author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MAPLES.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Appeal and Error (§ 882) — Submission op Issues — Invited Error.
    Where, in a personal injury action, the court submits the issue of defendant’s negligence in charges requested by defendant, and it does not appear that the charges were requested on condition that a peremptory charge be refused or requested after the court read its general charge, error, if any, in the fact of submission of the issue of negligence, being invited, could not be complained of by defendant on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    2. Trial (§ 139) — Refusal op Peremptory Instruction — Evidence.
    Where, in a personal injury case, it could not be said in view of the entire evidence that there was no testimony sufficient to sustain a verdict for plaintiff, a peremptory instruction for defendant was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    3. Appeal and Error (§ 1002) — Scope op Review — Conflicting Testimony.
    The solution of conflicting testimony rests exclusively with the jury and not with the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    4. Release (§ 17*) — Fraud—Injury to Servant.
    Where an injured railroad employs was induced to sign a release, on the assurance of a physician in defendant’s employ and attending to the employé’s injuries, that the injuries were merely temporary, and that he would recover in two or three weeks, when, in fact, his injuries were permanent and serious, this amounted to fraud invalidating the release, though the physician and defendant’s claim agent, who repeated the physician’s statements, believed them to be true.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.]
    5. Fraud (§ 1) — Definition.
    Generally speaking, “fraud” is any act, omission, or concealment, which involves a breach of legal duty, trust, or confidence, justly reposed, and is injurious to another, or by which an undue and unconscientious advantage is taken of another.
    [Ed. Note. — For other'cases, see Fraud, Cent. Dig. §§ 1-7; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 3, pp. 2943-2954; vol. 8, p. 7666.]
    6. Trial (§ 191) — Instructions—Assumption of Facts.
    In an employé’s action for injuries, an instruction is not objectionable, as assuming facts in dispute, merely because it presents plaintiff’s theory of the case authorized by the facts and circumstances in evidence, and tells the jury that if they believe from a preponderance of evidence that the same constituted negligence as defined by the court, to find for plaintiff, unless they find for defendant under instructions presenting its theory of the accident.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.] ■
    7. Trial (§ 252) — Injury to ' Servant — Instructions — Applicability to Evidence.
    In a railroad employé’s action for injuries from falling off a flat car on which he was working, failure to submit defendant’s claim that plaintiff went upon the car voluntarily, and hence was guilty of contributory negligence was not error, where the 'undisputed evidence showed that plaintiff was employed by defendant’s foreman for the specific duties in which he was engaged at the time of his injury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    8. Trial (§ 244) — Injury to Servant — Instructions — Undue Emphasis on Facts.
    In an employé’s action for injuries, an instruction which, in stating the converse of a proposition presented in a previous instruction, repeated the facts relied on by plaintiff to constitute defendant’s negligence was not erroneous as unduly impressing the jury with plaintiff’s side of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    9. Trial (§ 252) — Injury to Servant — Instruction — Assumption of Risk.
    In a railroad employé’s action for injuries from falling off a flat car where he was engaged in handing down buckets of water for use in extinguishing a fire, an instruction that plaintiff assumed all the risk of being injured while discharging the duty ordinarily “incident to his employment” was not erroneous for failure to use the expression “incident to his duty as a section hand” in place of the words quoted, where it appeared that at the time of his injury plaintiff was not employed as a section hand, but was expressly employed to assist in extinguishing a fire.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    10. Trial (§ 256) — Injury to Servant — Instruction — Duty to Request.
    Where the instruction on assumption of risk in a railroad employé’s action for injuries properly presents assumption of ordinary risks, but does not take into consideration the fact that the particular risk was extrahazardous, though such is the fact, defendant should request a charge specifically covering the matter.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.] '
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by O. F. Maples against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for plaintiff, defend-
    ant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas, and Spell & Sanford, of Waco, for appellant. Collins & Cummings, of Hillsboro, G. L. Black, of Austin, and V. L. Skurtleff, of Hillsboro, for appel-lee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. ICey-No. Series & Rep’r Indexes

   RASBURY, J.

Appellee recovered verdict and judgment for $5,500 against appellant for damages for personal injuries received while in the employ of appellant and as a result of its alleged negligence, and from which judgment this appeal is taken.

The complaint alleges that appellee was engaged by appellant, with other “section hands,” to assist in extinguishing a fire which was burning cotton stored upon appellant’s platform in the town of Abbott, and that in doing so he got upon a “flat” car containing tanks of water, at the command of his foreman, in order to pass buckets of water to other employes of appellant upon the ground, who, in turn, emptied same upon portions of the fire; that about 2 a. m. he ceased work, and, while attempting to alight from the car upon which he was working, he lost his balance and jumped to the ground to avoid falling and received the injuries' complained of, which resulted proximately from the failure of appellant to furnish appellee a light to work by, the time being night, and the place •dark.

Appellant met the charge of negligence by the general denial and special pleas asserting that appellee was a volunteer in the work in which he was engaged, assumed risk, contributory negligence, and a settlement and release by appellee of all claims against appellant for his alleged injuries. Appellee met the answer of appellant by a general denial and special plea asserting the settlement and release was obtained by the fraud of appellant and its agents, and that the amount received by appellee, to wit, $39, was grossly inadequate to his injuries.

In reference to the facts it may be said that it is practically undisputed that appellee, with others, was set to work by appellant’s section foreman in an attempt to extinguish or control a fire then burning cotton upon appellant’s platform in Abbott, and in an effort to protect appellant’s property and track, and that at the time when appellee received his injuries he was engaged in the discharge of such duties. Both appellant’s foreman and the appellee testified that it was under the direction of the foreman that appellee went to work, and no witness denied it. From about 8 o’clock p. m. until about 2 a. m. appellee’s duty was to carry water and pour same upon appellant’s railway tracks to prevent them “kinking.” About 2 o’clock p. m. some tanks of water arrived in Abbott from Hillsboro, upon flat cars which had been arranged for in anticipation of the exhaustion of the water supply at Abbott. Without detailing why it was done, the foreman finally had the cars containing the tanks of water placed as best he could, and formed his men in a line for the purpose of lifting the water from the tank and emptying it where it would do the most good. ■ The ear upon which appellee was injured contained three tanks of water. One of the employes named Oscar Taylor, at the direction of appellant’s foreman, laid a plank between two of the water tanks, mounted the same, dipped water therefrom, and handed it,-to ap-pellee, who stood on the floor of the car between two of the water tanks, and who, in turn, passed same to the next man, and so on until it was finally used for extinguishing the fire. Just before the accident, the other employes failing to return to the car for more water, and while appellee was holding a bucket of water in his hand awaiting their arrival, appellee and Taylor commenced discussing a method of alighting from the car, if the other employes did not return. For the purpose of ascertaining whether the other men were returning, appellee attempted to “peep” around one of the water tanks which obstructed his view of the direction in which the men were, and while so doing he slipped, lost his balance, and, to prevent falling, jumped to the ground below, and received the injuries complained of. Appellee testified that it was quite dark at the place he was working, and the space on which he had to stand between the tanks of water was small, and that the duties he had to perform could not be safely performed without a light, and that, in recognition of that fact, appellant’s foreman had furnished him a lantern by which to work, but had removed the same just prior to the accident to be used for another purpose, and that the accident would not have occurred had the light remained or 'another been furnished. Opposed to appel-lee’s testimony was that of Volker, the foreman, Oscar Taylor, the employé working with appellee on the ear, and Drew Kennedy, all of whom positively testified that not only was a light not furnished while appellee was working on the water cars, but that a light was not necessary for the reason that the fire furnished light sufficient for one to see plainly how to perform the duties being performed by appellee, as well as sufficient light for him to safely leave the car when he quit work. We omit the facts developed by appellee upon the question of the release and his claim that same was obtained by fraud and that the sum paid was grossly inadequate. Such evidence will be stated under the second assignment of error.

Appellant’s first assignment' of error asserts that the court erred in refusing to instruct a peremptory verdict for it as requested, for the reason that the evidence discloses no negligence on its part. Appellee’s answer to this claim is that if the submission of the issue of negligence at all was error it was invited, and that the evidence in truth did authorize its admission. We think both propositions are correct. The record on appeal discloses that the issue of negligence on the part of appellant, its agents and servants, was submitted to the jury by the court in three special charges read to the jury at the special request of appellant, and fails to disclose that the three charges submitting the issue of negligence vel non had been requested on condition that the peremptory charge was refused or had been requested after the court had read its general charge. Under such conditions, the rule is that if there was error in the manner complained of it was invited, and could not be compminéd of on appeal. Without anything in the record to indicate that the action of the appellant, in thus contributing to the alleged error of the court, was conditional upon the refusal of the court to grant a peremptory instruc-turn, appellant is held to have invited it, and cannot complain. Poindexter v. Kirby Lumber Co., 101 Tex. S22,107 S. W. 42; Henry v. McGown, 140 S'. W. 1170; Railway Co. v. Rodrignez, 133 S. W. 690; Alamo Dressed Beef Co. v. Yeargan, 123 S. W. 721; Hill Connty Cotton Oil Co. v. Gathings, 154 S. W. 664; Alamo Oil & Ref. Co. v. Curvier, 136 S. W. 1132.

