment — Contradiction — Immaterial Matter.
    It is not permissible to impeach a witness by contradicting him upon an immaterial matter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1273,1275.]
    11. Witnesses <&wkey;398(2) — Impeachment by Contradiction — Direct Question.
    In impeaching a witness by contradiction, he should be asked the direct question, and not one seeking to draw an inference from an inference.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1274.]

      Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
    Suit by Mrs. Gertrude Johnson, adminis-tratrix, and others, against Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appealed.
    Affirmed.
    Page & Jones, of Bastrop, for appellant. S. L. Staples, of Smithville, and Orgain & Maynard, of Bastrop, for appellees.
   JENKINS, J.

Frank Johnson, deceased, was an engineer upon appellant’s train, and was killed October 9, 1914, in a wreck on said road. Appellee Mrs. Gertrude Johnson brought this suit for herself and the children of herself and Frank Johnson, deceased, alleging that the engine upon which the deceased was engineer was derailed by reason of the negligence of appellant in the construction and maintenance of its track at the point of derailment; specifically alleging that said track wa's negligently constructed; that the rails were defective and badly worn and insufficient to sustain the weight and pressure of the engine, and that the ties were old, rotten, weak, unsafe, split, water-soaked, spongy, too small to support the engine, and spaced too far apart. From judgment in favor of appellees, as to the amount of which there is no complaint, the appellant has appealed and assigns numerous errors.

There was no error in permitting the introduction of the American life insurance table of mortality. The same was shown by the witness Saunders to have been sent to him by the Great Southern Life Insurance Company of Houston, of which he was the agent, and that he used the same in his business as insurance agent, and that he had been engaged in that business for six or seven years.

Appellant assigns error upon the court’s permitting the witness Carter to testify, over its objection, that a bulletin had been issued by-appellant, limiting the speed of the train upon which Johnson was killed to 45 miles an hour; that this bulletin was in the office of appellant at Smithville, in Bastrop county, Tex., where he had read the same. The objection made to this testimony was that the bulletin itself was the best evidence. This rule does not apply where the document testified about is not the basis of the suit, but is merely collateral to the main issue. Heidenheimer v. Beer, 155 S. W. 355; Larrabee v. Porter, 166 S. W. 405; Dalhart Real Estate Agency v. Le Master, 62 Tex. Civ. App. 579, 132 S. W. 860. Even had the court committed error in the admission of this testimony, it would have been harmless in the instant case, for the reason that it was proven by another witness, without objection, that 45 miles an hour was the limit prescribed by the railway company for the train upon which Johnson was killed. Had it not been true that appellant’s bulletin referred to by the witness prescribed this speed, we take it that appellant would have shown that fact in its motion for a new hearing. No such allegation was made in said motion.

The sixth, seventh, eighth, ninth, and tenth assignments of error relate to the manner of cross-examining J. H. Pruett, appellant’s roadmaster. The question propounded was:

“Don’t you know that if you were to come into this court, now occupying the position you do as inspector of the track to see that the ties are all sound, and if you swore ties were in bad condition, you would lose your job?”

This question, in substance, was repeated three times to this witness. The objection to the question was that it was an attempt to insult, browbeat, and degrade the witness. To all of the questions the witness answered, in substance, that as it was his business to constantly inspect the road, and to report to the company any defect that he found in the ties, that if he should now swear that the ties were rotten it would show that he had failed to discharge his duty to the company, and that he ought to be discharged, if such were the fact, but that this fact would not cause him to swear untruthfully with reference to the condition of the track. The matter of cross-examining a witness is largely in the discretion of the trial court, and we cannot say that the court abused its discretion in this instance to the material detriment of appellant.

Appellant assigns error upon the refusal of the court to permit the witness J. A. Thanheiser to answer the following question:

“This track at that point was thoroughly adequate, nothing in the condition of the ties or anything at the point of derailment of the train to cause the same to be derailed?”

To which the witness, if permitted, would have answered: “No-, sir.” It was shown that he was a civil engineer, and an expert as to railroad building, and was competent to give his opinion. Railway Co. v. Thompson, 75 Tex. 501, 12 S. W. 742; Railway Co. v. Waller, 27 Tex. Civ. App. 44, 65 S. W. 210; Railway Co. v. Sage, 43 Tex. Civ. App. 38, 94 S. W. 1075. It does not appear from the record what objection was made to this question. It was objectionable as being leading, but appellant was not materially injured by the action of the court in sustaining appellees’ objection to this question, for the reason that the witness had already testified in detail as to the condition of the road at the point of derailment. We quote from his testimony as follows:

“I examined where the engine left the track. I am confining the answer to the immediate vicinity, right where the derailment occurred, where the engine left the track. The ties were in sound condition. They were sound. The track at that point was in good condition. It was in good condition. In my opinion. as an experienced railroad man, it was sufficient to bear the weight of such a train as Johnson was pulling, adequately so, for that purpose, provided he handled the engine and train properly. In my career of 20 years as a railroad man, since I have been superintendent, it is my purpose to go to every railroad wreck of any consequence on my division. I am the man, on whom the railroad company usually relies to determine the cause of wrecks that happen on my division. That is part of my business. The weight of the steel at that point was 85 pounds to the yard. It was laid down new in the spring of 1913. Eighty-five pound steel is considered good, heavy steel. It is recognized as heavy rail. The heaviest used in Texas is 90 pounds to the yard. This track at that point was thoroughly adequate. Nothing in the condition of the track or ties or anything at the point of derailment to cause the derailment of the train.”

The witness further testified that in his judgment, judging from the distance that the train went after leaving the rail, it was running at the time of derailment between 55 and 65 miles an hour.

Appellant assigns error upon the refusal of the court to permit the witness Massie to answer the following question:

“On account of the dangerous condition of the night, did you not warn the engineer on the night he was killed, at Smithville, Taylor, and Granger, and say to him that on account of the dangerous condition of the night he should not run his train at a high rate of speed?”

To which question, if permitted, the witness would have answered:

“An old man is supposed to have more discretion than a young man. A conductor of a train, as a rule — it is necessary for him to take every means possible to insure the safety of his train. If you have a freight engineer, not .in the habit of pulling a train, it is necessary to take every precaution possible to operate the train. He was a younger man than me, and I instructed him. I did not want the train to run at a high rate of speed aiiywhere. I would be responsible for the train, and I am telling the truth. I warned him at Smithville, Taylor, and Granger.”

The witness Massie was the conductor upon the train. Johnson had been operating a freight train, and had had but limited experience in running a passenger train. Smithville was where this crew took charge of this train. The argument of appellant is that if the conductor warned the engineer at Taylor and Granger, after leaving Smithville, the presumption would be that he had been running the train in excess of the speed allowed after leaving Smith-ville-and Taylor. This was an immaterial inquiry. The point at issue with reference to the speed of the train was as to whether he was running it in excess of the limit at the time of the derailment, and this witness testified that he was not. It is not permissible to impeach a witness by contradicting him upon an immaterial matter; but, if this testimony had been admitted, it would not have contradicted the witness Massie, because he was not asked as to whether the train had exceeded its speed between Smithville and Taylor, or between Taylor and Granger. Had appellant desired to prove that fact, it should have asked the witness the direct question, and not have sought to draw an inference from an inference; that is to say, the only effect of the testimony would have been to infer from the warning that the engineer had been running the train too fast between Smithville and Taylor, and between Taylor and Granger, and therefore he was probably running it too fast at the time of the derailment.

Finding no reversible error in the record, the judgment' of the trial court is affirmed.

Affirmed,
      <J&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes