text:
    WELLS FARGO & CO. EXPRESS v. POWELL.
    (No. 5483.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    Rehearing Denied June 23, 1915.)
    1. Carriers <&wkey;165 — Loss or Shipment — Declared Valuation — Charges—Sufficiency or Evidence.
    Evidence in an action against an express company for the value of a trunk and contents lost in transit held, to sustain findings that plaintiff’s wife, on tendering the shipment to defendant, declared its value to be $300, and that defendant charged a rate proportionate thereto.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 729, 730; Dec. Dig. &wkey;165.)
    2. Appeal and Error <&wkey;1056 — Harmless Error — Exclusion of Evidence.
    In an action against an express company for the loss of a shipment in transit, the exclusion of a copy of a letter from plaintiff to his attorneys, wherein he made a statement in conflict with his wife’s testimony as to the charges paid on the shipment, was harmless, where the court, though rendering judgment for plaintiff, found contrary to such testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. i&wkey;1056J
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by Joe Powell against the Wells Fargo & Co. Express. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Hightower, Orgain & Butler, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Singleton & Nall, of Kountze, for appellee.

       Writ of error pending in Supreme Court.

   MOURSUND, J.

We adopt the following statement of the case made by appellant:

This suit was filed by the plaintiff in the county court of Hardin county on March 31, 1914, to recover of the defendant the sum of $252.25, the alleged value of a trunk and its contents shipped by the plaintiff from Zwolle, in the state of Louisiana, to Silsbee, in I-Iar-din county, Tex., on October 20, 1913. It was alleged that the defendant was a common carrier for hire, and that on said date it agreed to transport safely said trunk and contents from Zwolle, La., to Silsbee, Tex., but that defendant failed to transport said trunk and deliver it to plaintiff’s wife, the consignee, but that the trunk was lost in transit, to plaintiff’s damage in the amount stated above. The suit was therefore founded on a contract for the interstate shipment of goods.

Defendant, in its answer, admitted that it received said trunk from plaintiff’s wife, and issued to her a receipt for same, on its regular interstate form, and admitted that the trunk was never delivered to plaintiff’s wife, but that it was lost in transit between the two points, and that defendant had never been able to find same, after diligent effort.

Defendant also pleaded that the rate upon the shipment alleged in plaintiff’s petition was an interstate rate, and was based upon the value of the property tendered to it for shipment under the authority of the act of the Congress of the United States of June 29, 1906, and that its rates made in compliance with and under the terms of said statute we’re fixed, controlled, and regulated by the Interstate Commerce Commission, and that its schedule rate collected from this plaintiff on the shipment declared on was based on the value of such shipment under the authority of the tariffs filed with said Interstate Commerce Commission, as aforesaid, and that the rate on the shipment in question, no value being declared, was the sum of $1.75 per 100 pounds.

Defendant alleged in its answer that the receipt issued to plaintiff’s wife constituted the sole and entire contract between defendant and plaintiff’s wife in reference to the transportation of said trunk, and set up in defense the terms of said receipt, in which it was expressly stipulated that, since the charge for transporting said property was based upon a valuation of not exceeding $50 for any shipment of 100 pounds or less, and not exceeding 50 cents per pound for any shipment in excess of 100 pounds, unless a greater value was declared at the time of the shipment, that it was agreed that the liability of the defendant company should not exceed, in any event, the sum of $50 for any shipment of 100 pounds or less, or more than 50 cents per pound on any shipment in excess of 100 pounds, unless a greater value was declared at the time of the shipment, and unless additional charges for such value were paid, or agreed to be paid therefor.

Defendant further alleged that no value was declared by plaintiff’s wife at the time the shipment was tendered to the defendant, although defendant’s agent asked her what the value of the shipment was she desired placed upon said shipment, and that by failure to declare the value thereof plaintiff, through his wife, had agreed that the defendant should not be liable, in the event of the loss of the shipment, for more than the sum of $50.

By supplemental petition, plaintiff denied that the receipt issued by the defendant to his wife constituted the entire contract between them in reference to the shipment, and alleged that his wife tendered the trunk the value of which was sued for, together with a crate of chickens and a sewing machine, to the defendant’s agent at Zwolle, La., for shipment to Silsbee, and that defendant’s agent told her that defendant would transport the whole of said shipment from Zwolle, La., to Silsbee, Tex., for the sum of $8.36, which sum she paid him, and that after that defendant’s agent made out “some kind of receipt” and handed same to the said Carrie Powell; that the contract was made, completed, and the money paid before anything was said about a receipt, and that said agent made out and delivered to the said Carrie Powell such receipt as suited him, without in any way consulting her as to what should go in same, and that the said Carrie Powell received said receipt without examination as to any terms or conditions contained therein, and that neither the plaintiff nor his wife knew anything about the rates, rules, or regulations of the express company, or of the Interstate Commerce Commission, but that the shipment was tendered to defendant, and the value thereof fully declared, and the amount demanded by defendant for transporting said shipment was paid in cash before any receipt was executed by defendant, and without reference to any copy of written contract. Plaintiff further alleged that the receipt which was given to his wife was surrendered to defendant’s agent at Silsbee, and had never been returned by defendant to plaintiff or his wife.

In reply to plaintiff’s supplemental petition, defendant pleaded that the receipt was the sole and entire contract between the parties, and denied that plaintiff’s wife declared the value of the shipment to defendant’s agent at the time same was delivered for shipment, and also denied that the express charges paid amounted to the sum of $8.36, and alleged that said charges only amounted to $6.32, as shown by the receipt.

Judgment was rendered in favor of plaintiff for $135. Findings of fact and conclusions of law were filed.

The court found that at the time the shipment was tendered to defendant the value thereof was declared by her to defendant to be the sum of $300. By the first assignment of error it is contended that such finding of fact is contrary to the vast preponderance of the evidence. It is true that this finding is supported only by the testimony of plaintiff’s wife, whose testimony, however, is positive. On the other hand, we find that the agent who received the shipment has no recollection of the transaction, and his testimony is based upon the portion of the waybill which remained in his office. He issued a receipt to Mrs. Powell, which was delivered by her, or some one ior her, to appellant’s agent at Silsbee, but became lost in appellant’s office at that place. Said agent testified to that effect, and that he had made diligent search for the same. No copy of this receipt was retained by appellant’s agent at Zwolle when he issued it, but he undertook, although having no personal recollection of the transaction, to make a‘ copy of the receipt, which copy he attached to his depositions. The copy so made by him has no probative value, as it merely expresses his opinion of how he made out the receipt, which opinión is based upon the original document in his office designated by him as “the other end of the waybill.” From this “other end of the waybill” in his office he undertook to make a copy of the waybill delivered to the messenger, and attached such copy to his deposition. He also attached “the other end of the waybill” itself, and that is the only original instrument introduced in evidence. It shows that something was written under the word “value,” but, there being a partial erasure, we are unable to decipher the words. No explanation is made of the partial erasure. The copy of waybill delivered to messenger, as made by said agent, shows nothing written under the word “value,” but shows that something had been written there in red ink and erased. This erasure is not explained. Said agent testified that when he receives a shipment he first sees whether it is marked properly; then issues a receipt, asking the consignor to declare the value of the shipment; then he makes out the waybill covering the shipment, pasting one portion to the shipment,' retaining one portion for office files, and using the other as the waybill with the shipment. If it was his custom, as he admits it was, to have the shipper declare the value, such fact strongly corroborates Mrs. Rowell’s testimony, for he failed to give any reason for departing from his custom in this particular instance. As the receipt was issued first and delivered at once, the fact that one of the three portions of the waybill does not contain the value does not prove that the value was not declared, nor, for that matter, that it was not shown upon the receipt. The agent at Silsbee who lost the receipt testified that it was his recollection that the receipt did not show that any value was declared by the shipper. The copy of the receipt contains the following provision:

“The charge for forwarding the said property being based upon a valuation not exceeding fifty ($50) dollars for any shipment of one hundred (100) pounds or less, and not exceeding fifty (50c.) cents per pound for any shipment in excess of one hundred (100) pounds unless a greater value is declared at time of shipment, it is hereby agreed that the company shall not be liable in any event for more than fifty ($50) dollars upon any shipment of one hundred (100) pounds or less, or for more than fifty (50c.) cents per pound on any shipment in excess of one hundred (100) pounds, unless a greater value is declared at time of shipment, and additional charge for value paid, or agreed to be paid therefor.”

The entire shipment weighed 350 pounds. The sewing machine weighed 120 pounds. The trunk was weighed with the coop of chickens, and there is no testimony to show what its weight was. According to the provision above set out, had the entire shipment been lost, appellant’s liability would be limited to $175, unless a greater value than 50 cents per pound was declared by the shipper and an additional charge paid for such additional value. The rate marked on the original portion of waybill .and the copy of the portion delivered to the messenger is $1.-75. The charges, if figured according to said rate, would be $6.12, but it is admitted that Mrs. Powell paid $6.32. The portion of the official classification on file with the Interstate Commerce Commission, introduced in evidence, provides that when the value declared by the shipper exceeds 50 cents per pound on a shipment weighing more than 100 pounds, a charge for the excess value must be made of 10 cents for each $100 excess value or fraction thereof, when the merchandise rate is $3 or less per 100 pounds. In this instance the excess value, if Mrs. Powell declared the value to be $300, as she testified she did, would be $125. Such excess value would justify an increased charge of 20 cents, which, added to the $6.12, makes $6.32, the exact amount paid by Mrs. Powell. The weight of the entire shipment was 350 pounds. Defendant admitted that plaintiff paid $6.32 for the transportation thereof. If the value was not declared, the correct charge should have been $6.12. It the value was declared to be $300, the correct charge would have been $6.32.