We are also of opinion that the evidence was sufficient to sustain the verdict of the jury. Negligence being a question of fact to be ascertained by the jury, our duty is solely to ascertain if the case presented by the record is one of which it may be said that, “from the whole case as made by the testimony, the plaintiff had no testimony upon which the jury could reasonably have found a verdict.” I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106. The record here, in our opinion, does not present such a case.

It does appear that there was a sharp and irreconcilable conflict on the material issue in the suit between appellee and the witnesses Volker, Taylor, and Kennedy. The solution of such conflict is neither the privilege nor the duty of this court, however, but the exclusive right and province of the jury. Why the jury adopted the testimony of ap-pellee and discarded that of the other witnesses is a question with which we are not permitted to concern ourselves. It has always been thought, and is no longer disputed, that those sworn to try the case and who hear the testimony and confront the witnesses are better qualified to determine the credibility and the weight to be given their testimony than are judges of appellate courts, and it is but observing settled rules when we decline to interfere with jury verdicts on the ground that the weight of the testimony is for a given side. There is a rule that permits our interference, but a discussion of same is unnecessary since this ease is not within such exception.

Appellant’s second assignment of error asserts the court below should have instructed a verdict for it, for the reason that, the execution of a release by appellee for all injuries received by him being undisputed, the testimony adduced on trial was insufficient to take the case to the jury on the issue that same was procured by the fraud of appellant, its officers or agents. Against this asserted error it is first urged that, if it was error to refuse the peremptory charge, it is not available here, because invited by appellant. The record supports this contention. In three special charges requested by appellant and by the court read to the jury, the issue of fraud vel non is submitted to the jury for their determination, without anything in the record showing that such charges were requested and allowed by the court on condition that the court refused the peremptory charge. In such cases the presumption is that all charges were requested simultaneously, and any error resulting from the giving of any of the requested charges is not available to the litigant that invites it. See authorities cited in disposing of the first assignment of error.

It is next urged and we are also of opinion that the evidence was sufficient on the issue of fraud in procuring the release to call for the submission of that issue to the jury. The evidence supporting the verdict of the jury on that issue shows that, at the time appellee jumped from the flat car upon which he was engaged in the performance of his duties, he did injure his foot, and that he first applied to it some simple home remedy, but that it was taken in charge by Dr. Jones of Abbott, about two or three days after the injury. After the lapse of about nine days, appellee’s foot becoming worse, he was sent by appellant to a hospital at Waco, traveling upon transportation furnished by appellant, and admitted to the hospital upon permit furnished by appellant. Appellee remained at the hospital 19 days, during which time Dr. Murphy, who took charge of appel-lee when he entered the hospital, examined and dressed appellee’s foot about every two days, and gave it careful attention. Appel-lee left the hospital on March 18th. On that day, and before appellee left the hospital, Dr. Murphy told him, while visiting him in one of the hospital wards, that his foot would be well in two or three weeks. Appellee believed what Dr. Murphy told him, and relied upon his statement. In attending to appellee’s injuries, Dr. Murphy did so as an employé of the appellant. About one hour after ap-pellee’s conversation with Dr. Murphy concerning his foot, A. D. Krause, appellant’s claim agent, called on appellee, who was in bed at the time, and had appellee “undo” his foot, that he (Krause) might see it. Krause also had appellee put his foot upon the floor and bear his weight upon it, stating at the time that it seemed to be getting on very well, and that appellee would be able to resume .work by April 1st. Appellee, at this point, asked Krause if he (Krause) had said anything to Dr. Murphy about his injury and what the doctor had said, and to which Krause replied: “Yes, the doctor told me you would be well in two or three weeks.” At this point Krause proposed a settlement between appellant and appellee, offering to pay $25. After some “dickering,” Krause agreed to pay appellee $39 and a return pass to the hospital in ease appellee should desire to return, which was accepted and a release executed. Appelleé believed the statements made to him by Krause, relied upon same, and would not have accepted the $39 or executed the release otherwise. Dr. Murphy did, in fact, make the statement to Krause which he repeated to appellee. Krause sought such information from Dr. Murphy, and attempted no sort of denial of it, but testified thereto himself. The case was tried nearly one year after appellee received his injuries, and more than ten months after his discharge from the hospital, and appellee’s injuries are more serious than at that time, and are permanent. He has been unable to work during said period, uses crutches, suffers intense pain almost day and night, is unable to sleep, and when in bed is compelled to rest his foot upon a pillow. At the time of the trial Dr. Murphy conceded the foot to be in much more serious condition than when appellee was discharged, but was of opinion that an examination might show that subsequent causes produced present conditions. Dr. Yaughan and Dr. Cansler testified that the injuries were serious and permanent and that the pain and suffering could only be relieved by amputation; and the former further testified that assuming that the injuries now apparent in the foot are the same that were present at the time of the injury, that a competent physician or surgeon would have detected the same upon an examination .of the kind made by those in charge of appellee at the hospital.

It has been said that fraud cannot be exactly defined so as to fit every case, but, generally speaking, “fraud is any act, omission or concealment which involves a breach of legal duty, trust or confidence, justly reposed, and is injurious to another, or by which an undue and uneonseientious advantage is taken of another.” Helium v. Smith, 18 Tex. 835; Horton v. Smith, 145 S. W. 1088. Or is “all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue and uneonseientious advantage is taken of another.” 20 Oyc. 8. We conclude that the facts inducing the execution of the release under discussion bring it within the rule quoted. Boi,h Dr. Murphy and Krause, the claim agent, represented to appellee that his injuries were slight and that he would be able to resume work in two weeks. This was a concealment, etc., of appellee’s actual condition, as it was made to appear more than a year afterwards that his injuries were permanent and could have been detected at the time the representation was made. Appellee had the right to rely upon the statements of both the physician and the claim agent, since one was the agent of the corporation which had sent him there to be treated, and the other the physician selected by his employer to attend to his ills, and in both of whom his confidence and reliance might be .justly reposed. It also appears clear that injury resulted from a reliance by appellee upon the representations of appellant’s agents, etc., since it induced appellee, in view of the subsequent developments of his injuries, to accept from appellant, in payment of such ih-juries, a sum grossly inadequate. It may be ‘further said, in substantiation of the assertion that the facts bring the execution of the release within the defined rule of fraud, that it is immaterial whether either Dr. Murphy or Krause made the statements they did make to appellee innocently, since the rule is that, even though the person making the false representations believes them to be true, that fact is unavailing, and the injured J party is entitled to relief against them if the representations made or repeated were actually false. Missouri, Kansas & Texas Ry. Co. v. Reno, 146 S. W. 207, and c. c.

The third assignment of error is overruled for ihe reason that the issues raised thereby are disposed of by what we have said in overruling appellant’s first assignment of error.

The fourth assignment of error complains of the court’s charge submitting to the jury the question of appellee’s employment at the time of the fire, whether he went upon the flat car, as claimed, to pass water from the tanks to other employes, and whether failure to furnish him a light to work by, etc., was negligence, and, if so, whether such failure was the proximate cause of ap-pellee’s injury. The criticism is that the charge assumes that appellee was employed to extinguish fires (which really is not disputed by the record); assumes that appellee was sent upon the fiat car for the purpose of passing buckets of water to other employes (which is also not disputed); assumes that the place where appellee was at work was dark and a light necessary, and that appellee, by reason of both, lost his balance and fell. We have carefully examined the charge complained of, and we are unable to see the force of the criticism. The charge in the usual and accepted manner presents to the jury appellee’s theory of the case authorized by the facts and circumstances in evidence, and instructs them that, if they believe from a preponderance of the evidence that the same constituted negligence as defined by the court, to find for appellee, unless they find for appellant under instructions presenting its theory of the accident.

The further criticism is made of the charge that it ignores the claim that appellee went upon the car voluntarily and was hence guilty of contributory negligence. It is sufficient response to this claim to say that no fact or circumstance was shown on trial that would tend to support the claim made in the pleading. On the contrary, it was undisputed that appellee was employed by appellant’s foreman and for the spedfie duties in which he was engaged at the time of his injury.

The fifth assignment complains of the manner in which the court presented the converse of the grounds upon which a verdict might be found for the appellant, the exact objection being that it was a repetition of the facts alleged by appellee to constitute negligence on the part of appellant, and by such, repetition unduly impressed the jury with appellee’s side of the case. We think the claim untenable. Just how the trial court could have presented the converse of the issues in the case without referring to the acts asserted by appellee as constituting negligence we are unable to see since it was upon those "facts the jury had to pass, and presented favorably appellant’s side of the ease. Certainly there is no such emphasis placed upon either the issues or the facts which can be said to constitute error.

The sixth assignment complains of the charge of the court, which directs the jury that appellee, when he entered appellant’s employ in the manner heretofore stated, “assumed all the risk of being injured while discharging the duties ordinarily incident to his employment,” etc. It is urged that this charge assumed that the risk incident to extinguishing the fire was incident to his duties as a “section hand.” The charge does not so make it, since it confines it to the risks ordinarily incident to his “employment,” which was in extinguishing a fire. The testimony also shows that such was his employment, appellee being but a “sub” section hand, performing such duties only when called for that purpose, and that he had not been called when he was injured to perform the duties of a section hand, but as we have said to assist in extinguishing a fire.

But it is urged that the risk assumed by appellee was in effect extrahazardous, and the charge should have gone further and told the jury as much. If a risk more burdensome than the one ordinarily incident to work in which appellee was engaged is the correct rule, and the court failed to so charge the jury, appellant should have requested such a charge. It is further urged that the charge ignores the fact that appellee was voluntarily engaged in the work in which he was injured. As we have said at another place, there is nothing in the record to support this claim.

