author: CONNER, C. J.

text:
    NANNY v. VAUGHN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 9, 1910.)
    1. Boundaries @=325 — Survey — Force of Priority.
    Where the eastern tiers of surveys were located before the western tiers and their east lines can be ascertained, their calls should prevail over the western calls even if there is a slight variance.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 137; Dec. Dig. @=>25.]
    2. Boundaries @=>8 — Survey — Calls — Excess.
    An excess of 1,500 varas in an 18-mile line is not so great as to require rejection of all calls in the survey.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. @=38.]
    3. Boundaries @=333 — Field Notes — Presumptions.
    The law presumes that surveys were made as stated in field notes approved by the General Land Office.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. @=333.]
    4. Appeal and Error @=>1068(5) — Review-Harmless Error — Instructions.
    Rejection of a requested charge is immaterial, where the jury by its verdict did the precise thing the charge would have required, if given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4230; Dec. Dig. @=31068(5); Trial, Cent. Dig. § 475.]
    Appeal from District Court, Swisher County; R. C. Joiner, Special Judge.
    Boundary controversy between T. F. Nanny and M. B. Vaughn and others. From the judgment rendered, Nanny appeals.
    Affirmed.
    Turner, Hendricks & Boyce, of Amarillo, for appellant. H. C. Randolph, of Plainview, and L. W. Dalton, of Matador, for appellees.
   CONNER, C. J.

We find no reason to disturb the judgment in this case. Appellant claims sections 21 and 22, block S-2, and section 91, block M-ll, and these sections were awarded to him by the judgment below. He makes no claim to the Ardrey survey owned by appellee, which undisputedly lies south of the south line of said sections 21 and 22; the call for the northeast corner of the Ardrey being for the southeast corner of section 21.

The disputed question is as to the proper location of said sections 22 and 21. It appears that blocks 10-T, 9-T, and S-2 were office surveys, and if sections 21 and 22 be located, as appellant contends should be done, by calls for course and distance alone from the well-identified corner fixed by John Summerfield on the west boundary line of block m-6, adopted for the southwest corner of section 347 and northwest corner of section 346 in said block M-6, then said sections 21 and 22 will lie south and west from the southeast corner of section 91, block M-ll, which is made the beginning corner of section 21, and so extended would overlap and cover appellee’s Ardrey survey; but we feel unable to say that the jury were unwarranted in finding, as they evidently did, that the calls for section 91, in block M-ll, should be given effect. The evidence warrants the inference that in plotting blocks 10-T, 9-T, S-2, and M-ll the surveyor who made out or adopted the field notes of these several blocks had in mind and was controlled by other lines and objects as well as by the common corners given of sections 347 and 346, block M-6. The north line of block M-ll distinctly calls for the south line of block M-8 and block M-6. The northwest corner of block M-8 and northeast corner of block 2-Z is distinctly fixed by the evidence at a well-identified corner constituting the southwest corner of section 208, block 6 and the southeast corner of block B-5; this corner being nine miles south of the well-identified northeast corner of block B-5. The field notes of block M-8, signed by Hed-rick and filed and approved in the Land Office, call for mounds all along the west line of block M-8, and the surveys along the east line of M-6 likewise call for the same mounds, it being the evident intent of the locator of these blocks that blocks 6, B-5, 2-Z, M-8, and M-6 should adjoin and cover all of the territory included by the outer calls; and the testimony of Hutchinson, who surveyed the west line of M-8 and the east line of M-6, authorizes the inference that along this line he found the original mounds called for in the field notes of these two blocks, that he fixed therein, allowing for an excess found, iron pipes, thus definitely fixing upon the ground the south lines of block M-8 and block M-6, and by calls for course and distance fixed the south line of block M-ll, fixing as the southeast comer of said section 91, block M-ll, an iron pipe, and the jury thus evidently fixed the beginning corner of appellant’s section 21, block S-2, at the southeast corner of section 91, block M-ll, for which the field notes in section 21 call.