Appellant calls attention to the fact that Mrs. Powell is an interested witness, but so are the two witnesses for appellant. We conclude that the testimony supports the finding attacked, and that appellant’s first assignment of error should be overruled.

The second finding of fact, which is to the effect that appellant accepted the shipment and charged plaintiff $6.32 freight on same, which was then and there paid, is also attacked. The proposition under the assignment relates to another question, namely, whether the value of the shipment was declared, and for statement we are referred to the one made under the first assignment of error. In view of the fact that appellant pleaded that it accepted the shipment and collected $6.32 as the charges for transporting the same, and of the further fact that the evidence introduced by it shows that the charges amounted to $6.32, we are unable to see why said finding of fact should be attacked by appellant. The assignment is overruled.

The third assignment constitutes an attack upon the judgment, the contention being that the findings of fact are unsupported by tlie evidence, and therefore the conclusion of law based thereon is erroneous. Having held the findings of fact to be supported by the evidence, it follows that this assignment of error must be overruled.

By the fourth assignment complaint is made because the court excluded a copy of a letter from appellee to his attorneys, which copy was attached to a letter written by bis attorneys to appellant’s attorneys. The copy was offered for the purpose of showing that appellee stated that the express charges paid on the shipment amounted to §6.32, which statement was in conflict with the testimony of appellee’s wife to the effect that she paid §8.36. As the court expressly found that §6.-. 32 was the amount paid, and discarded Mrs. Powell’s testimony on that point, appellant has suffered no injury by excluding the copy of letter. The theory that, if the court had admitted this copy, it would have affected his view of the credibility of Mrs. Powell’s testimony on other matters, is without merit. He found her testimony to be incorrect in regard to the amount paid, but believed what she said in regard to declaring the value, there being facts and circumstances which corroborated her testimony on that point.

By the fifth assignment it is again contended that the court should have found that no value was declared, and have rendered judgment for plaintiff for not more than §50. This matter has been fully discussed in disposing of the other assignments. The assignment is overruled.

The judgment is affirmed.
      <@^»For other cases see same topic and KT3Y-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    ARNO CO-OPERATIVE IRR. CO. et al. v. PUGH et al.
    (No. 404.)
    (Court of Civil Appeals of Texas. El Paso.
    June 10, 1915.
    Rehearing Denied June 24, 1915.)
    1. Waters AND Water Courses &wkey;>232 — Contracts — Water Right — Control or Canal.
    A contract by which two individuals agreed to make the necessary repairs on an irrigation canal to enable the irrigation company to carry out its water contracts in consideration of which they were to receive full-paid water rights for any lands owned by them under the system or which might thereafter be owned by them does not give to the individuals the right to the possession and control of the property of the company as against its officers.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 32Í, 322; Dee. Dig. <§^232.]
    2. Waters and Water Courses <&wkey;232— Contracts — Water Right — Control of Canal.
    Even if the contract could be given that construction, the right of the individuals to the company’s property would cease on their failure to perform their agreements.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 321, 322; Dee. Dig. &wkey;>232.]
    3. Waters and Water Courses <&wkey;232 — Irrigation Companies — Powers — Hltra Vires Contract — Control of Property.
    A contract by which the officers and directors of an irrigation company attempt to divest themselves of the possession and control of the company’s property and to -transfer it to individuals is ultra vires.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 321, 322; Dec. Dig. &wkey;232J
    4. Injunction <&wkey;70 — 'Corporations--Officers — Usurpation—Injunction.
    The duly elected officers of a corporation are entitled to an injunction to restrain others who claimed to he officers from interfering with the possession of the company’s property, from using an imitation corporate seal, and from making corporate minutes.
    [Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 136, 137; Dec. Dig. &wkey;70.]
    5. Appeal and Error <&wkey;262 — Questions Presented — Issues not Submitted — Exception.
    Where the facts were undisputed, and the plaintiff was entitled, as a matter of law, to the relief prayed for, Ms failure to except and assign error to the refusal of the court to submit other issues does not prevent a reversal of a decree which failed to award Mm the relief to which he was entitled.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595; Dec. Dig. <®=262.]
    6. Judgment <&wkey;251 — Applicability to Issues.
    A decree adjudicating title to lands concerning which no issue was raised in the pleadings is erroneous.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. &wkey;>251.]
    7. Judgment &wkey;21 — Validity — Uncertainty.
    A decree awarding to individuals the control and possession of the property of an irrigating company until a contract between them, and the company whereby they were to pay the corporate debts and to receive water rights in exchange therefor was fully carried out, and restraining the plaintiffs from voting stock in the corporation, of which they were found to be the owners, and which constituted a majority of the stock issued, until they should perform their contract to form a holding company, is indefinite and uncertain and incapable of performance, since there was no means of determining when the first contract was performed or what debts should be paid, and no provision for voting the stock by anybody.
    I Ed. Note. — Pov other cases, see Judgment, Cent. Dig. §§ 7, 8; Dee. Dig. <&wkey;21.j
    8. Depositions &wkey;>79 — Admission in Evidence — Possession by Attorney.
    A deposition cannot be excluded from evidence merely because it was in the possession, with the permission of the court, of the attorneys for one of the parties for one night.
    [Ed. Note.1 — Por other cases, see Depositions, Cent. Dig. §§ 202-207; Dec. Dig. &wkey;79.]
    9. Corporations &wkey;>187 — Nature—Entity.
    A corporation and its stockholders are separate and distinct entities, and the rights of the corporation are not affected by the dealings of the stockholders among themselves.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 702, 703; Dec. Dig. <S&wkey;187.]

      10. Appeal and Error <&wkey;724, 758 — Questions CONSIDERED — ASSIGNMENT OP ERROR— ■Ebbob Apparent op Record.
    Errors of law appax-ent on the face of the record require consideration regardless of the sufficiency of the assignments and brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022, 3093; Dec. Dig. &wkey;724, 758.]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Separate actions by the Arno Co-operative Irrigation Company and others against Spencer B. Pugh and others, and by Spencer B. Pugh and others against Robert G. Werner and another, which were by agreement of the parties consolidated and tried as one suit. From the decree determining the rights of the parties, the Arno Co-operative Irrigation Company and others appeal.
    Reversed and remanded.
    Hefner & Coolie and Buck & Starley, all of Pecos, for appellants. Ross & Hubbard, of Pecos, and Leslie A. Needham and John B. Dandridge, both of Chicago, Ill., for ap-pellees.
   Statement of Case.

HIGGINS, J.

The Arno Co-operative Irrigation Company, Robert G. Weiner, R. S. Johnson, and F. E. Knapp) filed suit in the district court of Reeves county against Spencer B. Pugh, John B. Dandridge, Leslie A. Needham, and I. O. Carroll, No. 1190, and the said Needham, Dandridge, Pugh, and Carroll filed a certain suit against Robert G. Werner and one Earl H. Prince, No. 1345, which said suits were by agreement of the parties and order of the court consolidated and tried as one suit. After the order consolidating said causes, the parties repleaded. The Arno Co-operative Irrigation Company, W'erner, Johnson, and Knapp filed their amended petition, complaining of Pugh, Dandridge, Needham, and Carroll, and alleged that Johnson, Werner, and Knapp were the duly elected, qualified, and acting directors and officers of the plaintiff Arno Cooperative Irrigation Company, a private corporation ; that on or about April 21, 1911, Dandridge & Pugh were the owners of 7,804 shares of the capital stock of said company, being a majority of the stock of the company. On said date said company had become heavily involved and indebted in large sums of money which it and the said Dandridge & Pugh were unable to pay, and by reason thereof the said company had become insolvent, and its assets were about to be dissipated and consumed by its creditors, and on or .about said date the said Dandridge & Pugh procured one Earl H. Prince to advance such sums of money as should be necessary to redeem the said properties of the said Arno Co-operative Irrigation Company from its creditors, and in consideration therefor transferred and assigned to said Prince the said 7,804 shares of the stock of said irrigation company under an agreement that a holding company for said 7,804 shares should be formed, and the said stock in the holding company issued to said Prince and Dandridge & Pugh in the proportion of two-fifths to Dandridge & Pugh and three-fifths to Prince, said Prince to have management and control of both said companies, to the end that he might work said properties out of debt, and at the same time the said Dandridge & Pugh transferred to the said Prince the certificate of stock in said Amo Company and all right, title, and interest therein, and turned over and delivered to the said Prince the stock book, record books, minute book, seal, and other properties of said company. The petition further alleges that, in pursuance of said agreement, Prince advanced large sums of money for the purpose of paying off the indebtedness of said irrigation company in order that it might continue its business and the exercise of its franchise; that on May 6, 1911, at a meeting of the stockholders of said irrigation company, Werner and Prince, together with J-. W. Parker, were elected as directors of the company, at which meeting Dandridge and Pugh were present and participated and acquiesced in said proceedings; that said officers continued in office until on or about February 20, 1913, when at another meeting of the stockholders Johnson, Werner, and Knapp were elected as the officers of said corporation; that Prince proceeded to organize said holding company, but before said properties could be transferred thereto certain creditors of Dandridge & Pugh instituted bankruptcy proceedings against them, and enjoined the said Prince from transferring said properties to said holding company as contemplated by said agreement; that thereafter Prince, with the consent of Dandridge & Pugh and the permission of said bankruptcy court, transferred said properties to the plaintiff Robert G. Wemer, who assumed the obligations of said Prince under said contract, subject to the injunction issued in said bankruptcy proceedings; that thereafter Dandridge & Pugh filed a suit in the superior court of Cook county, Ill., against the said Robert G. Werner, and caused an injunction to be issued restraining him from proceeding to transfer said properties to the holding company, and .thereafter the said Dandridge & Pugh continuously prevented by suits, injunction, and otherwise the carrying out of said agreement to transfer said properties to the contemplated holding company; that thereafter, and on or about December 12, 1912, after the said Prince and said Werner had paid off the debts of said irrigation company and had repaired its irrigation system, spending large sums of money therein, Dandridge, Pugh, Carroll, and Needham, for the purpose of depriving and defrauding Werner of the benefits of said agreement and for the purpose of obtaining the benefits of said advancements, forcibly entered upon and took possession of all the physical properties of the said Amo Co-operative Irrigation Company, which are described in said petition, pretending to act as officers of said company, and caused a fictitious seal of said company to be made, and caused fraudulent minute books and stock books of said company to be made and executed which they were using, and were pretending to act as officers of the said Arno Company, without right; that Johnson, "Werner, and Knapp, the real officers of said company, by said acts of appellees, were deprived of the possession of said properties, and the Arno Company was deprived of its property and the use and control thereof; that the acts of the appellees' resulted in preventing Werner from carrying out and performing the conditions of said agreement between Prince and Dandridge & Pugh, and prevented him from realizing upon the assets of said company the moneys advanced by him and three-fifths, of the profits thereof as represented by stock in said contemplated holding company.