The seventh assignment of error again brings into review the alleged errors of the trial court upon the sufficiency of the testimony to authorize the submission to the jury of the fraud of appellant in procuring the execution of the release. We have stated our views in reference to this matter, and further comment thereon is unnecessary.

The judgment is affirmed.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    ANDREWS v. OWENS, MELTON & BARKER.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.
    Rehearing Denied Jan. 8, 1914.)
    Brokers (§ 86) — Actions fob Commissions— Sufficiency of Evidence — Cause of Exchange.
    Evidence A eld to show that, not plaintiffs, But a real estate company was the procuring cause of the exchange of land made by defendant.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §| 116-120; Dec. Dig. § 86.]
    Appeal from Grayson County Court; J, Q. Adamson, Judge.
    Action by Owens, Melton & Barker against H. H. Andrews. Prom a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    Freeman & Batsell, of Sherman, for appellant. Hamp P. Abney and Jones & Has-sell, all of Sherman, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

When the record was first before us, we were of the opinion that the judgment of the court below should have been in favor of appellant instead of in favor of appellees, but concluded we were without power on any of the assignments carried into appellant’s brief to grant the relief he was entitled to. Since the motion was filed, we have again carefully considered the assignments, and have concluded that appellant’s special charge No. 15, refused by the court, should be construed as a request to instruct the jury peremptorily to find in his favor, and that we should have sustained the second assignment, in which appellant complained of the refusal of the court to give said charge to the jury.

It appeared from testimony that one Garrison, a real estate broker in Hillsboro, having been authorized by Glover to sell or exchange his lots in that city, on April 14, 1912, wrote the Russell Realty Company, real estate brokers in Sherman, to ascertain, if said company had any land near South-mayde which the owners thereof would exchange for the Hillsboro lots. Said Russell Realty Company, and appellees also, before-that time had been authorized by appellant to sell his land or exchange it for other property. April 15, 1912, the Russell Realty Company, replying to Garrison’s letter, mentioned several tracts of land, among them the one belonging to appellant, which, they said, the owners might exchange for said lots, and suggested to Garrison that he bring the owner of the lots to Sherman and look at the lands they had mentioned. Two or three days after he received the letter Garrison, having first arranged with Glover to follow him as soon as the latter returned from a trip he wished to make to another portion of the state, went to Sherman. He was accompanied by one Osborne, who wished to buy land in Grayson county. On reaching Sherman, Garrison, with Osborne, called at the office of the Russell Realty Company, and they were shown several tracts of land. It seems that the purpose of the inspection then made was to ascertain if any one of the tracts would suit Osborne. Garrison expected Glover to come to Sherman the next day, and arranged with the Russell Realty Company to then take him to see other tracts, among them being the one belonging to appellant. C-arrison and Osborne then left the office of the Russell Real- ’ ty Company, and a short time thereafter-wards met appellees Owens and Melton, and, according to the testimony of Owens, asked them “if they had any trading propositions.” Owens and Melton replied that they had, mentioning several tracts of land, among the number being the one belonging to appellant. A result of the conversation which followed between Garrison and Owens and Melton was that Owens and Melton sent for appellant and introduced him to Garrison. This introduction and what followed it, as testified to by Owens, was as follows: “I says to both of them, ‘Now, this is Mr. Andrews, who has the land for sale, and this is the man, Mr. Andrews, who has the brick property for sale. You gentlemen talk the matter over. You can describe the property better than I can and maybe you can interest each other.’ They stepped off a little ways and began to talk, and I moved toward them to see what they said about it. They talked the matter over for a considerable time, and after talking the matter over for a while some one suggested that we go home, and Mr. Garrison said he wanted to see the land in the morning. In a little while after Mm and Andrews began talking and Garrison said he wanted to see the land in the morning, Melton says, T will go out, since you want to go in the mormng;’ and Garrison says, ‘It is not necessary. I am going out that way in the morning with Mr. Russell, and will go by there and take a look at it as I go out or come back, and if I like it I will take it up to-morrow when we get back.’ That was about all that was said about the trouble, and we bade each other good evening and went home. I never knew in the morning what they did, because I thought the gentlemen were going with Mr. Russell the next morning and we would see him again. I never saw Mr. Garrison any more until the trial came up. The next I heard of the deal was a few days later. I met Mr. Andrews and asked him about the trade, and he says, T don’t know, I have not seen the (Hillsboro) property yet,’ and I asked him if he thought enough of the matter to go see it, and he said he thought he did, and a few days afterwards I saw him and asked him what he thought about the trade, and if there was anything to it or not, and he says, ‘Well, I don’t know, there might be;’ and I says, ‘You went and looked at it?’ and he said, ‘Yes;’ and I says, ‘Do you think there is any likelihood of a trade?’ and he says, ‘Yes, there might be. I thought enough of it to draw some papers to that effect, and if the papers come up all right it will be a trade;’ and I said, T am glad of it. That will count one for us this month;’ and he hesitated a little, and I says, ‘How about the commission? Was that considered in the deal?’ and he says, Well, you will have to see Bill Russell;’ and I says, What has Bill Russell got to do with it?’ and he says, ‘He claims the commission;’ and I told him, T have no recourse with him at all, • never had any business with him in my life, and don’t know him in this transaction at all;’ and I says, ‘How is that — didn’t we introduce you to the man first, and didn’t we have the place listed?’ and he says, ‘Yes, but Russell went down there, and he claims the commission.’ I says, T do, too;’ and he says, Well now, you and him for that’ I says, T have nothing to do with him;’ and it went on that way until one day I asked him, ‘Mr. Andrews, have you got the papers yet?’ and he said ‘Yes.’ I had told him before that that I was going to hold him for the commission, and he said, ‘Well, crack your whip.’ I says, T think we are entitled to it, and if we are not we don’t want it.’ He says, ‘Well, just crack your whip;’ and I says, T should like to ask you to deposit the money with the court or in the bank until the thing is settled. I will contend for my commission.’ He did not say anything then, but a day or two later he mentioned it again and says, ‘You will have to see Bill Russell about that. I have paid Bill Russell the money.’ ” The “Bill Russell” referred to, it seems, was the president of the Russell Realty Company. From other testimony it appeared that Glover reached Sherman on the day following the day on which Owens introduced Garrison and appellant to each other, and, through said Russell Realty Company, began, and several days thereafter concluded, negotiations with appellant, which resulted in the exchange between them of their respective properties. It conclusively appeared that all appellees ever did in connection with the matter was to introduce Garrison to appellant. After that introduction the negotiations, commenced before it occurred, between Garrison as Glover’s broker and the Russell Realty Company as appellant’s broker, as shown by the letters referred to, were resumed, resulting, as stated, in the exchange between Glover and appellant.

Erom the statement made it conclusively appears that the Russell Realty Company, and not appellees, was the “procuring cause” of the exchange made by appellant. That company first began the negotiations with Glover’s broker, and afterwards assisted appellant in concluding same with Glover Mmself. All appellees did was to introduce Glover’s broker, Garrison, to appellant, after appellant’s broker, the Russell Realty Company, on appellant’s behalf, had begun negotiations with said Garrison. The special charge refused should have been given to the jury. The error of the court in refusing to give it requires a reversal of the judgment, and, it appearing that on the testimony heard a recovery should be denied to appellees, and there being nothing in the record indicating the testimony might be materially different on another trial, we think judgment should be here rendered that they take nothing by their suit. Therefore such a judgment will be here rendered.


author: LEVY, J.

text:
    McCULLOCH v. NICHOLSON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 11, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Husband and Wife (§ 262) — Community ob Separate Property — Presumptions.
    Where a deed in favor of a husband and wife recited the payment of money for the land, that the grantor was the father of the wife would not destroy the presumption that the payment was made out of community, funds and raise a presumption that the property belonged to the wife.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dee. Dig. § 262.*]
    2. Adverse Possession (§ 63) — Possession of Purchaser.
    The possession of a purchaser of land, who is admitted under the contract, is not adverse to his vendor unless he repudiates the trust relation by claiming to hold the land adverse to his vendor, and brings the knowledge of his repudiation home to his vendor.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 333-357; Dee. Dig. § 63.