While the testimony of Summerfield fixes the west line of block M-6, we do not think it necessarily follows therefrom that the east line of this block is to be drawn away from block M-8 for which it calls. The proof tends to show that the eastern tiers of surveys in block M-6 were located before those along the western line, and, if the eastern line of the block can be fixed with certainty by the calls for adjoining blocks on the north and east, the surveys on the east should be established in accordance with such calls, regardless of the fact that to go to the western line of the block as established by the Summerfield objects would create an excess. It is not contended that the excess is more than about 1,500 varas, which is not so excessive in a line 18 miles long as to require the rejection of all calls along the eastern and northern lines of the block. Besides, the evidence of Summerfield as a whole, we think, warrants the inference that in plotting blocks 10-T, 9-T, M-ll, and S-2, other lines and calls than the calls for the long base line of Summerfield were distinctly had in mind and considered. For instance, he states that from the mound on his base line, now known as the southwest corner of survey 347, block M-6, McClelland and others ran a line east towards the west line of block M-8; that he then ran in the various courses and distances stated by him, and finally connected with McClelland and others; and that at least 10 miles of the line east from the southwest corner of 347 was adopted, and he nowhere states that other calls in these blocks were disregarded.

What we have said we think will dispose of many of the assignments of error, but we will refer to some of them briefly. We think the rejection of Flannigan’s testimony, complained of in the first assignment, immaterial for the reason that there seems to be but little, if any, dispute about the location of the southwest corner of 347, block M-6; the issue and the only issue material as we conceive it under the testimony was whether surveys 21 and 22, block S-2, should be located by calls for course and distance alone from the corners mentioned, or whether the jury might locate these surveys by their calls for sections 91 and 92, block M-ll, and other evidence to which we have referred.

Nor do we think the sixth and seventh clauses of the court’s charge erroneous in ignoring the part Summerfield took in making out the field notes of the surveys in blocks M-6, 9-T, 10-T, M-ll, and S-2. The field notes and surveys purport to have been made by Hedrick, and the presumption of law is that the surveys were made as stated in the field notes approved by the General Land Office. It would not do therefore for the court to assume that Summerfield’s testimony indisputably established the fact, as appellant contends, that the location of blocks 10-T, 9-T, M-ll, and S-2 are to be controlled by calls for course and distance alone from the established common corners of 347 and 346, block M-6. Moreover, as we have before had occasion to mention, Summerfield’s own testimony tends to show that the blocks named were platted, not alone upon the Summerfield base line, but also from other ascertainable lines and corners.

If paragraph 9 of the court’s charge, to which objection is made in the twelfth assignment, is erroneous, but which we do not think, the error was invited by appellant’s special charge No. 5. The jury by their verdict did the precise thing that appellant’s special charge No. 7 would have instructed them to do had the court given it. Its rejection, therefore, cannot be material. By appellant’s charges Nos. 8, 10, 11, mentioned in the fifteenth, seventeenth, and eighteenth assignments of error, appellant sought to authorize the jury to reject calls other than course and distance from the west line of block M-6 as fixed by the testimony of Summerfield. This we think would have been erroneous.

We conclude that all assignments of error should be overruled, and the judgment affirmed.

Affirmed.
      ©soFor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    PULLMAN CO. v. FRANKS et al.
    (No. 7195.)
    (Court of Civil Appeals of Texas. Galveston.
    June 8, 1916.)
    1. Carriers <3=3417 — Passengers—Sleeping Cars — Action for Loss oe Passenger’s Effects — Evidence.
    In action against sleeping car company for loss of passenger’s money by theft of porter or failure to keep watch over it, evidence that the money was lost and that the porter had opportunity to take it, there being others in the car with equal opportunity, held not to raise an issue of theft by porter.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. <@=>417.]
    2. Carriers <@=>417 — Passengers—Sleeting Cars — Action for Loss of Passenger’s Effects — Evidence—Instructions.
    In such action, it was error to submit the issue of porter’s theft to jury.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. <@=>417.]
    3. Appeal and Error <@=>1062(1) — Harmless Error.
    In such action, where the evidence tending to show negligence on the part of the company in failing to keep watch was extremely meager, the erroneous submission of the issue of theft by the porter held reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <@=> 1062(1).]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by Mrs. Chas. T. Pranks and another against the Pullman Company. Prom a verdict for plaintiffs, defendant appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, R. H. Kelley, and.M. E. Kurth, all of Houston, for appellant. Gill, Jones & Tyler and Hugh Potter, all of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought against appellant by appellee Mrs. Pranks, joined by her husband, to recover the sum of $230 which she alleged was stolen from her while she was a passenger occupying a berth in one of appellant’s sleeping cars. The petition charges, first, that said money was stolen from plaintiff’s berth in said car by a servant of appellant who was employed as porter on said car. It then charges in the alternative:

That, “if the said porter did not purloin the said $230, the defendant and its servants failed to keep such watch during the night of June 30, 1913, as it is its and their duty to keep and as would prevent the loss of said property belonging to the plaintiff, a passenger in said car of defendant. That the defendant, the Pullman Company, and its employés, failed to use reasonable care to protect the plaintiff herein from theft of her personal property, either in having in its employ a porter who purloined the same, or in failing to keep such watch during the night of June 30, 1913, as would reasonably well protect the plaintiff from loss of her property carried into the defendant’s car.”