The prayer of said petition reads;

“That upo-n final hearing hereof the plaintiff Arno Co-operative Irrigation Company recover of and from the defendants the title and possession of all and singular the above-described properties, and that plaintiff Amo Co-operative Irrigation Company have its writ of possession for said property; that the said defendants and each of them he restrained from pretending to act for or on behalf of said company, and from using a seal or purported seal of said corporation, and from in any manner interfering with plaintiffs in the management and control of the said company, or entering upon and. interfering with the use and possession of any of its said property, and from attempting to vote or exercise control over the said 7,804 shares of stock as aforesaid, and for such other relief, general and special, to which plaintiffs may be entitled and they will ever pray.”

Dandridge, Pugh, Needham, and Carroll answered, denying that Johnson, Werner, and Knapp were the officers of the Arno Company; admitted use of the seal and minute book of the Arno Company, and claimed to be its duly constituted and acting officers ; admitted and alleged that they were in possession of the irrigation company’s system and operating same, and denied the appellants’ right to recover possession of said system; alleged that they were in possession and operating said system under and pursuant to a contract theretofore, on January 8, 1910, entered into by and between said Arno Company and said Dandridge & Pugh, whereby Dandridge & Pugh, in consideration of the company’s agreement to issue to them certain water rights under said system, agreed to maintain said system free from debt until the happenings of a certain event, viz., the event named therein, which should entitle the water right owners to the management of said system, in performance of which contract Dandridge & Pugh had expended, in improving, maintaining, and operating said company’s system, in excess of $40,000.

The foregoing statement of the contents of appellees’ answer is copied from their brief. Their pleadings are very voluminous, and we assume that it correctly states the substance of their answer. It concluded with this prayer:

“Wherefore, premises considered, defendants pray judgment of the court whether the said R. G. Werner can'now be heard to claim or herein assert .any right, title, or interest in or to all or any portion of the stock of the Arno Co-operative Irrigation Company now owned and held by Leslie A. Needham, trustee, acquired from said John B. Dandridge and Spencer B. Pugh, and that said certificate No. 30 may be surrendered and canceled, and that said Werner be enjoined and restrained from asserting any claim or title thereto, and for all general and special relief at law and in equity as defendants shall be severally entitled, and that the injunction heretofore granted in said cause No. 1345 be continued in force.”

The contract of January 3, 1910, referred to in said answer reads:

“This contract entered into this 3d day of January, A. D., 1910, by and between the Amo Co-operative Irrigation Company, party of the first part, and Dandridge & Pugh, parties to the second part, witnesseth:
“That parties of the second part agree to do and cause to be done all the work necessary to keep the Arno canal system in a fair state of repair, such as to enable the company to carry out its water contracts with all persons to whom water contracts are deeded until such time as 85 per cent, of the water rights of the company are disposed of in accordance with its by-laws. And said parties of the second part agree to do all of said work and pay for the same and meet all other expenses necessary for the purpose of keeping said system in repair for delivery of water under its contracts until the time above stated, and to hold said company absolv-ent from any obligation whatsoever on account of necessary carrying expenses which they agree to maintain.
“In consideration therefor the company agrees that the parties of the second part shall have the right to receive from the company fully paid up water rights on any land under said system belonging or which may belong to them without charge, provided the parties of the second part shall be obligated to turn back to the treasury of the company for delivery to purchasers one share of stock of the company for each acre of water rights deeded upon their direction under this contract; and parties of.the second part shall have the further right, as further consideration for their agreement herein, to receive and accept from the company any water rights on other lands which they may request, which water rights shall be deeded to them upon such terms which may hereinafter be provided by the board of directors. It is understood and agreed, however, that the company shall keep in reservation at all times sufficient water rights to meet any and all obligations which it shall have assumed at the market price of such water rights, it being the intention of the parties hereto that the said company be kept by second parties free from debt to the time the holders of water rights assume control under the terms of the by-laws, which each of the parties hereto has read, and of which they take notice.”

The) undertaking of Earl H. Prince to Dandridge & Pugh reads:

“Chicago, Ill., April 21, 1911.
“To Dandridge & Pugh, Chicago, Ill.: This is to state to you in writing that in consideration of my having advanced you certain sums of money and having received from you for same an assignment of 7,500 shares in the Arno Co-operative Irrigation Company, also a deed conveying to me your interest in 9,000 acres of land in Reeves county, Texas, subject to the existing incumbrances thereon, I .agree to organize a stock company, to be a holding company for the above properties and to furnish such moneys as are required to redeem the properties which I select out of your holdings and to retain for myself three-fifths of the stock, and to deliver to you two-fifths of the stock in all of the above properties, and to develop the above properties to the best of my ability. If after inspection I decide not to go further, I agree to reconvey the above properties upon my being reimbursed for money advanced and expended by me. But the assignment of the above shares being absolute, if' the property meets my approval after inspection, I also agree that I will use my best efforts to provide capital for undeveloped lands, and agree to not enter into any other company by which I might make a profit out of either land or water in which every other shareholder in this company did not share equally in pro rata as his interests appear.
“[Signed] Earl H. Prince.”

The stipulation under which Prince transferred to R. G. Werner the stock of the Arno Co-operative Irrigation Company reads:

“It is hereby stipulated and agreed by and between the parties hereto by their respective counsel that Earl H. Prince may dispose of and transfer all of his right, title, and interest in and to the property specified in the petition of the petitioning creditors and of the receiver filed herein to Robert G. Werner, of Chicago, Ill., and without prejudice, however, to the rights of any of the parties hereto; it being understood and agreed that said Werner shah acquire the liabilities as well as the rights of said Prince, and stand in no better position in said matter than said Prince would have stood had he not disposed of or transferred his interest therein without prejudice to any and all in-junctional or other orders entered herein, and that said Prince, in making said disposition and transfer, shall be considered as in no way violating any injunction or order entered herein. Dated Chicago, Illinois, August 8, 1911. Sherman M. Booth, Counsel for Petitioning Creditors. Moses, Rosenthal & Memons, Counsel for Receiver. David K. Tone, Counsel for Alleged Bankrupts, Dandridge & Pugh. Carna-han, Elsdon & Slusser, Counsel for Earl H. Prince.”

The injunction in bankruptcy referred to in the pleadings, special issues, and judgment reads:

“In the Matter of John B. Dandridge and Spencer B. Pugh, Individually, and as Copart-ners as Dandridge & Pugh, Alleged Bankrupts, No. 18880.
“This cause coming on to be heard upon the petition in bankruptcy filed herein, and the petition of Hattie O. Cooney for the appointment of a receiver, and certain restraining orders therein prayed for, and it appearing to the court that if notice of the application for said restraining orders is given to said alleged bankrupts or to said Earl H. Prince, or to said Robert G. Werner, or J. E. Randall, or either of them, or to the Arno Co-operative Irrigation Company, or their agents or attorneys, that they will take steps to cause the property of said alleged bankrupts in their possession, custody, and control to be removed, concealed, conveyed, transferred, or secreted so that the effect of said restraining orders will be unavailing and ineffectual:
“Now, therefore, it is ordered and decreed that said Earl H. Prince, his agents and attorneys, be, and they are hereby, restrained and enjoined from making any sale, transfer, conveyance, incumbrance, or other disposition of or parting with possession of any or all certificate or certificates of stock of the Arno Cooperative Irrigation Company owned by said alleged bankrupts or in which they have some interest, and received by the said Earl H. Prince from them or from any other person holding the same in trust or otherwitee of or the said alleged bankrupts, and from in any manner concealing, removing, destroying, or otherwise parting with possession of any and all papers, contracts, or documents or other instruments relating to transactions between the said Earl H. Prince, his agents and attorneys, and the said alleged bankrupts, their agents ou attorneys, or in which the said alleged bankrupts, have any interest whatsoever, including the record books, stock books, minute books, and other books of the Arno Co-operative Irrigation Company ; that said Earl H. Prince, his agents and attorneys, be and they are hereby enjoined from making any sale, transfer’, disposition of, or parting with possession of any property whatsoever belonging to said alleged bankrupts, or in which they have any interest whatsoever.
“It is further ordered that the said Earl H. Prince, Robert G. Werner, and J. E. Randall, and their agents and attorneys, and each of them, be and they are hereby enjoined from causing the property of the alleged bankrupts or of the Arno Co-operative Irrigation Company to be sold, transferred, conveyed, incumbered, or otherwise disposed of in any manner whatsoever, until the further order of the court in the premises.”