    3. Adverse Possession (§ 115*) — Evidence-Jury Question.
    In trespass to try title, where defendant had gone into possession under a contract of purchase, the question of defendant’s repudiation of the contract and adverse holding held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.*)
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Action by T. C. McCulloch against W. S. Nicholson and others. From a judgment for
    defendants, plaintiff appeals.
    Affirmed.
    By his first amended original petition appellant sought to recover on. certain notes and to foreclose a vendor’s lien on the land described, and in the alternative in trespass to try title to the land, alleging that he was the owner and holder of the superior title. Appellees answered by denial, plea of four years’ limitation as against the recovery on the notes and the foreclosure of the lien, and plea of not guilty, offer of the performance of the original contract of sale as made, and the repudiation and denial of the original contract of sale, plea of limitation of ten years based on disavowal of title of the vendors, and the statute of ten years’ limitation independent of the repudiation of the title of Garrison. As no other plea but limitation was submitted to the jury, other pleas of defense are not material to be stated.
    The court instructed the jury to return a verdict for appellant for title and possession unless the jury should find for appellees upon their plea of statute of ten years’ limitation. There was no other issue submitted to the jury. The jury rendered a verdict for appellees.
    The evidence establishes the facts that on November 1, 1883, appellee W. S. Nicholson bought about 90 acres of land from H. A. Garrison and wife, agreeing to pay therefor a total of 20 bales of cotton in four installments of five bales of cotton in the fall of each succeeding year, commencing with the fall of 1884, and evidenced by four notes. I-I. A. Garrison and wife executed a bond for title to W. S. Nicholson, in which it was agreed to make conveyance to Nicholson upon the payment of the purchase price; the superior title to remain in Garrison and wife until the purchase price was fully paid. On February 24, 1911, Garrison transferred to appellant for a valuable consideration the last three of the notes mentioned, together with such lien and title as remained in the Garrisons. At the time of the transfer of the notes, and at the time of filing the suit, the notes were barred by limitation of four years, and there was no agreement to renew. According to evidence offered by appellee, W. S. Nicholson paid on these three last notes in 1885, 1886, and 1887, and in 1S89 tendered to Mr. Garrison seven bales of cotton, agreed by the parties to be the balance of the cotton due, which Garrison refused because of the low price of cotton at the time. After Mr. Garrison refused the cotton, appellee Nicholson demanded a deed, which was not given, and appellee then and there stated to Mr. Garrison that he considered that he had performed his terms of contract, and that he was not going to perform the contract of sale any longer, and that he was going to hold the land as his own from that time on independent of any claim of Garrison’s. The evidence warrants the finding that appellee W. S. Nicholson in 1889 repudiated and abrogated the contract of sale of H. A. Garrison and wife, and so notified H. A. Garrison at the time, and that from that date for more than ten years continuously thereafter he has had and held peaceable and adverse possession, cultivating, using, and enjoying and claiming the land as his own publicly and within Mr. Garrison’s knowledge. The evidence warrants the further finding that the appellee Nicholson never after repudiation in 1889 revived the contract or promised thereafter to pay on same.
    D. Thornton and T. C. McCulloch, both of Sulphur Springs, for appellant. C. E. Sheppard and B. W. Foster, both of Sulphur Springs, for appellees.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above).

By the sixteenth assignment, first considered, error is predicated upon the portion of the charge authorizing a verdict for appellees upon the finding by the Jury upon the evidence: (1) That there was a denial and repudiation by W. S. Nicholson of the contract of sale from H. A. Garrison and wife to him as made in 1883; and (2) that Nicholson notified Garrison that he denied and repudiated the contract of sale; and (3) that thereafter for more than ten years continuously before the bringing of this suit Nicholson, claiming to have absolute ownership of the land, had and held peaceable and adverse possession, using, cultivating, and enjoying the same. Appellant contends that the charge is error upon the grounds: (1) That Nicholson having gone into possession of .the land under an executory contract of sale from Garrison and wife, and not having paid the purchase money therefor, he could not dispute the possession or title of the Garrisons and hold adversely; and (2) that the evidence does not show that Mrs. Garrison was notified by Nicholson that he had repudiated the contract of sale.

In respect to the second point of objection made to the charge, it must be said that it was not error for the court to limit notice of repudiation of the contract of sale to the husband; for it does not appear from the record that the property was the separate property of Mrs. Garrison, as assumed by the objection. It appears from the record that on March 8, 1876, W. Fore deeded the land in suit to “Susan G. Garrison and H. A. Garrison” in consideration “of the sum of $500.00 to me paid by Susan O. Garrison and H. A. Garrison.” It further appears that the grantor, Fore, was the father of Mrs. Garrison, and that he was the owner of the property at the time of the conveyance. And it appears that Mr. and Mrs. Garrison were married in 1876. There are no other facts, but the above, from which to determine the legal status of the property. The deed reciting a payment of money for the land during marriage, the legal presumption, in the absence of other facts, would prevail that the property was purchased with community funds. And the bare fact alone that the grantor, Fore, was the father of Mrs. Garrison, would not be sufficient to overcome or negative the presumption of payment with community funds.

In respect to the first point of objection made to the charge, it is believed that the doctrine is well established that, as charged by the court, the possession of the vendee is not adverse to his vendor, unless the vendee within the knowledge of his vendor repudiates the trust relation and claims to hold the land in opposition to the claim of superior title on the part of his vendor. Howard v. McKenzie, 54 Tex. at p. 187; Smith v. Pate, 91 Tex. 596, 45 S. W. 6; Burnett v. Attebury, 145 S. W. 582.

And if the assignment by intendment means that the evidence fails to make an issue of repudiation and adverse claim, it must be overruled also on that ground. The facts testified to by Nicholson are, in substance, that he executed four notes calling for payment in twenty bales of cotton, and that he delivered cotton and syrup and the proceeds of the sale of three acres of the land to Mr. Garrison, all of which was applied on his contract of purchase; that ap-pellee was ignorant and could neither read nor write; and that Mr. Garrison figured up the balance that was due in full on the contract and stated it as seven bales of cotton. Appellee then tendered the seven bales of cotton in a very short time afterwards to Mr. Garrison, and Mr. Garrison would not take the cotton because the price was so low in the market. Appellee then told Mr. Garrison that he had complied with the contract and had offered to him, the full payment in cotton, and that he was not going to hold under the claim any longer, and that in the future he was going to claim the land independent of him or any one else and regardless of him or any one else. Later ap-pellee caused a letter to be mailed to Mr. Garrison, stating that, as Mr. Garrison had failed to accept settlement and make a deed, appellee from that time claimed “adversely to him and the whole world.” It is not disputed that appellee occupied the land for more than ten years, publicly claiming it, within Mr. Garrison’s knowledge. The testimony of Mr. Garrison was not taken in the case, and it does not appear that Mr. Garrison ever at any time further demanded payment or sought to enforce any rights under the contract or for the land after 1889. Thus it would reasonably appear that appellee had offered the cotton in full settlement of the balance owing on the contract, and that Mr. Garrison had refused it and refused the demand to make deed. It could be concluded, we think, that because there was a failure and refusal to further perform the terms of contract on the vendor’s part, appellee Nicholson had repudiated the contract and refused to further pay or offer to pay on the contract, and that the vendor himself knew appellee had repudiated the terms of contract. The evidence further tends to show that Mr. Garrison had so acquiesced in ap-pellee’s repudiation as to constitute mutual rescission. An issue for the jury of repudiation and adverse possession was made by the evidence.

We have considered all the remaining assignments, and think there is no error presented warranting a reversal of the judgment.

The judgment is affirmed.


text:
    HILL et al. v. WHITWORTH.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 27, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Tenancy in Common (§ 55) — Trespass to Try Title — Title to Support.
    A tenant in common in actual possession of part of the land has constructive possession of the whole and has sufficient title to maintain trespass to try title against strangers who enter upon any portion of the property.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.]
    2. Trespass to Try Title (§ 35) — Actions— Variance.
    In trespass to try title, where plaintiff generally alleges title in himself, proof that he is only a tenant in common in possession of an undivided tract of land does not constitute a variance.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    3. Trespass to Try Title (§ 18) — Actions— Defenses.
    In trespass to try title, where defendants were only trespassers, they could not defeat recovery by showing that plaintiff was merely a tenant in common of a large tract of land and that, by selling specific parcels, he had relinquished his right to the property in suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 21; Dee. Dig. § 18.]
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Action by B. F. Whitworth against R. B. Hill and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    This is an action brought by appellee against appellants in trespass to try title to two tracts of land — one for 204 acres, and one for 36 acres — described by metes and bounds in the petition. The 36-acre tract, though, was eliminated from the controversy by an order of nonsuit. The plaintiff alleged that he had held the land adversely for more than ten years, and relied upon the statute of ten years’ limitation for title. The defendant answered by plea of not guilty, and pleaded ownership under the statute of five years’ limitation to all the land except 30 acres lying north of the Pruitt and Hughes dividing line. The jury returned a verdict in favor of appellee, and judgment was entered for 160 ¿eres.
    The evidence shows that in 1848 a survey of 2,400 acres of land was made under the Donaldson Lewis certificate. The land office held the survey for and the location upon the land, as made, of the Lewis certificate, void. And subsequently the John L. Chambers and Lucas D. Isom certificates, respectively, were relocated on the 2,400 acres, and a patent was issued, respectively, to Chambers and Isom in 1873. The Chambers survey was located on the westerly part of the 2,400 acres, and contained 1,476 acres, and embraces the land in this suit. In the meantime Pruitt & Casey claimed to be owners under the Donaldson Lewis survey of a part of the 2,400 acres, situated within the present Chambers survey. And in 1887 Pruitt & Casey, claiming 900 acres of the land, sold the same to the appellee. There appears in the evidence to be a line established on the south of the 900 acres, called the Logan dividing line. 'There appears also another line, which is between 600 and 700 varas to the north of the Logan line. These two lines were asserted to be divisional lines between the lands claimed by Pruitt & Casey on the north and by Hughes on the south. And it appears that the Logan line is the true boundary line of the 900-acre tract. At the time Pruitt & Casey sold to appellee, Mr. Pruitt pointed out to appellee the Logan line as the south boundary line of the 900 acres. Appellee went into possession in 1SS7 of the 900 acres of land bought from Pruitt & Casey, and claimed the whole tract, and made such claim for more than ten years continuously. It appears that the 204 acres in suit of the 900 acres of land was surveyed out just previous to the filing of this suit, and it was on the .lower part of this 204-acre tract that appellee in 1889 built his residence and barn, and cleared and fenced about 15 acres and cultivated it, and has occupied and used the said 15 acres of it continuously as his homestead part, but claiming all the land bought from Pruitt & Casey, for 25 years before suit. It appears that appellee, after ten years from the purchase from Pruitt & Casey, by deed at different dates conveyed to some eight different persons an aggregate of 1,052 acres purporting to be off of the tract of land bought from Pruitt & Casey, but none of it included the 204 acres in suit.
    The appellants claim 206 acres of land by deed from the heirs of Reese Hughes dated October 24, 1905, and recorded March 26, 1906, and have paid taxes on such land since 1905, and have had it fenced and in their actual possession four years before the- suit. This deed covers all the land in controversy except 30 acres.
    O’Neal & Allday, of Atlanta, for appellants. W. T. Armistead, of Jefferson, and L. E. Keeney, of Mt. Pleasant, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above).