The defendant answered by general demurrer and general denial. It also pleaded specially that the money lost by Mrs. Pranks was greatly in excess of a reasonable sum for traveling expenses, and was therefore not properly carried by her as baggage, and defendant was under no obligation to protect and guard it. Defendant further pleaded contributory neligence on the part of plaintiff in failing to put her money in a safe place in her berth. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs for the sum claimed by them.

Mrs. Prank was the only witness who testified in the case. After stating that the train on which she made the trip from Chicago to Houston left Chicago about 12 o’clock at night, she testified as follows;

“I had lower berth No. 4, but do not remember the number of the car. It was, however, the car from Chicago to Houston on the Chicago & Alton train; I remember that. _ When I walked up to the sleeper on the outside, 1 did not see any one connected with the Pullman Company except the porter. When I got on the car, he followed me in with my grip to the berth. After I got on, I did not do anything but put my grip in my berth, and he (the porter) stood by the side of the berth all the time. After I put my grip in the berth, I went to the washroom, and when I came back I asked the porter for a glass to get a drink of water, and he gave me my cup, and I went back and got a drink. I came back again and asked him if he was going to Houston, and he said, ‘Xes,’ he was going right through, and I went back to the toilet again to prepare to retire, and he was still standing outside of my berth all the time, and I retired a little after 1 o’clock. During all the time that I was making the several trips to the toilet and back I had the $230 on my person, and I did not take it off my person until after I had gone to bed in the berth. When I went to bed, I took the $230 out of my purse, and I took a handkerchief and folded the $230 and put it inside the purse. Xes, that is my purse. I put it right in that compartment. I had those two articles in the compartment at the time, and I found them outside my berth in the morning. After I put the money in the bag, I closed it up, like this, and put it away between the' foot and head of the berth on the side toward the window. That made the purse between me and the window of the sleeping ear, on top of the cover. I had the sheet pulled up over me. When I retired, I closed the curtains at the middle and at the bottom, but not at the top. The reason I did not close them at the top was that it was rather a warm night. The windows were up a little, but both of them had a screen. Erom the time I first got on the Pullman car until I got in my berth I did not see any one except the Pullman porter in that car. Each time I started to the toilet and came back I noticed the porter right outside my berth. He was not doing anything because both of these berths were not occupied. He was not opening the windows, nor attending; to any of his other duties. He was not making up any of the berths, but just standing there all the time.
“After I went to sleep that night, I woke up about half past 3 in the morning and looked at my watch, and it was not time to get up, so I dozed off again. X was not sleepy. Consequently, about 6:10 or 6:15 I got up and went to the washroom, and on getting out of my berth saw the porter standing at the other berth down below, and he looked at me right hard. As soon as I discovered that the $230 was not where I put it, I reported my loss to the porter. He said that it was very funny, that there was nobody around but him, and that he had seen no one; and I told him to go and get the two conductors, and I reported my loss, and they told me that they were very sorry. The porter kept walking around and making up the berths, and I watched him continuously. When I advised the porter that I had lost this money, he didn’t do anything, just kept on working around the berths. Neither of the Pullman conductors did anything. Neither one of them made any effort to find my money, but told me I could not do anything until I got to Houston and talked to my husband.”
“When I got up in the morning about 6:30 and went to the toilet and discovered the loss of the $230, I didn’t notice any one at that time except the porter. The berths on the back of me were made down, but the ones next to the corner were not made down. Neither was the berth directly opposite me made up, nor the one in the next comer was not made up.
“I found two little trinkets which I .had along with me outside of my berth in the morning when X noticed that my money was gone; that was when I first got up and came back from the washroom. They were right in front of my berth on the floor. When I found these little trinkets on the floor, I spoke to the porter about it. I asked him if he knew anything about it. He said he did not, but that he noticed that on the floor early in the morning. The Pullman porter showed me all of Mrs. Eox’s jewelry which he said she had given him the night before, and he told me if he had been given my money it would have been perfectly safe with him, but I didn’t say anything further to him.
“At Palestine I had my breakfast outside and went back to the Pullman car. The conductor and porter were searching Mr. and Mrs. Eox’s grips for a mesh bag that she had lost. They were looking for the mesh bag, and they had taken her berth to pieces again and had made it up and looked all through her bag, and I asked the conductor what they were looking for, and he told me that she (Mrs. Eox) had lost her mesh bag, and didn’t know whether she had lost it the night before, or after she had gone i to breakfast. They didn’t find that mesh bag,' so far as I know. With reference to this particular transaction, I spoke to the Pullman conductor, and he told me that he would not trust any of the porters; he told me there were some detectives on the train.” .