At a meeting of the stockholders of the Arno Co-operative Irrigation Company held May 6, 1911, Earl H. Prince, R. G. Werner, and J. W. Parker were elected directors of the corporation, at which meeting Dandridge and Pugh were present, participating and acquiescing therein, as alleged in the petition, and on February 20, 1918, at another meeting, Werner, Johnson, and Knapp were elected directors of the company. Johnson was also elected president and treasurer thereof, Werner vice president and assistant secretary, and Knapp, secretary.

The petition of Dandridge & Pugh in the superior court of Cook county, Ill., against E. H. Prince and R. G. Werner, for injunction, and the injunction issued thereon, were offered in evidence; the prayer of said petition and the injunction order thereon being as follows:

“May it please your honors to grant unto your orators the people’s writ of injunction to be directed to the said Earl H. Prince and Robert G. Werner, restraining them, their agents and attorneys, from in any manner or form assigning, transferring, disposing of, or incumbering the shares of capital stock of the Arno Cooperative Irrigation Company or the water rights thereof, or any part thereof, or interests therein, held by them, or either of them, or incurring any liabilities against said company, either as officers or individuals, until the further order of this court.
“John B. Dandridge,
“Spencer B. Pugh,
“Complainants.”
“State of Illinois, Cook County — ss.:
“The People of the State of Illinois to Earl H. Prince and Robert G. Werner, and Tour Attorneys, Solicitors, Agents, and Servants, and to Each and Every One of Them — Greeting:
“Whereas, it hath been represented to the honorable, the -, one of the judges of the superior court of Cook county, in the state aforesaid, on the part of John B. Dandridge and Spencer B. Pugh, complainants, in their certain bill of complaint exhibited before said judge, and filed in said court against you, the said above-named defendants, Earl H. Prince and Robert G. Werner, among other things, that you are combining and confederating with others to injure the complainant touching the matters set forth.in said bill, and that your act-ings and doings in the premises are contrary to equity, and good conscience, and the said judge having under his hand entered indorsed upon said bill an order that a writ of injunction issue ■out of said court, according to the prayer of said bill: We therefore, in consideration thereof, and of the particular matters in said bill set forth, do strictly command you, the said above-named defendants, Earl H. Prince and Robert G. Werner, and the persons before mentioned, and each and every one of you, that you do absolutely desist and refrain from in any manner or form assigning, transferring, disposing of, or incumbering the shares of capital stock of the Arno Oo-operative Irrigation Company or the water rights thereof, or any part thereof, or interest therein, held by you or either of you, or incurring any liabilities against said company, either as officers or individuals, until this honorable court, in chancery sitting, shall make other order to the contrary. Hereof fail not, under penalty of what the law directs.
“To the sheriff of said county, to execute and return in due form of law.”

The case was submitted upon special issues, which, together with answers of the jury thereto, read:

“No. 1. The contract entered into between Dandridge & Pugh and Prince provided that when Prince came to Reeves county he could select out of the holdings of Dandridge & Pugh such part of the properties described in said contract as he desired. The properties included the shares of capital stock in the Arno Co-operative Irrigation Company and Dandridge & Pugh’s interest in 9,000 acres of land in Reeves county. Q. Did Prince elect to take, in addition to the shares of capital stock in the Arno Cooperative Irrigation Company, Dandridge & Pugh’s interest in all of said land? Answer: No.

“No. 2. Did Prince elect to take any part of Dandridge & Pugh’s interest in the 9,000 acres of land? If so, what part? Answer: Accepted part known as the Spanjer land.

“No. 3. Did Prince or Werner furnish such moneys as were required to redeem the properties that you find that Prince elected to receive? Answer: Tes.
“No. 4. Has Prince or Werner endeavored to form a holding company for the properties that Prince elected to accept, and to deliver to Dan-dridge & Pugh two-fifths of the stock in same? Answer: Yes.
“No. 5. Did Dandridge & Pugh by any act of theirs prevent Prince or Werner, or both of them, from organizing a holding company, and delivering to Dandridge & Pugh two-fifths of the stock therein? Answer: No.
“No. 6. Were Prince or Werner, or both of them, prevented from forming said holding company, and delivering to Dandridge & Pugh two-fifths of the stock therein, by an order of injunction issuing out of the federal court of Illinois? Answer: Yes.
“No. 7. Did Prince or Werner have a reasonable time in which to organize a holding com-anv, convey properties selected thereto and de-vet or cause to be delivered to Dandridge & Pugh two-fifths of the capital stock thereof prior to the issuance of any injunction against them or either of them? Answer; No.”

The following judgment was entered.:

“And it appearing to the court from the findings of the jury and from the uncontroverted facts adduced in evidence and from the pleadings confessed that the plaintiff the Amo Cooperative Irrigation Company should be adjudged to have title to the Arno Co-operative irrigation system, including the dam, canals, etc., and that plaintiffs should be denied possession of said irrigation system, including the dam, canals, etc., until such time as plaintiff Werner shall have cleared the property of indebtedness and organized the holding company as hereinafter provided, and delivered to Dandridge & Pugh their interest in the stock of same, it appearing to the court that the defendants are in possession thereof under a valid and binding contract with the Arno Co-operative Irrigation Company, dated January 3, 1910, and that the defendants should be enjoined from acting as officers of said Arno Co-operative Irrigation Company, and that the defendants should not be enjoined from interfering in the management of said irrigation system, to wit, the dam, canals, etc., and that the defendants should be restrained from voting the stock of said corporation, and that the injunction heretofore granted in cause No. 1345 restraining the' plaintiffs from transferring, assigning, or otherwise disposing of the stock of the Arno Co-operative Irrigation Company and from voting same should be perpetuated, but modified to the extent that the said injunction shall continue only until such time as the defendant Werner shall carry out the terms of the contract entered into between Dandridge & Pugh and Prince, by organizing a holding company, freeing the property from any indebtedness, and clearing the property of the Arno Co-operative Irrigation'Company from any lien, mortgage, or other incumbrance, and clearing what is known as the Spanjer land from any debt, lien or incumbrance.
“It is therefore ordered, adjudged, and de-' creed by the court that the title to the irrigation system known as the ‘Amo Co-operative Irrigation System’ and the' legal and equitable title to what is known as the Spanjer lands be and the same are hereby decreed in the Arno Oo-operative Irrigation Company, and that the Arno Co-operative Irrigation Company be, and it is hereby, denied possession of said irrigation system, including the dams, canals, etc., until such time as the contract between said Arno Co-operative Irrigation Company and Dandridge & Pugh, dated January 3, 1910, shall have been executed and fully performed, and that said contract be and the same is hereby adjudged and decreed to be valid and binding upon the Arno Co-operative Irrigation Company. The said lands known as the Spanjer lands are described as follows, to wit: [Here follows description of Spanjer lands.]
“It is further ordered, adjudged, and decreed by the court that the defendants, and each of them, be restrained from acting as officers of the Arno Co-operative Irrigation Company, and from using the minute books or seal of said Arno Co-operative Irrigation Company, and restrained from voting or exercising any control over the shares of stock represented by the certificate formerly held by Dandridge & Pugh, and now held by the plaintiff Werner: and
“It is further ordered, adjudged, and decreed by the court that the plaintiffs Werner, Johnson, and Knapp be and they are hereby restrained from transferring, assigning, pledging, hy-pothecating, or otherwise disposing of any .of the shares of the capital stock of said Arno Co-operative Irrigation Company that were transferred by Dandridge & Pugh to Prince or Werner under or in pursuance of their contract with Prince, or any of the shares of stock represented by the certificate of stock issued in lieu of the stock transferred by Dandridge & Pugh to the said Prince, being represented by certificate No. 30, or from in any manner voting same, and from conveying any assets of or imposing any liability or indebtedness upon said company, except so far as it may be necessary to vote same in the organization of and conveying to the holding company, and in discharging the indebtedness of said Arno Co-operative Irrigation Company, said injunction or restraint to remain in full force and effect until such time as the plaintiff R. G. Werner shall have organized a holding company and shall have paid and had released all liens, mortgages, or other in-cumbrances upon the property of the said Arno Co-operative Irrigation Company, of date subsequent to May 6, 1911, including a certain judgment in favor of D. S. Robbins, and shall have paid off and had released all liens, mortgages, or other evidences of indebtedness against what is known as the Spanjer land above described, and shall organize a holding company, the purpose of which shall be to take over all of the stock procured from Dandridge & Pugh directly or through Prince or otherwise of the Arno Co-operative Irrigation Company and the Spanjer land, and shall have deeded to said holding company all of said stock of the Arno Co-operative Irrigation Company free from any liens, mortgages, or other incumbrances, and shall have deeded to the said holding company the Spanjer land free from any lien, mortgage, or other evidence of indebtedness, and shall have issued to Dandridge & Pugh, or their assigns, certificates of stock representing 40 per cent, of the capital stock of said holding company.”

Certificate No. 30 referred to in the judgment was issued in the name of R. G. Werner, and called for 7,804 shares of the capital stock of the Arno Co-operative Irrigation Company. This 7,804 shares represented the stock owned by Dandridge & Pugh in the Arno Co-operative Irrigation Company on April 21, 1911, and which was by them on said date transferred to Prince as by the appellants alleged, and as above set forth.

Appellants offered in evidence the stock book of the Arno Co-operative Irrigation Company, showing all the certificates of stock issued and transferred by said company, and particularly certificate No. 7, issued May 13, 1910, to Dandridge & Pugh, for 9,894 shares, marked “Surrendered and canceled” ; certificate No. 18, issued out of certificate No. 7, April 21, 1911, to Earl H. Prince for 7,804 shares, marked “Canceled, transferred to certificate No. 30, this February 13, 1913, J. W. Parker, Secretary”; stub of certificate No. 30, showing the issuance of said 7,804 shares from certificate No. 18 to R. G. Werner; and the said certificate No. 30 was also introduced in evidence, showing said 7,804 shares standing in the name of R. G. Werner. The entire stock book was offered in evidence showing all stubs and canceled certificates, and showing that none of the appellees owned any stock in said company.