The appellants challenge the right of appellee to judgment for the land sued for, except the 30 acres disclaimed by them, upon the proposition that: “When a party adversely occupies a tract of land in excess of 160 acres for the required period of time to acquire title to 160 acres thereof under the terms of the statute of ten years’ limitation, such party then becomes a tenant in common with the legal owners of the excess of the tract. And if such party thereafter sells as much as 160 acres of the land, whether as undivided interest or as a specific part of the larger tract, he has nothing of interest in the land left to base a recovery on even against a trespasser.” The proposition admits that appellee had acquired by adverse possession 160 acres in the tract of 900 acres. And under the case of Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, having application here in principle of law, appellee acquired title to an undivided 160 acres of the larger tract including the part of his improvements, and became a tenant in common, until a partition was had, with the owner of the remainder. It is undisputed that appellee was in actual possession of his improved part of the land. Being in actual possession of a part of the land, as a tenant in common of an estate in the land, such ownership and actual possession of a part would operate as constructive possession of all the land sued for outside of that part actually occupied by appellee. Being a tenant in common with the owner of the remainder of the large tract, as appellee was, and the specific land sued for being an undivided part of the whole, there was sufficient title to enable appellee to maintain his action against appellants, who are strangers to the title. It is the rule that one tenant in common may maintain trespass to try title against a stranger. Grassmeyer v. Beeson, 18 Tex. 754, 70 Am. Dec. 309; Sowers v. Peterson, 59 Tex. 216. And having sued under a general allegation of title in himself, it is not a variance if the evidence shows that appellee owns less than the whole of the specified tract or only an undivided interest. Hutchins v. Bacon, 46 Tex. 408.

The proposition is founded upon appellants being trespassers, and the evidence supports that finding. The evidence shows that appellants’ vendors occupied the land from 1860 to 1870 under the Donaldson Lewis filing on the land. But according to the record it must be said that the Donaldson Lewis filing was not accepted but held void by the land office, and thus the land was public domain from 1848 until 1873. No occupancy or claim to the land in suit was made by appellants until 1905. No legal title was shown by appellants, and no adverse possession under a deed beyond four years from 1905. Appellants therefore have shown no title. So if appellee had conveyed parcels of the 900-acre tract resulting in being more than his share in the whole tract, it would in no wise affect appellants. And even if the owner of the remainder of the tract could in a suit against appellee assert that appellee was debarred from claiming this particular land in suit under his possession because his conveyance of other specific parcels operated to be an election and relinquishment of his right to this particular part, outside of his improvements, still appellants, as trespassers or having no title to the land, could not be in a position to the whole tract, like a tenant In common of the whole, to predicate rights against appel-lee upon his conveyances of the parcels not here in suit.

The judgment is affirmed.


text:
    HINKLE v. HAYS.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 26, 1913.
    Rehearing Denied Jan. 1914.)
    1. Boundaries (§ 6) — Errors in Cali,.
    If the first call in a deed is indefinite or erroneous, the subsequent calls, if they agree and may be readily ascertained, are entitled to as much consideration as the first call.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 47-57; Dec. Dig. § 6.]
    2. Deeds (§ 38) — Description—Sufficiency of Calls.
    A deed described the land as follows: “315 acres of land situated about 12 miles north of
    M. in T. county, on W. creek. Beginning at D.’s survey a stake from which a B. J. brs. N. 50 E. 10 vrs. off. B. J. brs. 12 vrs. thence east with the same at 1284 vrs. a stake from which, being D.’s S. W. corner, a hickory brs. N. 33 W. 12 vrs. off. Thence with the same 1280 vrs. Thence W. 1378 vrs. a stake. Thence south 1284 vrs. to the place of beginning.” It appeared that the initials “B. J.” referred to a “Black Jack” tree. Held, that though the first call was indefinite for not giving a more definite starting point on the D. -survey, the second call was sufficiently definite, and agreed with the subsequent calls so as to prevent the deed from being void for uncertainty of description.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 65-79; Dee. Dig. § 38.].
    3. Deeds (§ 114) — Description.
    The description in a deed need not state in what survey the land is situated, if it otherwise identifies it.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec.Dig. § 114.)
    4. Adverse Possession (§ 80) — Color of Title-Description in Deed.
    . If the description in a deed is sufficient to prevent it from being void for uncertainty, it is sufficient to give notice of a claim under the statute of limitations.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.]
    Appeal from District Court, Titus County; H. P. O’Neal, Judge.
    Action by A. B. Hinkle against J. J. Hays. Erom a judgment for defendant, plaintiff ap-
    peals.
    Reversed and remanded.
    This is an action in trespass to try title to specific lands, brought by appellant against appellee. The jury, on peremptory instruction, returned a verdict for the defendant. The first and only assignment predicates error upon the ruling of the court holding a deed incompetent as evidence. The appellant offered in evidence a deed from Wyngate Truett to T. B. McReynolds, dated August 30, 1860, and it was objected to on the grounds that the description in the deed was at variance with the land described in the petition, and that the description of the land was insufficient to afford notice of adverse claim of the land sued for under either the - 5 or 10 years statutes of limitation. The land sued for is the Alexander Nevill survey, and is described in the petition the same as in the patent, viz.: “315 acres of land in Titus county, Red River district, about 11 miles N. 8° East of Mt. Pleasant. Beginning at I. Dris-kell’s S. W. corner, G. W. Smith’s north line a stake from which a hickory brs. N. 33 W. 12Vio vrs. a P. O. brs. N. 10 W. 9Vio vrs. Thence north with Driskell’s W. line at 1220 vrs. past the N. W. corner of said survey at 1407»/io vrs. a stake, from which a P. O. brs. 75 E. 5 vrs., a black oak vrs. S. l5/io vrs. Thence west at 12S3 vrs. a stake from which a pin oak brs. South 39 E. 2Vio vrs., an elm brs. S. 71 E. 4s/10 vrs. Thence south at 1407»/i o vrs. intersects G. W. Smith’s line a stake from which a B. J. brs. W. Vio vrs. a black oak brs. N. 50 E. 10 vrs. Thence east with the said survey 1283 vrs. to the place of beginning.” The description of the land as contained in the deed offered in evidence is as follows: “315 acres of land situated about 12 miles north of Mt. Pleasant in Titus county, on White Oak Creek. Beginning at Driskell’s survey a stake from which a B. J. brs. N. 50 E. 10 vrs. off. B. J. brs. 12 vrs. Thence east with the same at 1284 vrs. a stake from which, be ing Driskell’s S. W. corner, a hickory brs. N. 33 W. 12 vrs. off. Thence with the same 1280 vrs. Thence west 1378 vrs. a stake. Thence south 1284 vrs. to the place of beginning, so as to contain 315 acres either more or less.” The Driskell survey is the older survey, and lay in a square on the east of the Nevill survey.
    Burdett & Connor, of Paris, and S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellant. Ward & Ward and Ralston & Ralston, all of Mt. Pleasant, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   LEVY, J.

(after stating the facts as above).

The first call in the deed offered in evidence is for the beginning point to be “at Driskell survey a stake.” The second call is “thence east with said survey 1284 varas a stake, being Driskell’s southwest corner.” The first call is very imperfect, from not giving a more certain and distinct starting corner on the Driskell survey. The second call does distinctly and with certainty locate and fix the end of its line to be at the southwest corner of the Driskell survey. In order to run a line east to reach the southwest corner of the Driskell survey, the point of beginning must necessarily be west of the southwest corner. Therefore it is evident that the first call or commencing point cannot be located on the Driskell survey if the second and succeeding calls are to prevail, and the second and succeeding calls cannot prevail if the first call is located on the Driskell survey east of the second call. Consequently there is obvious error either in the point stated for the beginning or in the second line to be pursued. By reference to the other calls used in the description, to determine whether the first or second call appears by the context to have been a mistake, it will be observed that there follow calls consistent with each other, and which perfect the description of a tract of land, by ascribing the mistake to have been in the first call for the starting point.

Determining from all the calls, as we do, that there is an obvious error in one of the calls in the deed, and that such error is at the starting point, made indefinite by the call, it would follow that the other calls, being readily ascertained and agreeing, would be entitled to as much consideration as the first. 2 Devlin on Deeds, 1033; Booth v. Up-shur, 26 Tex. 70; Smith v. Chatham, 14 Tex. 322; Phillips v. Ayres, 45 Tex. 601.