On cross-examination Mrs. Franks testified as follows:

“Yes, I did say that I didn’t close the curtains at the very top when I went to bed on account of the heat, but I could not see out into the aisle through the curtains. The big heavy curtains were open at the top, but closed at the bottom. The screens have a sort of catch on them in the inside, and the screens were in the same position when I awoke as they were when I went to bed. I don’t think there was any opportunity for anybody to reach into my berth from the outside and get that purse; I mean from the outside of the car. I had opened my bag and I gave him a tip, but this $230 was entirely on my person at that time, and not in my bag. The Pullman porter nor anjdrody else could have known that the $230 was in the bag, unless they watched me put it there after I got in my berth. My curtain was closed, but there was plenty of room, as the next berth was not made. From about 3 :30, the time I looked at my watch, until I got up, I dozed very little. I don’t think there would have been any opportunity during that time for anybody to get into my purse without me being aware of it.
“Yes, it reduces itself to the proposition that the money must have been taken out of my bag between the time X went to sleep and the time I woke up about 3:30.
“Ifrom the little diagram which Mr. Potter has prepared, and which I now examine, I can indicate what berths were made, and which were unmade. Nos. 1, 2, and 3 were unmade, and so far as I remember, with that exception, all the other berths were made down.
“From the time I stepped on that Pullman car until the time I awoke in the morning at 6:30 and went to the toilet and found my money gone, I did not see any one around my berth in that car except the Pullman porter.
“When I got up in the morning at about 6:30 and went to the toilet and discovered the loss of the $230, I did not notice any one at that time except the porter. Later on, when the people began to get up, I noticed that there were other people in the car; I suppose the car was pretty near full. The berths on the back of me were made down, but the ones next to the corner were not made down, neither was the berth directly opposite me made up, nor the one in the next corner was not made up. There were three of the berths not made up.”

Under an appropriate assignment of error, appellant complains of the following paragraph of the court’s charge:

“If you should believe from a preponderance of the evidence that the porter on the car in which the plaintiff was sleeping (if she was so sleeping) purloined any of plaintiff’s money, which she was then and there entitled to carry as ‘baggage,’ then in this event you will find for plaintiff in the amount of such money purloined, if any, and this is true even though you may believe that the plaintiff was guilty of negligence.”

This complaint is based upon the proposition that the evidence does not raise the issue of the theft of Mrs. Franks’ money by the porter, and therefore that issue ought not to have been submitted to the jury.

We think the assignment should be sustained. We have set out above all of the testimony bearing upon this issue' and do not think the facts and circumstances shown by this testimony can be regarded as any evidence that Mrs. Franks’ money, was stolen by the porter. All that the testimony shows is that the money was lost and that the porter had the opportunity to take it. There was nothing in his acts or statements to show that he was guilty oí the theft. The testimony shows that there were a number of other persons in the car during the night whose opportunity to commit the theft was equal to that of the porter. There is no testimony as to the number of persons in the car when Mrs. Franks retired to her berth, and no testimony as to whether any passengers came in or left the ear during the night. The testimony hardly justifies a surmise or suspicion that the porter stole the money, and certainly does not do more, and cannot be regarded as sufficient evidence to raise the issue of theft by the porter. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059; Pullman Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771.

The evidence tending to show negligence on the part of appellant in failing to protect Mrs. Franks from having her money stolen, if sufficient to raise that issue, is extremely meager. In this state of the evidence, the submission of the issue of theft of the money by the porter, when such issue was not raised by the evidence, cannot be regarded as immaterial error, but is one which requires that the judgment he reversed and the cause remanded, and it has been so ordered.