The appellees, on or about December 14, 1912, took forcible possession of the properties of the company from appellants.

This appeal is presented by Werner, Johnson, Knapp, and the Arno Co-operative Irrigation Company.

Opinion.

Under a number of assignments complaint is made of that portion of the decree which denies to the company and its officers the possession of its properties until such time as the contract between the company and Dandridge & Pugh, dated January 3, 1910, shall have been executed and fully performed. The court in its decree recites that appellees were in possession under said contract, and in their brief appellees assert that under this contract such possession was rightfully denied the appellants. It is a complete reply to the reason thus assigned to say that there is nothing whatever in the contract of January 3, 1910, by which the company surrendered its possessory right to its properties and vested same in appellees.

And, even if it did, the admitted and undisputed facts show that Dandridge & Pugh had failed to comply with the obligations which they assumed in the contract. This, of itself, would have authorized the Company to resume its possession. The inception of the rights of Prince and Werner as stockholders arose out of the failure of Dandridge & Pugh to do what they had agreed with the company to do.

Furthermore, under the terms of this decree, Dandridge & Pugh could forever prevent the company from regaining its right of possession by the simple expedient of declining to execute and perform their obligations thereunder. This portion of the decree is erroneous. Its effect is to take from the company and its officers the possession of its properties, and, in effect, vest its management and the control of its affairs in appellees. If the officers and directors of the company had, in fact, attempted by contract to divest themselves of such management and control, it would have been ultra vires, as was pleaded by appellants in their supplemental petition. This decree, in effect, has undertaken to compel the company and its officers to do what they could not lawfully have done by their voluntary act. Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222. But this question of ultra vires is of no importance, for there is nothing in the contract by which it could be held that the company had surrendered its right of possession to Dandridge & Pugh or had agreed to surrender to them the control and management of its corporate affairs.

Under another assignment complaint is made of the failure of the court to enter judgment restraining appellees from interfering with the possession of appellants and from using a fictitious seal, minute books, etc., and from, pretending to act as the officers of the company. This assignment is well taken. The facts show that at a meeting of the stockholders of the company held May 6, 1911,' Prince, Werner, and Parker were elected directors, and at a subsequent meeting held February 20, 1913, Werner, Johnson, and Knapp were elected directors. Johnson was also elected president and treasurer, Werner vice president and assistant secretary, and Knapp secretary. This being true, and, as above shown, Dandridge & Pugh having no right of possession, they should have been restrained from interfering with the possession of the company and its officers ; they should also have been restrained from using an imitation of the true seal of the company, making pretended minutes, and from acting as its officers. The judgment does restrain them from acting as officers.

This counter proposition is urged by appellees in reply to this assignment:

“The refusal to render a judgment for a particular party on the verdict of a jury on special issues is not error unless it appears from the verdict that all issues of fact made by the pleadings and the evidence wer.e determined by the jury, where such party is not entitled to a judgment, as a matter of law, solely on the special issues found, and reserves no exception and assigns no error to the refusal of the court to submit further issues.”

It is true there is no finding of the jury upon the question here raised, but the facts were undisputed, and the court was not authorized to make findings contrary thereto. There was no issue raised by the evidence to submit to the jury in respect to this matter. As a matter of law, appellants were entitled to the relief here indicated.

The eighth assignment complains of that portion of the decree which undertakes to adjudicate the title of the Spanjer lands, upon the ground that no issue in respect thereto is raised by the pleadings, and therefore such adjudication is without pleading to support it. This assignment is well taken.

Under another assignment it is objected that the decree is indefinite, uncertain, contradictory, and incapable of performance. This is true, and it would require additional lawsuits to settle controversies which would inevitably arise out of this judgment if it were permitted to stand. Who would determine when the contract of January 3, 1910,. had been executed and performed? Who would determine what debts the plaintiffs could properly be required to pay under its provisions? The injunction restrains Werner from voting the stock which he holds in the company, except as may be necessary in the organization of the holding company and making conveyance thereto. Dandridge & Pugh were not the owners of it, and its decree does not undertake to revest in Dan-dridge & Pugh the title to this stock. Who will vote that stock at stockholder’s meetings, and why should Werner not do so, unless and until he is decreed not to be the owner thereof? He has the right to vote it, unless it should be recovered from him by Dandridge & Pugh, or is disposed of by him.

Upon trial appellants offered in evidence the deposition of certain witnesses taken before a notary public in G'ook county, Ill., and same was excluded upon objection of appellees. The bill of exception taken to its exclusion recites that counsel for appellee objected for the reason that the deposition was gone into on a previous trial, and excluded because of defects which appear on its face, and it was admitted that said deposition was filed in court on the 8th day of December, 1913; that on the evening of the Sth day of December, 1913, it was in the possession of William 0. Rigby, of Chicago, of counsel for appellants’ in another suit on trial, alone in the hotel; that appellees and their counsel went to the hotel and made repeated requests to get said deposition about 11 o’clock at night on the 8th day of December, 1913, at which time Mr. Rigby promised to let counsel for appellees have same by 12 o’clock; that counsel for appellees went to the hotel at 12 o’clock, and Mr. Rigby said he could not possibly get through with it before 2 o’clock, and would not promise to deliver the deposition to appellees’ counsel without permission of Judge Starley, from whom he got same. And counsel for appellees further objected to said deposition because it was alleged that same showed on its face evidence of having been tampered with, and of insertions having been made; and thereupon it was further admitted that, after said deposition was used in said trial on the 8th day of December, 1913, being another suit between the same parties, wherein said deposition was used by stipulation, same had been continuously in the possession and control of the clerk of the district court of Reeves county, Tex., and had not been out of such possession, and counsel for both parties had been permitted only to inspect same while in the possession of such clerk, and, further, that no motion to quash said depositions, or to retake same, or to suppress same, or any other objection thereto, was made by appellees prior to announcing ready for trial in the above-styled and numbered cause.

The original deposition is before the court, and the objection that it bears upon its face evidence of having been tampered with and insertions made therein is frivolous. The further objection that it should have been excluded because it was in possession of an attorney for one night requires no comment to demonstrate its lack of merit. The exclusion of the deposition was error.

In conclusion, it may be remarked that the entire decree entered in this case evidences a confusion of the issues between the company and its officers on the one part and Dandridge & Pugh on the other and of issues and controversies arising between Werner and Dandridge & Pugh, as individuals, respecting stock ownership. Upon retrial the court below should bear in mind that the rights of the company and its officers are in no wise concerned with the controversies arising between Werner and Dandridge & Pugh, as individuals. The stockholders and tlie company are separate and distinct entities. The stock transactions between the individuals do not alter the rights of the company.

In view of another trial, we deem it advisable to say that in order for a decree, in the case as consolidated, to properly adjudicate the rights of the parties, it must keep matters complained of by the corporation, to wit, its right to possession and control of its irrigation system, separate and distinct from those of the other parties to the suit, to wit, the right to vote the shares of stock, et cet-era.

What has been said above renders it unnecessary to discuss those assignments to which specific reference has not been made. The questions presented thereby are controlled by the views expressed.

Objection is made by appellees to the sufficiency of a number of assignments and manner in which they are briefed. The errors here pointed out are errors in law apparent upon the face of the record, and require consideration, regardless of the sufficiency of the assignments and brief.

Reversed and remanded for further proceedings in accordance with this opinion.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digescs and Indexes

      <&wkey;)Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    SOUTH TEXAS DEVELOPMENT CO. v. MANNING.
    (No. 5499.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 2, 1915.
    Rehearing Denied June 23, 1915.)
    1. Adverse Possession &wkey;>115 — Instructed A^erdict — Evidence.
    Where, in an action of trespass to try title, wherein defendant claimed title by adverse possession, the evidence was conflicting on whether he had been in continuous undisputed possession of the part of the premises under fence for the requisite period, the court properly refused to instruct a verdict for plaintiff for all of the land, though it conclusively appeared that he had no title to the remainder of the premises.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 334, 691-701; Dec. Dig. &wkey;115.]
    2. Adverse Possession <&wkey;100 — Prescriptive Title — Possession oe Land.
    The occupancy of a part of uninclosed land by the true owner, though only for the purpose of cutting timber, carries with it the constructive possession of such part of the whole tract as is not in the actual occupancy of one claiming title by limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. &wkey;> 100.]
    3. Adverse Possession <&wkey;47 — Prescriptive Title — Continuity oe Possession.
    The occupancy of uninclosed land for the purpose of cutting timber under authority from the true owner was sufficient to break the continuity of possession of an adverse claimant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 234, 235; Dec. Dig. <§=> 47.]
    4. Adverse Possession <&wkey;114 — Presortp-tive Title — Sufficiency of Evidence.
    Evidence in an action of trespass to try title to land, part of which was inclosed and part uninclosed, wherein defendant claimed title by adverse possession, held insufficient to show that defendant had title to the uninclosed land.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 6S6; Dec. Dig. &wkey;>114.)
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by the South Texas Development Company against Walter Manning. From judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    John W. Lewis, of Houston, for appellant. O. W. Nugent, of Conroe, for appellee.
   CARL, J.

Appellant states the case thus:

“This was an action of trespass to try title, filed by the South Texas Development Company against Walter Manning for 384.3 acres of land, a part of the Texas & New Orleans Railroad Company survey No. 15, in Montgomery county, Tex. Appellee, Walter Manning, answered, disclaiming as to all of said land sued for, except 160 acres out of said tract, which he claimed by statute of limitations of 10 years, and setting up by definite description the 160 acres claimed by Mm. On the trial, appellant showed a perfect record title to the éntire 384.3-acre tract sued for. The court charged the jury that the uncontroverted evidence showed the appellant to have the legal title to all of the land described in its petition, and is entitled to recover of the appellee, unless such recovery is defeated by his plea of limitation. The case was tried with the aid of a jury, who returned a verdict for appellee for 160 acres of land, and judgment was entered accordingly for said appellee.