It is not believed that a deed should be held void that has some definite and fixed corner and calls that, if followed from the fixed call, would completely describe a tract of land intended to be conveyed. Hence by taking the second call as definitely tying the end of its line to the southwest corner of the Driskell survey in order to fix the intended beginnning place, the first line or beginning point would readily be ascertained as commencing at a point 1,284 varas west of the southwest corner of the Driskell survey, and as so located the second call would run, as called for in the deed, thence east to the said southwest corner. And as pointing to this being the true intended beginning, the bearing tree in the first call of the deed coincides with a bearing tree in the Nevill S. W. corner, if a “black Jack” and a “black oak” means the same kind of tree. The next call or third in the deed by necessary implication must run north, since it must by the call run with a boundary line of the Driskell survey, and because the succeeding call is to run west. By running this third line north the distance called for, and thence west, as the course and for the distance called for, and thence south, as the course and for the distance called for, and thence east the 1,284 varas, as the course and distance called for, the calls all agree, and are entirely consistent, and perfectly describe a tract of land. And by reason thereof the deed will not be void for uncertainty from the fact that the description in one call is incorrect, because there is a sufficient and distinct description given in the other calls such as to enable the land intended to be conveyed to be identified.

The remaining question is whether the description of the land purported to be passed by the deed applies to the land sued for. The description in the deed omits to state in what survey it is situated. This is not essential if the description otherwise locates and identifies the land. And it cannot be said from the face of the description in the deed that it fails in itself to inclose the Alexander Nevill survey, or practically all of it.

And. furthermore, if the description is sufficient to make valid the deed, as it is, then it is sufficient to give notice of claim under limitation. Flanagan v. Boggess, 46 Tex. 334; Udell v. Peak, 70 Tex. 547, 7 S. W. 786.

The judgment is reversed, and the cause remanded.


author: TALBOT, J.

text:
    LEE v. MOORE.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Appeal and Error (§ 302) — Motion fob New Trial — Ruling on Instructions.
    A ruling giving' or refusing instructions need not be included in the motion for new trial to preserve it for review.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    2. Physicians and Surgeons (§ 15) — Malpractice — Furnishing Substitute — Nature oj? Duty.
    Where a physician specially employed to attend upon a patient sends a substitute, he must select one possessing that degree of knowledge, skill, and care which physicians ordinarily possess, and, if he does not, he is primarily liable for all damages proximately resulting therefrom; the mere exercise of ordinary care in the selection being insufficient.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 32; Dec. Dig. § 15.]
    3. Physicians and Surgeons (§ 15) — Malpractice — Lack of Skill and Care — Assistant.
    A physician is responsible for an injury done to a patient through want of proper skill and care in his apprentice or assistant.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 32; Dee. Dig. § 15.]
    4. Partnership (§ 153) — Malpractice — Partnership Liability.
    Partners in the practice of medicine are all liable for an injury resulting from the negligence of any partner within the scope of their partnership business.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 274-277; Dec. Dig. § 153.]
    5.Physicians and Surgeons (§ 13) — Contract of Employment — Duration.
    Where a physician responds to the call of a patient, he thereby becomes engaged, in absence of special agreement, to attend to the case as long as it requires attention, unless he gives notice to the contrary or is discharged by the patient.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 18-20; Dec. Dig. § 13.]
    6.Physicians and Surgeons (§ 14) — Contract of Employment — Skill and Care-Implied Contract.
    A physician impliedly contracts that he possesses that degree of knowledge, skill, and care which physicians practicing in similar localities ordinarily possess, but does not impliedly warrant a cure, and is not a guarantor of success in the absence of express agreement.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 21-30; Dec. Dig. 14.]
    7. Physicians and Surgeons (§ 15) — Unwarranted Abandonment of Case — Liability.
    A physician may be held liable for increased pain and suffering consequent upon his unwarranted abandonment of a case at a critical period.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 32; Dec. Dig. § 15.]
    8. Physicians and Surgeons (§ 18) — Abandonment of Case — Excuse—Question for Jury.
    In an action against a physician for injuries resulting from his furnishing an incompetent substitute, the question whether the fact that defendant expected to attend court on that day and had other pressing professional and business engagements to which he could not give his attention and at the same time attend plaintiff’s wife furnished a sufficient excuse for defendant’s failure to attend in person when called by plaintiff was for the jury.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. § 18.]
    9. Evidence (§ 155) — Admissibility—Similar Evidence of Adverse Party.
    In an action against a physician for malpractice, it was not an abuse of discretion to refuse to permit defendant’s witnesses to illustrate with a manikin the proper method of delivering a child, though similar evidence, offered by plaintiff, had been previously admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.]
    10. Appeal and Error (§ 738) — Assignments of Error — Leading Questions.
    Where some of the questions asked a witness were not leading, an assignment of error complaining of such questions as a whole, on the ground that they were leading, was insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3033; Dec. Dig. § 738.]
    11. Physicians and Surgeons (§ 18) — Malpractice — Defense—Question for Jury.
    Under conflicting evidence, in an action against a physician for injuries to plaintiff’s wife, due to lack of skill and care by defendant’s substitute, the question whether plaintiff was intoxicated and threatened such substitute with a pistol, and thus contributed to his failure to exercise ordinary skill and care in the treatment, was for the jury.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-¾6, 48; Dec. Dig. § 18.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by S. E. Lee against I-I. Leslie Moore. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Gibson & Callaway, of Dallas, for appellant. Thomas & Rhea and J. D. Hunt, all of Dallas, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

Appellant, S. E. Lee, sued appellee, H. Leslie Moore, for malpractice, claiming damages for injuries to his wife while confined in childbirth on account of alleged negligence upon the part of appellee, and also alleged negligence and want of professional skill upon the part of one Dr. A. D. Hardin, acting as appellee’s agent or substitute. Appellee was a regular practicing physician, and held himself out to the public for the practice of his profession. Some time prior to February 6, 1911, appellant’s wife being pregnant with child, appellant called upon appellee and arranged with him to treat her during her confinement. At night, on or about the 5th day of February, 1911, appellant’s wife was stricken with illness occasioned by childbirth, and, at the instance of appellant, appellee called upon and undertook the treatment of said patient. Appellant alleged that, while his wife was critically ill, appellee, without cause or notice, abandoned the treatment of the case, and, without the knowledge or consent of appellant, sent as a substitute for himself one Dr. A. D. Hardin, a physician, youthful, inexperienced, and lacking in that degree of professional skill required of him by law. Appellant further alleged that on account of the negligence of appellee in failing to make a proper diagnosis of the patient, and his wrongful act in abandoning the treatment of her, and on account of the negligence of the said Hardin in failing to promptly attend said patient, and his lack of professional skill and ability, said patient recéived serious and painful injuries and suffered great physical pain and mental anguish, in addition to what she otherwise would have received and suffered, for which appellant prayed damages in the sum of |10,000. Appellee answered by general denial, and special answer to the effect that, owing to the fact that he expected to attend court at Ft. Worth, and had other pressing professional and business engagements, he was unable to continue the treatment of plaintiff’s wife, and arranged with Dr. Hardin to assist him in treating said patient, and further, that at the time Dr. Hardin called upon said patient, appellant was in a state of intoxication and flourished a pistol, threatening to do the said Hardin serious bodily harm and used profane language in the said Hardin’s presence and hearing, and refused to permit the said Hardin to call appellee to his assistance in the treatment of said patient, and that, by such acts and conduct upon the part of appellant, he contributed to and caused any injuries that his wife may have received. A jury trial resulted in a verdict and judgment in favor of appellee and appellant’s motion for a new trial being overruled he appealed-

The ca"se was affirmed at the last term of this court, without a consideration of appellant’s assignment of error, and in due time he filed a motion for a rehearing. We were of opinion that, inasmuch as neither of the assignments disclosed that the error therein complained of was distinctly set forth in a motion for a new trial in the district court, and did not point out the page of the transcript or particular clause of the motion in which the error was complained of in. accordance with rules 24 and 25 (142 S. W. xii) as recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals, such errors should be considered as waived. According to the opinion of the Supreme Court in Railway Co. v. Beasley, 155 S. W. 183, we were in error in so concluding, and under the authority of that case the assignments will now be considered, our former opinion withdrawn, and this opinion filed in lieu thereof.

The main questions presented for our decision arise under assignments of error challenging the correctness of the trial court’s action in giving certain instructions to the jury and in refusing to give certain special charges requested by the appellant.