Reversed and remanded.
      «SssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    ABERNATHY RIGBY CO. v. McDOUGLE, CAMERON & WEBSTER CO.
    (No. 997.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 17, 1916.
    Rehearing Denied June 14, 1916.)
    1. Partnership <@=>239(4) — Liability on Partner — Principal or Surety.
    A partner who sold out to his two partners, who assumed a partnership indebtedness but whom the creditor did not release, was bound on the note, and the creditor was entitled to a judgment against him; the agreement between himself and his partners not changing his relation from that of a principal obligor to a mere surety without the creditor’s consent.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 498; Dec. Dig. <@=>239(4).]
    2. Compositions with Creditors <@=>2.7 — Partnership’s Debt — “Composition Agreement with Creditors.”
    Where a creditor of a partnership agreed to take 60 cents on the dollar of their indebtedness in full settlement if a third person would take the partnership’s stock of goods at 60 per cent, and induced other creditors to accept that settlement, and such third person refused to take over the stock on such terms, and the creditor thereafter notified the debtor and the other creditors that it withdrew its proposition to take 60 cents on the dollar, there was no composition agreement between the debtor and the creditors; “a composition agreement with creditors” being an agreement between an insolvent ■or embarrassed debtor and his creditors, whereby the creditors in consideration of an immediate payment agree to accept a dividend less than the whole amount of their claim to be distributed pro rata in discharge and satisfaction of the whole debt.
    [Ed. Note. — For other cases, see Compositions with Creditors, Cent. Dig. §§ 2, 78, 85, 86, 93, 94; Dec. Dig. <@=>27.
    For other definitions, see Words and Phrases, First and Second Series, Composition.]
    3. Compositions with Creditors <@=>13 — Effect — Fraud.
    In 'such case a secret understanding between a bank, one of the largest creditors, the party who was to take over the partnership’s stock, and the partnership, that the bank should be paid its debt in full, was a fraud upon the other creditors, which would defeat a composition agreement if any had been in fact made.
    [Ed. Note. — For other cases, see Compositions with Creditors, Cent. Dig. §§ 23-37, 87-94; Dec. Dig. <@=>13.]
    4. Appeal and Error <@=>1048(3) — Harmless Error — Right to Open and Close.
    Error, if any, in refusing defendant the right to open and close the evidence and argument, was harmless, where the court properly took the case from the jury.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4130; Dec. Dig. <@=>1046(3).]
    Appeal from Dallas County Court at Law; T. A. Work, Judge.
    Suit by the McDougle, Cameron & Webster Company against the Abernathy Rigby Company. Judgment for plaintiff, and defendant appeals.
    Afiirmed.
    Johnson & Harrell, of Cleburne, and W. L. Ward, of Dallas, for appellant. Short & Field, of Dallas, for appellee.
   HUFF, C. J.

The appellee instituted this suit to recover a balance due on a $1,000 note, executed December 1, 1913, by appellant, a partnership composed of L. H. Rigby, J. C. Abernathy, and W. B. Harrell. The credits made on the note were set out with the date thereof, leaving a balance amounting to — principal, interest, and attorney’s fees — $306, at the date of the trial.

The appellants allege that Rigby sold out his interest in the partnership, and the other two parties, Abernathy and Harrell, assumed the indebtedness due appellee, together with all other indebtedness due by the partnership, and that appellee agreed to release him from the debt. It is also alleged that by a composition agreement with the creditors of the firm and with appellee, by which they were to take 60 cents on the dollar of the indebtedness, that appellants were not indebted in the amount sued for, and that since such agreement 'appellants have paid $100, and that 60 cents on the dollar of the balance due on the note, less the $100, left the sum now due about $125. These allegations are each and all denied by • the appel-lee.

The facts show that Rigby did sell out his interest in the partnership businesses alleged, and that the remaining partners* assumed the indebtedness. The appellee’s agent was so notified by Rigby, but it is uncontroverted that, when requested to release Rigby, he refused to do so. Rigby admits in Ids testimony that appellee informed him it would look to him and hold him on the note.