The period during which it is claimed Manning’s limitation title matured began about September 6, 1902. It is admitted that one Ed Rayne and Joe McDonald, at different times during the 10-year period, were living upon the premises, the difference of opinion being as to the capacity in which they were in possession. Appellee claims that McDonald got permission from his tenant, E. A. Smith, to stay in the house while he, McDonald, was cutting ties on this 160 acres and other lands. McDonald bought Manning’s little crop of sweet potatoes at the time he went into, possession of the house and premises in 1906. Appellee admits this, but claims that McDonald became his tenant through permission from Smith, whom he had placed in charge of the place. It is not denied that McDonald was working under authority of the record owner in cutting cross-ties.

Appellee testified, on the trial, substantially, to the following facts:

He says that he married in March, 1902, and that he went upon this land about the 6th of September of that year; that he went upon it on his own hook. “I did not buy a claim from any one. There was no one claiming it that I knew of. If Mr. Payne was claiming the improvements, I did not know it; I did not know who put the house there.” He says that he went upon it with the intention of acquiring the title by 10 years’ limitation; that he offered to give Ed Payne $25 for a quitclaim deed to the place if he and his father could show any substantial claim; that he would simply pay them for their rights, but that Payne did not claim to have any rights and he did not buy it. There were four or five acres under fence at that time, part of it grown up with hushes. There was a little box house on it in 1902, and he says he lived there continuously about five years, raising a crop in 1903, consisting of potatoes, corn, cotton, sorghum, etc., and in 1901 and 1905 he made a crop there. “It was in 1906 that I moved my wife over to my father-in-law’s and did contract work. My father-in-law’s name was Uriah Smith. I moved over there about January 1, 1906, and did contract work that year, and did not live on the place at all that year, but Mr. Smith cultivated the place for me and raised a crop of goobers, oats, and sorghum, and used it as a .general pasture. No one lived on the place that year, but Mr. Smith put in his crop at the usual time in the spring of the year. In 1907 I did not live on the place, but cultivated it myself. I lived at Mr. Smith’s in 1907. * * * I had seven or eight acres in cultivation and under fence. I don’t remember whether it was 1907 or 1908 that I lived at Uriah Smith’s, but to the best of my recollection it was 1907 that I tore the old house down and moved it over to Uriah Smith’s. I lived at Uriah Smith’s that year, but cultivated the place myself. In 1908 there was no house on the place, but I cultivated it myself. In 1910 I built a new house. After the South Texas Development Company people were in there surveying, I built the new house. In 1909 I lived with Smith, but I cultivated the land and along in the summer — about August, I think, of 1910 — I built the new house and have been living there continuously since. When I stated in my evidence that I had lived on the place continuously for 11 years, I meant that I had held possession of the place and claimed it and made it my home, and had my stock there. I moved off the place and lived off of it one or two years, but I cultivated it. I rented the place only one year to Mr. Smith. * * * It was in 1906, while I was doing contract work, that I was told that Ed Payne had moved into the house on this place. He lived there only a short time, I don’t remember how long. I knew my father-in-law would take care of my interest. Ed Payne did not live there over two or three months. T came back in February, 1907, and cultivated the land myself that year.” He says, further, that his father-in-law, Smith, as his agent and tenant, gave Joe McDonald permission to move into the house; that he cultivated the land himself that year, but was not living there. He says that it was later than June, 1907, when McDonald moved into the house, because he sold him his sweet potato crop growing around the house, but he does not remember how long he lived there, but thinks it was during the summer and fall of that year. “ * * * I did not give Mr. McDonald pei-mission to move into the house, but he got permission from Mr. Smith. I was working at Waukegan as a day laborer, but I was working my place. I had 7 or 8 acres in cultivation and when I would catch up with my crop I would work out as a day-laborer. Although I was working part of the time right there at the house, McDonald got permission from my father-in-law to move into the house. My father-in-law is now dead. While McDonald lived in this house he was cutting ties off the entire tract, including my 160 acres, cutting them for the Kirby Lumber Company, or for Mr. Ben-nette, who I suppose was the agent for the Kirby Lumber Company. I did not know this timber belonged to the Conroe Lumber Company; I knew they claimed it. I did object to McDonald cutting ties on this 160 acres, and went to town to try and find out if I could stop him, and my lawyer told me I did not have any right to; that I would have to wait until the ten years run out. I went on this land and set up my claim, * * * and knew it would be mine if I could stay there 10 years. I did not know the Conroe Lumber Company was claiming this land, did not know anybody was claiming it but me, but I heard the Conroes were claiming it. * * * Ed Payne stayed there tw-o or three months, probably. I moved some lumber there to improve the place, and afterwards moved it away, but no one notified me to move it. I sold the lumber to old man Goss. * * * Joe McDonald * *' * did not pay any rent. He agreed to take good care of the place while there, said he wanted it only for a camping place and did not want it very long.”

Joe McDonald says that he recognized Will Conroe as the owner of the land while he was there cutting ties; that he knew al-1 of the lines of the 384-acre survey, section 15, Texas & New Orleans, formerly owned by the Con-roe' Lumber Company and now owned by the South Texas Development ’Company, by reason of having cut the timber off of said tract during the years 1907 and 190S, and was governed by the lines of the tract. He says he lived there from June, 1907, continuously until March, 1908. He made ties for the Kirby Lumber Company, but never did cultivate the land while living there. He says Manning cultivated about one-fourth acre, or less, in potatoes, in the summer of 1907, and denied that he had any arrangement with Walter Manning about living on the land.

Briefly stated, and in view of the finding of the jury, it may he said that Manning occupied the premises for more than 10 consecutive years, in so far as the land in cultivation, or fenced, was concerned ; but it is practically undenied that McDonald, under authority from the legal owner, cut the timber from the remainder of the land, and that for that purpose, at least, for a considerable time he was there and in possession to such an extent that Manning consulted his lawyer as to whether he could stop him from cutting the timber. He was advised that he could not do so, and acquiesced in the advice of his lawyer by remaining quiet in order to finish out the 10 years by which he expected to mature his title. While the evidence is conflicting as to the continuous, undisputed possession of Manning, as to the house and improved part of the premises, and the finding of the jury may be taken as settling that question, in so far as this case is concerned, in appellee’s favor, the evidence is equally certain and conclusive that Manning did not dispute the possession and evidence of ownership' of the legal title holders, nor is there any doubt that the true owners were in possession of all of said land, except the improved part, for the pur-Ijose of cutting the timber. Payne was there, and McDonald was there, and he was there to cut the timber, and did cut tbe timber, under authority from the owner and without any authority from, and even over the protest of, the appellee in this case.

The first assignment of error complains of the action of the court in refusing to instruct a verdict for the plaintiff below for all of the land. This cannot be sustained, because the Question of appellee’s right to the land he had under fence and actually occupied was one for the jury to pass upon.

Admittedly, this land was not under fence, except the small field; and although the evidence of the defendant below shows that he had surveyed the 160-acre tract and defined the boundaries, it was not under fence. And it has often been held in Texas, in matters of this kind, that occupancy of a part of the uninclosed land by the true owner would carry with it the constructive possession of such part of the whole tract as was not' in the actual occupancy of the one claiming by limitation. Freedman v. Bonner, 40 S. W. 49; Combes et al. v. Stringer et al. (Sup.) 167 S. W. 218; Evitts v. Roth, 61 Tex. 81.

Applying the above rules, as laid down in said authorities, the appellee in this case was not in possession of all of said tract of land for a continuous period of 10 years as against the true owner; and the true owner, admittedly being in possession of a part of the land, even though only for the purpose of cutting timber, was in possession constructively of all of said tract not actually inclosed by Maiming. We have held, in Glover v. Pfeuffer, 163 S. W. 984, that adverse possession, as meant by the statute, need be only as against the true owner, but in this ease the adverse possession of McDonald and Payne, certainly as to McDonald, was under authority from the true owner and, as a matter of course, such occupancy would break the continuity of possession of that part not inclosed and held by Manning. It, therefore, follows, from what we have said, that the second assignment will be sustained; but the matters complained of in the third and fourth assignments will be overruled because they are in conflict with our ruling in the Glover v. Pfeuffer Case, supra.

The fifth assignment, which complains that the verdict is not supported by the evidence, is also sustained.

When Joe McDonald went upon this land and began cutting cross-ties, he unquestionably did so, not only without the consent of Manning, but over his protest; for there can be no doubt that he objected to it, because he went and conferred with his lawyer to ascertain if he could stop this trespassing, in so far as the timber was concerned. Possession for the purpose of cutting and removing the timber was possession as much as cultivating the land itself would have been. Appellee knew that Will Conroe, or the Con-roe Dumber Company, was claiming this land, and the county records proclaimed them at that time as being the true owners thereof. He knew that McDonald was cutting the timber under claim of right from some of the owners, the land having changed hands several times during the period he claims to have matured the title by limitation. If they had ousted him of possession of the field and house, as it is contended they actually did, it would have been no more effective in so far as stopping the running of limitation is concerned, than was the undisputed possession of the outlying land for the purpose of cutting the timber. The question, however, of possession of the inclosed land and house by McDonald so as to break the continuity of limitation was one for the jury. The amount of the land so held is uncertain and undefined.