In the general charge of the court the jury were instructed that if the defendant failed to use ordinary care and diligence in looking after plaintiff’s wife in so far as he did the work himself, or failed to use ordinary care in selecting a physician as a substitute for himself to act in taking care of plaintiff’s wife, and that, as a proximate result of such failure, if any, to use ordinary care and diligence, plaintiff’s wife was injured, then, and in either event, they should return a verdict for the plaintiff, unless they should find for the defendant under some succeeding paragraph of the charge or in the special charges given them. In a subsequent paragraph of the charge they were instructed as follows: “If you do not, from a preponderance of the evidence, so find that the defendant failed to use ordinary care and diligence in looking after plaintiff’s wife, in so far as he did the work himself, or that he failed to use ordinary care and diligence in selecting a substitute for himself to act in taking care of plaintiff’s wife, or if you fail to find that plaintiff’s wife was injured on account of defendant’s said failure, if any, to use ordinary care and diligence, then, and in either event, you should return your verdict for the defendant.” After the case had been submitted to the jury and after they had retired to consider of their verdict, they returned into open court and asked the court to instruct them whether or not appellee, Moore, was required to furnish as his substitute a physician possessing the same degree of skill and qualifications as he himself possessed. In response to this request, and at the instance of the appellee’s counsel, the court instructed the jury as follows: “In furnishing a substitute the defendant was only required to use ordinary care to furnish a physician possessing that degree of skill and ability as is usually possessed by physicians engaged in the general practice of medicine in the city of Dallas and vicinity.” The appellant requested, among others, the following special charge, which was refused: “You are instructed, at the request of plaintiff, that, while a physician and surgeon undertaking the treatment of a patient does not guarantee results or to effect a cure, yet he is required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by tbe members of bis profession in good standing practicing in similar localities, and it is bis duty to use reasonable care and diligence in tbe exercise of bis skill and tbe application of bis learning, and to act according to bis best judgment in tbe treatment of tbe case. In tbis connection you are further instructed that tbe test of professional skill and learning, as applied to Dr. Hardin in tbis case, is tbe same as is hereinabove defined, and be was required by Law to exercise reasonable care and diligence in the treatment of tbe case. Now, bearing in mind the above instructions, you are further instructed that if you find that Dr. Hardin did not possess tbe requisite degree of professional skill, or if be failed to exercise tbe care and diligence required of him in tbe treatment of tbe case, and if you further find that, on account of such lack of skill upon tbe part of Dr. Hardin, if any, or if'on account of tbe failure to exercise tbe care and diligence required of him, if any, plaintiff’s wife received injuries which she otherwise would not have received, and in consequence thereof suffered physical and mental pain which she otherwise would not have suffered, then, if you so find and believe, plaintiff is entitled to recover of defendant damages for such injuries so received by his wife, if any.” The giving of the foregoing charges mentioned and tbe refusal of appellant’s said special charge is assigned as error.

Tbe contention of appellant, in substance, is that under tbe facts in tbis case it was the duty of appellee, in abandoning tbe treatment of appellant’s wife and sending a substitute to treat her, to select a physician possessing that degree of professional skill and learning ordinarily possessed by physicians in good standing, practicing in similar localities, and that appellee would be primarily liable in damages for any injury proximately resulting from a breach of such duty, regardless of tbe degree of care used in making such selection of tbe substitute physician, and would be so liable for any injury received by tbe patient proximately resulting from ibe negligence of the substitute physician.

On tbe other band, appellee contends that tbe duty, which a physician in sending a substitute physician in bis stead, owes to a patient is to exercise ordinary care to furnish a physician possessing that degree of skill and ability as is usually possessed by physicians engaged in the practice of medicine in the locality where the patient resides, and is not liable for injuries resulting from the want of care, skill, and diligence on the part of the substitute physician.

The foregoing statement of the charges given and refused and the contentions of the respective parties, shows the issue of law involved; and the material facts, in the light of which the issue must be decided, are practically uncontroverted. Appellee contracted to wait upon and treat appellant’s wife in confinement. Appellant’s wife was taken sick about 10 o’clock at night February 5, 1911, at his home seven miles distant from the doctor’s home, and appellee was notified and requested to call to see her. This appel-lee did, and upon examination of Mrs. Lee, which was about 1 or 2 o’clock at night, announced that her pains were false ones; that he was not needed at present, and would go home and return when needed; that he did not think he would be needed before noon of the next day. Before leaving appellee administered to - the patient a dose of medicine to relieve the pains with which she was then suffering, advised appellant of the symptoms that would indicate the necessity of calling him again, and said “phone me at my residence if you need me before 9 o’clock, and at my office after 9 o’clock, and I will come right out.” After appellee returned home and about 8 o’clock that morning, appellant called him at his residence over the phone and' stated, “This is Lee at Vickery, where you were last night,” and, “I think, Doc, it is time for you to be here. My wife is suffering terribly.” Appellee replied that he could not come, that he would have to send another doctor; that he and several other men had a suit pending against them in Ft. Worth; that he (appellee) had been notified the suit would be called that day; that the other men were to go to Ft. Worth and notify him by phone when he was needed' so he could go over; but it did not become peces-sary, and he did not go to Ft. Worth. Ap-pellee states as further reasons why he did not return to treat appellant’s wife that the day in question was an exceptionally busy day with him, .and that he had several patients in the city of Dallas to visit. Dr. Hardin, a young physician of two or three years’ experience, was sent by appellee to wait upon appellant’s wife. Appellant testified that, when he requested appellee to return to attend his wife about 8 o’clock in the morning, appellee said: “I have got important business that E have got to attend to and I will send my partner.” He further testified that Dr. Hardin came out on the interurban car, reaching the bedside of his wife about 10 o’clock a. m., and that he asked him if he was appellee’s partner, and that Dr. Hardin replied that he was; that he, appellant, was not acquainted with Dr. Hardin at that time and had never heard of him before. Appellee testified that when appellant phoned him he told appellant that he would have to send another man, and that appellant said to send him in a hurry; that he (appellee) then phoned Dr. Hardin and told him to catch the first interurban car that passed his house; that he stated to Dr. Hardin that it was a partnership case; “that he and I would attend to it together;” that he wanted him (Dr. Hardin) to go out to appellant’s and look after it, and, if he needed any help or anything went wrong, to notify him (appellee), and that he would either come or send some one to assist him, and he told Dr. Hardin that he' (appellee) expected to take care of the case. He further stated that he would not say that “when Mr. Lee phoned me and told me to hurry out that his wife was suffering great pain, that I told him I would send my partner, that I could not come, I do not remember I said that or not. I told him I would send a good doctor. I have no partner.” While there is testimony to the effect that Dr. Hardin’s reputation as a physician was good and that he was competent, yet there is also testimony tending to show that from inexperience or lack of that degree of skill and ability, usually possessed by physicians engaged in the general practice of medicine in the city of Dallas and vicinity, on the part of Dr. Hardin, appellant’s wife was injured in the delivery of her child substantially and to the extent as is alleged in appellant’s peti-x tion.

What was the measure of appellee’s duty under the facts in furnishing Dr. Hardin to attend appellant’s wife? It seems to be the settled rule that, where a common carrier is compelled by law or assumes to furnish a surgeon or physician to attend upon an injured passenger, the duty devolved upon it is to furnish a competent one, and if this is done the carrier is not liable for any malpractice or neglect upon the part of such physician. Railway Co. v. Scott, 18 Tex. Civ. App. 321, 44 S. W. 580, and cases there cited. So a person or corporation employing a physician who, by the direction of such person or corporation, renders gratuitous service is not liable, it seems, for his specific acts of negligence or malpractice, if ordinary care in his selection was exercised to secure the services of a competent and skillful physician. Ballard v. Railway Co., 144 Ky. 476, 139 S. W. 771.

But a physician is responsible for an injury done to a patient through the want of proper skill and care in his apprentice or assistant.

Likewise partners in the practice of medicine are all liable for an injury resulting from the negligence, either of omission or commission, of any one of the partners within the scope of their partnership business. 30 Cyc. p. 1581; Whittaker v. Collins, 34 Minn. 299, 25 N. W. 632, 57 Am. Rep. 55. The principle or theory upon which this holding is based is that partners in the practice of medicine are sureties for the faithful performance of their engagements by each of them. Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15.

It is also an established rule that a physician, responding to the call of a patient, thereby becomes engaged, in the absence of a special agreement, to attend to the case so long as it requires attention, unless he gives notice to the contrary or is discharged by the patient. 30 Cyc. p. 1573.

He impliedly contracts that he possesses, and he is required to exercise that degree of knowledge, skill, and care which physicians practicing in similar localities ordinarily possess, but he does not impliedly warrant a cure, and can be held as a guarantor of success only in virtue of an express agreement. Ely v. Wilbur, 49 N. J. Law, 685, 10 Atl. 358, 441, 60 Am. Rep. 668; Grindle v. Rush, 7 Ohio, 123, pt. 2.