Therefore the judgment is reversed, and the cause remanded for trial.
      <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WABTHALB, J.

text:
    GULF NAT. BANK v. JOHNSON.
    (No. 457.)
    (Court of Civil Appeals of Texas. El Paso.
    May 27, 1915.
    Rehearing Denied June 24, 1915.)
    Garnishment <&wkey;8&wkey;PBOCEEDiNGS — Venue-Waiver.
    A bank domiciled in J. county, and garnishee on a petition in a cause originating in H. county, and which under Rev. St. 1911, art. 283, on failure to make answer, was subject to a commission addressed to the county judge or to the clerk of county or district court requiring him to cite the garnishee to answer the writ, by filing its answer in the cause in H. county asking for a dismissal on the ground of privilege to answer in the county of its residence, thereby waived such privilege.
    [Ed. Note. — IPor other cases, see Garnishment, Dec. Dig. <&wkey;>S4.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Petition in garnishment by Walter F. Johnson against the Gulf National Bank, with exception and answer by the garnishee. Judgment for petitioner, and the garnishee brings error.
    Affirmed.
    J. S. Wheless and Smith, Crawford & Mead, all of Beaumont, Campbell, Sonfield, Sewall & Myer, of Houston, and C. D. Galloway, of El Paso, for plaintiff in error. Hunt, Myer & Teagle, of Houston, for defendant in error.
   WABTHALB, J.

This cause originated in the Harris county district court by the filing by W. F. Johnson, defendant in error, of a petition in garnishment against Gulf National Bank, plaintiff in error, reciting that theretofore in a certain cause in that court in which he (W. F. Johnson) was plaintiff and A. H. Whited, W. T. McKallip, Marrs Mc-Bean, W. D. Gordon, George W. Newman, J. H. Putnam, Jr., and Geo. W. Hooks, were defendants, plaintiff recovered judgment against said defendants for $4,883.94, interest and costs; that nothing had been paid on the judgment, and that it was still in force, and malting other recitations not necessary to recite ; that plaintiff has reason to believe and did believe that G-ulf National Bank of Beaumont, Jefferson county, Tex., is indebted to the defendants in the original suit, naming them, and that some of the defendants, naming them, were owners of shares of stock in said bank or had interest therein, and prayed for a writ of garnishment against said bank. Thereafter the garnishee bank filed in the district court in which the suit was pending an exception and answer to the writ of garnishment, reciting its domicile to be in Jefferson county, that it was not required to answer the writ of garnishment because of its residence in a county other than the county in which the proceeding was pending, and that no commission had been issued requiring the officer to cite the garnishee to answer, as required by article 283, Revised Statutes, and prayed that the writ of garnishment be dismissed. In the event the writ was not dismissed the garnishee made answer reciting that it had on deposit in its bank at Beaumont to the credit of some of the defendants certain sums of money named, and that one of the defendants was the holder and owner of ten shares of the capital stock in the bank, describing same; that it had been obliged to employ the service of attorneys to prepare and file answer and asked that a fee, naming the same, be allowed.

’ The record discloses no other proceeding in the trial court than the entry of judgment in favor of appellee against the garnishee for the aggregate amount of money shown to be in the possession of the garnishee bank and owed to each of defendants, directing the seizure and sale as under execution of the ten shares of stock in the bank in satisfaction of the judgment, and allowed the garnishee an attorney’s fee and taxing same as costs. The judgment recites that the case came on to be heard in term time, “and also came defendant, Gulf National Bank, garnishee, by its attorneys of record, and announced ready for trial.”

Plaintiff in error presents one assignment of error as follows:

“The court erred in not sustaining the exception and plea as set forth in its answer to the writ, and in overruling the same and entering judgment upon the answer made upon the solo and only condition that said exception should be overruled.”

The statute provides the form of the writ of garnishment and the manner of its service and return. Article 283, Revised Statutes 1911, provides:

“If the garnishee resides in some other county than that in which the proceeding is pending, and fails to make answer to the writ, the court shall, on motion of plaintiff, issue a commission addressed to the clerk of the district court, the county judge, the clerk of the county court, or any notary public of the county in which the garnishee is alleged to reside, or by requiring him to cite such garnishee to answer the writ of garnishment.”

The statute then provides the procedure to be had under the commission, and that, when duly served, the nonresident garnishee shall make his answer before the commissioner appointed. But in this case the garnishee did not await the filing of the motion for the commission and the appointment of the commissioner, but filed a proceeding in the court in which the suit was pending to quash, the garnishment writ, and based its proceeding or motion upon the alleged fact that the commission had not been issued, and at the same time filed its answer in the court. The only question presented, it seems to us, is: Did the court have jurisdiction to then render judgment on the answer? We believe that he did. • Immunity from the suit in Harris county, away from the garnishee’s place of residence in Jefferson county, was a privilege personal to the garnishee which the garnishee could waive. The motion for the commission would lie or be necessary only in the event the garnishee “fails to make answer to the writ,” but the garnishee filed a motion to quash the writ, 'a motion that would not lie, and then answered, and by doing so waived its personal privilege to have the commission issued and make its answer before the commissioner.

It may be that the garnishee could not waive the service of the writ of garnishment, but the writ was served, and that question is not before us. The court acquired jurisdiction over the property in the hands of the garnishee by the service of the writ of garnishment, and the garnishee waived its privilege to answer in the county of its residence before the commissioner by filing an answer to the writ in the court in which the proceeding was pending, in Harris county. Walter A. Wood M. & R. Machine Co. v. Edwards, 9 Tex. Civ. App. 537, 29 S. W. 418; Rood on Garnishment, § 237.

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


author: FLY, C. J.

text:
    DYESS et al. v. ROWE.
    (No. 5474.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 19, 1915.
    Rehearing Denied June 23, 1915.)
    1. Specific Peefoemance &wkey;>86 — Contract— Actions.
    Where deceased breached a contract to make a will in consideration of services, suit may be maintained either for specific performance or on a quantum meruit.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 223, 224; Dec. Dig. <&wkey;> 86.]
    2. Limitation of Actions <&wkey;46 — Running of Statute.
    Limitations against actions on contracts to make a will in return for services begin to run from the death of the person for whom the services are rendered.
    [Ed. Note. — Eor other cases, see Limitation of Actions, .Cent. Dig. §§ 240-253; Dec. Dig. &wkey;> 46.]

      3. Wills <&wkey;68 — Contract to Make.
    A contract to make a bequest in return for services may bo either express or implied; but, whore an implied contract is relied on, it must be alleged and proven, since a mere expectation of remuneration by a bequest, unless induced by the actions or language of the person benefited by services, is insufficient to show contract to make a bequest.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. &wkey;68.]
    4. Wills i@=3G8 — Agreements to Make — Actions.
    In a suit for breach of an agreement to make a will in plaintiff’s favor, recovery can be had only on an express contract, where such contract was alleged.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. &wkey;G8J
    5. Husband and Wife &wkey;>80— Contracts of Wife.
    An agreement by a feme covert to make a bequest in favor of another is not binding on her, unless ratified by her after she became dis-covert.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 327-330; Dec. Dig. &wkey;S0.J
    6. Wills &wkey;>58 — Contracts to Make — Actions — Evidence.
    An agreement to make a will in return for services must be fully and satisfactorily proved.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. &wkey;58.]
    7. Wills <&wkey;58 — Agreements to Make — Evidence — Sufficiency.
    In an action for breach of an agreement to make a will in claimant’s favor, evidence held insufficient to establish any agreement under which claimant rendered services.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. &wkey;58.]
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Claim by S. P. Rowe against the estate of Mrs. Josephine Rowe. It was approved in the county court, and Sydney P. Hill appealed. Pending appeal he assigned his interest to H. A. Cline and another. From a judgment of the district court granting the allowance, the assignees appeal.
    Reversed and rendered.
    Durrett & Dyess and Edmund Heinsohn, all of Temple, and H. A. Cline and John A. Barclay, both of Wharton, for appellants. . D. F. Rowe, Leonard Doughty, and John A. Bal-lowe, all of Houston, and G. G. Kelley and W. L. Hall, both of Wharton, for appellee.

       writ of error pending in Supreme Court.

   FLY, C. J.

Appellee sought to prove a claim for $7,000 against the estate of Mrs. Josephine Rowe, whose estate was being administered by appellee. He alleged in his petition to the county court:

That John T. Rowe was the husband of Josephine B. Rowe, and uncle of appellee; that for years John T. and Josephine were invalids; that appellee, at their special request, took charge of their business and conducted the same for them “and gave them every attention required by them for their personal comfort; that he and his wife waited on and served the two old persons for years and received no compensation for the same, but, in consideration therefor, John T. Rowe and wife promised and agreed that whichever survived were going to devise to claimant tl^eir property as aforesaid, and, in expectancy of such bequest, claimant proceeded as aforesaid, and did and performed the services as aforesaid, among many more not herein alleged, these allegations being merely partial, and made for the purpose of partially elucidating the account aforesaid.”

Again it was alleged:

“And claimant shows that it was the intention of said John T. Rowe and wife or the survivor to devise same to claimant, and it was agreed and understood by and between them that at their death the said property should belong to claimant in consideration of his and his wife’s said services and others, as aforesaid; and the said John T. Rowe made a will to his wife, bequeathing to her his total interest in all their property, all of which was community property (so that in law the same would have descended to her exactly as devised had said John T. Rowe died intestate; they having no children or descendants thereof), but with the understanding that the survivor should will said property to claimant.”

It was also alleged that John T. Rowe died on July 10, 1912, and Mrs. Josephine B. Rowe died about two months thereafter; that after the death of her husband Mrs. Rowe ratified the agreement to devise the property to ap-pellee, but was prevented from so doing by a relative who would inherit from her if no will was made.

The evidence shows that John T. Rowe and his wife each made to the other a will bequeathing each to the other all their property. 1-Ie died first, and of course all of thé property became that of the surviving wife. She died without making another will, and, having no children, the property, on her death, passed to her nearest of kin, a nephew and two nieces. Appellee bought the interest of the two nieces and opened up administration on the property. Sydney P. Hill, the nephew, inherited one-half of the estate. The claim was approved in the county court, and Hill appealed, and pending the appeal sold all of his interest in the estate to H. A. Cline, except the portion theretofore assigned to A. D. Dyess for his legal services. In the district court judgment was rendered in favor of appellee for $3,000, and from that judgment this appeal has been perfected.

The right to sue on a contract to bequeath property is conceded, and the suit may be one of specific performance, or on a quantum meruit for the services performed for the deceased person. Limitation against such contracts would begin to run the date of the death of the person with whom the contract was made and for whom the services were performed. Borland, Wills and Administration, p. 26 et seq.; Mod. Law Cont. § 650; Wyche v. Clapp, 43 Tex. 543; Stevens v. Lee, 70 Tex. 279, 8 S. W. 40; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486; Raycraft v. Johnston, 41 Tex. Civ. App. 466, 93 S. W. 237; Waddell v. Waddell (Tenn.) 42 S. W. 46; Clark v. West, 96 Tex. 437, 73 S. W 797; Von Carlowitz v. Bernstein, 28 Tex. Civ. App. 8, 66 S. W. 464.

The contract to bequeath may he express or implied, as in the case of other contracts ; but, in case of an implied contract to bequeath (that is, where the circumstances manifest an understanding by both parties that compensation will be made by will for services rendered), such contract must be alleged and proved. Mere expectation of remuneration by a bequest, unless superinduced by the conduct, actions, or language of the person benefited by the services, is insufficient, and the services will be deemed voluntary and gratuitous. The rules of law applicable to the subject of contracts generally apply to agreements to devise or bequeath property.

In this case an express contract to bequeath the estate to appellee was alleged, and it could be sustained only by evidence of an express contract. Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613. The express contract must have been made by Mrs. Rowe after the death of her husband, for the contract made by her, if any, was made while she was a feme covert and would not bind her, and as intimated in Jordan v. Abney, hereinbefore cited, the mere continuance after the husband’s death of pre-existing conditions would not constitute it a contract on her part. It follows that Mrs. Rowe could not be bound by any contract, unless it was made after the death of her husband.

It is a delicate matter to allow a contract of the character of the one under consideration to prevail, for the dead man cannot tell about the affair, and the testimony obtained is usually in favor of the living, for the latter are usually the prime favorites as against those whose tongues are closed in death. Such being the condition of affairs when such a contract is made the basis of a recovery, it must be fully and satisfactorily proved.

The evidence fails to show an express contract' on the part of John T. Rowe and Josephine B. Rowe to bequeath to appellee their property or any part thereof, as a review of the testimony will indicate. J. H. H. Dennis, a witness for appellee, testified that Mrs. Rowe, after her husband’s death, told him that she wanted to give a part of her property to her niece and part to appellee. The witness was the attorney of John T. and Josephine B. Rowe, and often discussed their business affairs with them, and drew their wills to each other for them. Mrs. Rowe was undecided as to what disposition to make of her property after her husband’s death. Mrs. Rowe never told Dennis that she had promised to leave the estate to appellee. He did not testify that he had communicated any of the narrated facts to appellee.

Dr. Andrews testified:

“I never heard them say who they were going to give all of their property to, but I have heard them say that Pinkney (appellee) was the only relative, and that he had lost lots of time and taken up lots of time, but that he would never lose anything for it; that he would be paid for it in the end; talked a great lot about it. They both said that. I heard them a great many times. The old lady repeated that, about two weeks before she died, to me. She asked me to get Pinkney to come down there and fill up a cistern and mow her yard, and she told me then, right on that day, that Pinkney would never lose anything. That was after the old man died. * * * She told me then she expected to pay Pinkney in the end.”

There was not one word, about a promise to devise her property to appellee. He testified further:

“I never heard them say they were going to leave their whole estate to anybody. I don’t think I ever spoke to Pinkney Rowe about that thing in my life until after the old man’s death.”

P. 6. Brooks testified that he had heard the old couple say that when they died they intended to give him all their property. He did not state that he ever communicated what they said to appellee.

Armstrong testified:

That the old couple told him they intended to leave appellee well “fixed.” “I didn’t hear them say as to whether they were going to leave all of the property to him or what portion of it. I don’t remember telling Pinkney about these conversations; about what the old people had stated about their going to remember him. I never said anything to him about it.”

Appellee did not swear that he had any contract with the Rowes in regard to the disposition of their property. He merely testified:

“In rendering these services, I expected to receive remuneration for it.”

Evidence that the Rowes stated to third persons that they intended to leave their estate to appellee did not constitute a contract to so leave it, especially as such statements were never communicated to him.

In the case of Steele v. Steele, 161 Mo. 566, 61 S. W. 815, William Steele had taken the plaintiff into his family and reared him as a son and from time to time stated that he intended to leave plaintiff his property. This was held not to bind William Steele to bequeath his property to the plaintiff. The court adopted the following statement of plaintiff’s counsel as a right conception of the law as applied to such cases:

“We are aware of the fact that in the trial of this case the burden rested on the plaintiff and it was his duty to present to> the chancellor evidence so strong, cogent, and convincing as to remove and exclude every doubt that decedent made the contract; but such evidence may consist in the declaration and acts of decedent, with their attending circumstances.”

In the Kentucky case of Gross v. Newman, 50 S. W. 530, a nephew of the decedent had taken the latter to his house and cared for him for eight years, and the nephew claimed that his uncle had agreed to pay him by a bequest. The court held that it would “not enforce such a contract between relatives, against the estate of a decedent, unless the proof is clear and decisive.” In that case, the nephew expected his uncle to bequeath a portion of the estate, and was justified in so thinking by the declarations of decedent, “but,” says the court, “it is by no means clear that the intestate obligated himself to make this disposition of his property, or that there was any agreement that this should be done in consideration of his board by appellant.” The case is quite similar to this, and the language of the Kentucky court is peculiarly appropriate to this case.

In the case of Newton v. Field, 98 Ky. 186, 32 S. W. 623, it was testified by witnesses that a decedent had promised to remember the plaintiff in her will and promised to provide for plaintiff on account of services rendered by the latter, but the court held that the testimony was insufficient to establish a contract whereby the decedent had promised to make compensation in her will for such services. The court said:

“But the bare statement that she would be provided for or remembered in the will of testatrix will not justify the conclusion that testatrix made a contract by which she would make a devise equivalent in value for the services of the appellee, and, having failed to do so, the courts of the country should make provision for her out of the testatrix’s estate. That appellee performed services for the decedent is not questioned, but, if entitled to remuneration, she should have amended her petition and asked for the value of her services upon a quantum mer-uit.”

In this case, as in that, the evidence of declarations of the decedents as to what they intended to do as to remunerating ap-pellee for his services did not constitute a contract to bequeath property to him.

In the Illinois case of Collar v. Patterson, 137 Ill. 403, 27 N. E. 604, the statements made by the decedent were much stronger than those sworn to in this case, and they were made in the presence of the plaintiff, and yet the court held:

“This evidence not only fails to show an acknowledgment on his part to pay a debt, but clearly shows that the deceased did not understand that any indebtedness existed in claimant’s favor against him, in the sense of a legal liability.”

So in this case the decedents only expressed their gratitude to appellee for his services and a desire to recompense him, but there was no admission of a contract to pay him through a will, or that there was any legal liability upon their part to pay a debt to appellee.

It must be kept in mind that appellee pleaded an express contract on the part of the decedents to bequeath property to him. There is not one item ’ of testimony tending to show that any such contract was ever dreamed of by decedents. The most that can be obtained from the testimony is an implied contract to pay for services and was not pleaded, and, if it had been, a claim based on such a contract would be barred by limitations within two years. If there was only an implied contract to pay for the services, there could have been no contract to pay through a will, and limitations would begin to run from the time of performance of the services.

John T. Rowe and wife may have intended to bequeath their property to appellee, and he may have labored for them with the expectation; but, unless there was an express understanding and agreement between them that a will would be made in his favor to recompense him for his services, under the pleadings there could be no recovery. Appellant cites the case of Wright v. Wright, 99 Mich. 170, 58 N. W. 54, 23 L. R. A. 196, opinion by the Supreme Court of Michigan, to sustain the contention that, in a case where no certain kind of contract is declared upon, the claimant could recover on proof of an implied contract. That may be true, but no court has held that “a court of equity, of conscience, and of right” will permit recovery of a claim based on allegations of an express contract, upon proof of an implied contract. We know of no rule that would permit a court, when an appeal is made to its equity powers, to disregard the pleadings 'and ignore that old undisturbed rule that allegation and proof must correspond.

Appellee contends that “one of the highest powers of a court of equity, and which had more to do with bringing this character of jurisprudence into existence, is to see to the express carrying out of such contracts” ; but, if this sweeping assertion could be taken as well founded, still in our zeal to enforce such contracts we should not lose sight of that salutary rule:

“But the evidence in all such cases should be clear, distinct, and positive. Where a claim of this kind is not asserted until after the alleged debtor’s death, and particularly where it covers a long period of time, the staleness of the claim is calculated to awaken suspicion as to its validity ; hence nothing but unequivocal evidence of its truth will satisfy the plainest demands of justice and good faith.” Woerner, Am. Law Adm. pp. *824, 825.

There is evidence in this case strongly tending to show that appellee did not have any understanding with his uncle and aunt as to being remunerated for his services, for in 1909 he executed his promissory note to John T. Rowe for $1,000, payable in a year. That note was given after many years of the alleged services had been performed. The evidence also showed that appellee had sworn before the trial of this cause that his services were performed gratuitously, “just like a son would for a father.”

The judgment is reversed, and judgment here rendered rejecting the claim of appellee.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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