If he makes provision for the attendance of a competent physician upon his patient, he may leave temporarily, but for the unwarranted abandonment of a case at a critical period resulting in increased pain and suffering on the part of the patient he will be held liable in damages. 30 Cyc. p„ 1573; Lathrope v. Flood (Cal.) 63 Pac. 1007; Barbour v. Martin, 62 Me. 536. In the last case cited it is said, in effect, that a physician who leaves a patient in a critical stage of the disease, without reason or sufficient, notice to procure another medical attendant, is guilty of a culpable dereliction of duty, and is liable therefor. The foregoing general rules seem to be well established, but for an express declaration upon the precise question presented in the instant case we have looked in vain. We are of the opinion, however, that, even though it should be conceded' that common carriers in furnishing a physician to treat injured passengers, etc., and persons rendering gratuitous services in employing a physician to attend upon a sick or injured person are only required to exercise ordinary care to select a skillful and competent physician, yet, under the facts of this-case, the duty of appellee to furnish appellant a physician to attend upon his wife, possessing that degree of knowledge, skill, and care which physicians practicing in the city of Dallas and vicinity possessed, was absolute. If it can be said that Dr. Hardin was not an assistant of appellee in the treatment of appellant’s wife within the meaning of that term as used in the authorities cited, and was not a general partner of appellee in the practice of medicine, yet that he was a special partner in the treatment of appellant’s wife, or was acting under his employment to do so, cannot very well be gainsaid. According to the undisputed testimony, ap-pellee did not absolutely abandon the treatment of appellant’s wife, but contemplated further treatment of her in conjunction with Dr. Hardin, whom he had associated with him in the case. Appellee swore, in effect, that ⅛ engaged Dr. Hardin to wait upon appellant’s wife during his enforced temporary absence, with the distinct understanding that it was a partnership case, and to be treated as such by both of them. Dr. Hardin was therefore as much a partner for the purposes of the particular case as he would have been under a regular partnership for the general practice of medicine in the community. But, whether Dr. Hardin may be termed a partner of appellee in the treatment of appellant’s wife or not, still, appel-lee being a physician himself, and having by contract undertaken the treatment of Mrs. Lee, and having secured the services of Dr. Hardin to relieve himself of the necessity of attending her himself and to serve his own interests, appellee will not be heard to say that, in such case, the duty resting upon him in the selection of a substitute physician was simply that of ordinary care. It was clearly shown that at the lime appellee declined to respond to appellant’s call to attend his wife, and sent in his stead Dr. Hardin, Mrs. Lee was at a critical stage of her illness, and, under all the circumstances of this ease, it was his duty, in sending a substitute to wait on appellant’s wife to select a physician possessing that degree of knowledge, skill, and care which physicians practicing in similar localities ordinarily possess, and for a failure to perform this duty, if such failure resulted proximately in injury to appellant’s wife, he would be primarily liable in damages. The evidence does not present a ease where there had been an entire abandonment of the patient and sufficient notice thereof given to enable the patient to procure another medical attendant of his own selection. It results from what we have said that the trial court erred substantially as claimed by appellant, in giving the charges complained of under his first and second assignments of error, and in refusing to give his special charge quoted above, and which is made the basis of the fifth assignment.

The other assignments, except such as complain of rulings inconsistent with what we have said, do not, in our opinion, disclose reversible error.

Whether the reasons given by appellee for his failure to attend Mrs. Lee in person when called by her husband on the morning of February 6, 1911, were sufficient to excuse him and justified the sending of a competent physician in his stead was, we are inclined to think, a question for the jury. Hence the special charge requested by appellant, to the effect that such reasons would not excuse or justify such course on the part of appellee, was properly refused.

In reference to the complaint that the court erred in refusing, after permitting two expert witnesses offered by appellee to demonstrate by means of a manikin what, in their opinion, would have been the proper method of treating plaintiff’s wife and in delivering her child, to permit appellant’s expert witnesses to demonstrate or illustrate, by the use and manipulation of the manikin, what, in their opinion, was the correct method to be employed in the delivery of the child, it is sufficient to say this was a matter largely within the discretion of the trial court, and, while we may think a broader latitude might properly have been given appellant in this investigation, still it does not appear that the limitation placed thereon was such an abuse of the court’s discretion as would warrant this court in pronouncing it reversible error.

Nor do we think the admission of the testimony complained of in the ninth assignment furnishes a ground for reversal. The bill of exceptions reserved to the court’s ruling shows that more than one question was asked and objected to, and the assignment of error complains of them as a whole, upon the ground that the questions were leading and suggested the answer desired. Clearly some-of the questions were not leading, and if either was leading objection to it on that ground should have been made and a specific assignment of error based thereon should have been presented in this court.

We are further of the opinion that the court did not err in giving special charge No. 5, requested by appellee. Whether the appellant was under the influence of intoxicating liquors and exhibited a pistol in such a threatening manner towards Dr. Hardin while he was waiting upon appellant’s wife as to alarm or excite Dr. Hardin to such an extent as that the same contributed to the failure, if any, of said doctor to use ordinary care and skill in the treatment of appellant’s wife was an issue of fact made by the evidence, which should have been submitted to the jury for their determination, with instructions that an affirmative finding upon it entitled appellee to a ver&ict.

For the reasons indicated, appellant’s motion for a new trial is granted, and the judgment of the court below is reversed, and the cause remanded for a new trial.


author: MOURSUND, J.

text:
    GOLDSTEIN v. SAUR.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.)
    1. Bankruptcy (§ 434) — Action on New Promise — Evidence—Admissibility.
    A plaintiff suing on a debt due prior to defendant being adjudged a bankrupt, based on the fact that subsequent to the adjudication and prior to the discharge defendant made a new promise in writing to pay the debt, may prove that the instrument relied on to constitute the promise could refer to no other debt than the one sued on, and he could prove that the debt sued on was the only one due from plaintiff at the time of the making of the instrument.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ S53-866; Dec. Dig. § 434.]
    2. Bankruptcy (§ 434*) — New Promise — Sufficiency.
    A written promise to pay a debt due from a bankrupt, made- subsequent to his being adjudged a bankrupt, but prior to his discharge, need not describe the debt, where there is only one debt and the promise must have referred to it.
    [Ed. Note — For other cases, see Bankruptcy, Cent. Dig. §§ 853-866; Dec. Dig. § 434.]

      3. Bankruptcy (§ 434) — Promise to Pay Debt — Validity.
    A promise in writing by a bankrupt executed subsequent to bis being adjudged a bankrupt, but prior to his discharge, which states that the creditor will get all the bankrupt owes him, and that the bankrupt understands that the creditor would prefer money than promises, yet the bankrupt is not able at the present time to make a cash payment and asks the creditor to be patient, is a clear, distinct, and unconditional promise to pay the debt, and the creditor may recover.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 853-866; Dec. Dig. § 434.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Carl Saur against E. M. Gold-stein. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Todd, of San Antonio, for appellant. Hertzberg, Barrett & Kercheville, of San Antonio, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellee sued appellant on a debt for $400, alleging that said debt was due prior to appellant being adjudged a bankrupt, but subsequent to such adjudication and prior to his discharge appellant made a new promise, in writing, to pay said debt, thereby waiving his discharge in bankruptcy. Appellant excepted to the plea setting up the written promise on the ground that the writing relied upon was not an express, clear, and unequivocal promise to pay the debt, which exception was overruled, and upon the trial, no jury being demanded, the court rendered judgment for appellee, from which this appeal was taken.

Appellant contends that the court erred in permitting appellee to testify that the amount listed in the bankruptcy court was the only amount due appellee by appellant at the time the letter was written, which was relied upon as the promise to pay. The objection made to the testimony was that plaintiff’s pleadings contained no allegation, upon which said question could be founded. The original petition contained the allegation that “defendant made a new promise to pay the debt of plaintiff.” It was certainly admissible to prove that the letter relied upon could have referred to no other debt than the one sued upon, and to do so it was proper to prove that the debt sued upon was the only one due plaintiff by defendant at the time the letter was written. Browne v. French, 3 Tex. Civ. App. 453, 22 S. W. 581.

It is also contended that the court erred in refusing to sustain the exception to the written promise pleaded by plaintiff. The promise reads as follows: “I believed meantime to make you a part payment which at present is absolutely impossible for me. As I told you before, you will get all I owe you, although I understand that you would like better to have money than promises as I am not able right now to make you a cash payment. Please be patient a little longer and you will see that the confidence you put in me was not in vain.” The debt sued upon was the one referred to by appellant. It is not necessary that the debt should be described, when, as is shown by the evidence, there is only one debt and the promise must have referred thereto. Browne v. French, supra; Mitchell v. Clay, 8 Tex. 443; Robertson v. Warren, 45 Tex. Civ. App. 584, 100 S. W. 805. He tells appellee, “Vou will get all I owe you,” and himself construes the statement as a promise by stating in the same breath that he understands appellee would rather have money than promises, and also makes clear his intention to express the idea that appellee will get the money by appellant making payment thereof, as he proceeds to inform appellee that he is unable to make a cash payment right then. The promise is express, clear, distinct, and unequivocal.

It is, contended, however, that the promise was made upon the implied condition of ability to pay, and, as plaintiff failed to allege and prove defendant’s ability to pay the debt, he cannot recover. There is a conflict in the decisions as to whether a promise to pay a debt barred by limitation or bankruptcy proceedings, which expressly states that payment will be made as soon as promisor is able, is conditional. Benton v. Benton, 7S Kan. 366, 97 Pac. 378, 27 D. R. A. (N. S.) 300, 130 Am. St. Rep. 376. Our courts, in line with the weight of authority, hold that such promises are conditional. Rowlet v. Lane, 43 Tex. 275; also, Wright v. Bank, 31 Tex. Civ. App. 406, 72 S. W. 103, and cases therein cited. But in this case we are asked to go further, and to hold that even though the debtor did not protect himself by stating that his promise was to be performed in a certain event or under certain circumstances, still, as he stated his inability to pay at the time, we should imply that his promise to pay was conditional, and to be performed only upon his becoming able to pay. While we find a few cases, not accessible to us, cited under Benton v. Benton, as apparently holding that statements merely of inability to pay constitute a condition to pay when able, we find no Texas case so holding, and we are of the opinion that when a promise to pay is made, as in this case, the mere fact that it is coupled with statements of inability to pay at the time, expressions of regret on account thereof, and of hope of being able to pay in a little while, such promise is not a conditional one. Walker v. Freeman, 208 Ill. 17, 70 N. E. 598; Vogelsang v. Taylor, 80 S. W. 637; Acers v. Acers, 56 S. W. 198. To so hold would amount to deciding that no promise to pay a debt barred by limitation or bankruptcy proceedings would be unconditional, if coupled with a statement that the debtor was unable to pay at the time.

Judgment affirmed.