The partnership, appellant, was composed of the members as alleged. The facts in this case establish that appellee agreed to take 60 cents on the dollar of their indebtedness in full settlement. J. B. Dobry, an outside party, was to take the stock of goods at 60 per cent., and the agreement, according to Mr. Morgan, appellee’s representative, was that appellee would take 60 cents, provided Dobry bought the goods. Dobry testified that he agreed to take the goods and pay the creditors 60 cents on the dollar, and so notified Mr. Morgan, who agreed to do what they agreed upon, and would take 60 cents on ap-pellee’s debt. It appears that appellants furnished to Dobry a list of their creditors, but upon investigation he found the amounts stated in this list were less than was owing by the firm, and he refused to go through with the trade. While this trade was pending appellee wrote a circular letter to some 10 of the creditors of the partnership and phoned some of them that Dobry was going to purchase the stock and would pay 60 per cent, of the debts, advising that appellee was willing to accept that amount for its claim, and also advised the various creditors to whom it wrote that it would be to their interest to do the same. Some of these creditors wrote to appellee, stating that they were willing to accept the settlement, and these letters were sent to Dobry, who in the meantime, however, had refused to purchase the goods, because, as he says, the dlaims were more than stated on the list, and he so notified appellee. Upon this notice appellee notified all the creditors that it would withdraw its proposition to take 60 cents, and also notified appellant to the same effect. This statement is not denied or controverted.

There is a suggestion in the testimony that the stock of goods was afterwards sold to some one else, but for how much is not shown, or whether the other creditors accepted 60 per cent. There is evidence also that, while Dobry was negotiating for the purchase, the list furnished by appellant shotved an indebtedness to the bank in the sum of $2,000, and that he (Dobry), appellants, and the bank agreed that if he bought the bank would extend the note six months, but Dobry was to indorse the note and pay the full sum due the bank.

The trial court, instructed a verdict for the appellee for the balance due, as shown by the note, after allowing the credits paid thereon. Rigby contends that by the assumption of the other partners he was released, and that he is only a surety by virtue of the assumption. The testimony is uncontrovert-ed that appellee did not release Rigby, but refused to do so upon request. Rigby was bound upon the note and for the debt, and therefore appellee was entitled to judgment against him thereon. Shapleigh v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783; White v. Boone, 71 Tex. 712, 12 S. W. 51. There is no prayer over against the copart-ners by Rigby for judgment, or that the ap-pellee be first required to make its debt out of their property. The agreement of Rigby and his partners as to appellee would not change his relation from a principal obligor to a mere surety without its consent. 90 Tex. 110, 37 S. W. 411, supra.

The assignments are not sufficient to attack the judgment as to its failure to direct execution against the remaining partners’ property first.

The pleadings and facts in this case do not warrant the holding that there was an accord and satisfaction as between appellants and appellee. All that is set out or attempted to be shown by the facts was a composition agreement between the debtors and creditors. This dearly is not shown. The trade upon which the attempted composition was sought did not go through, and appellee then notified appellant it would not take 60 cents, and also notified all the creditors with whom it-had communicated. This fact is not denied or disputed. It is not shown that the other creditors ever acted upon such agreement and accepted 60 per cent., except upon the condition of Dobry’s contract, which he refused to consummate. “A composition agreement with creditors is an agreement between an insolvent or embarrassed debtor and his creditors, whereby the creditors, in consideration of an immediate payment, agree to accept a dividend less than the whole amount of their claim, to be distributed pro rata in discharge and satisfaction of the whole debt.” Lanes v. Squyres, 45 Tex. 382. The circular letter sent shows what the terms of the agreement were to be. Dobry was to buy and pay for the goods and pay the creditors 60 cents on the dollar. This he never did, but refused to do. No other agreement is attempted to be shown, and in so far as the appellee is concerned in this case, what others may have agreed or accepted thereafter could not affect it, especially after it had notified all that it would not take 60 cents when Dobry declined to take the stock of goods.

In this case it was shown that there was a secret understanding between the bank, one of the largest creditors, Dobry, and appellant, which was unknown to appellee at the time, and not until the day before the trial of this case was it informed of such secret understanding; that is, that the bank should be paid in full its debt. This was a fraud upon the other creditors, and would defeat the composition agreement relied upon, if it in fact had been made. Willis Bros. v. Morris, 63 Tex. 458, 51 Am. Rep. 655; Dansby v. Frieberg, 76 Tex. 463, 13 S. W. 331.

Appellant complains at the action of the¡ court in refusing to permit them to open and close the evidence and argument. If error, it is harmless, as the court took the case from'the jury, and we believe, under the facts of this case, he properly did so.

The case will be affirmed.
      <@^>Por other cases see same topic’and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MARTIN v. BLAIR & HUGHES CO.

    (No. 8361.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 15, 1916.
    Rehearing Denied May 20, 1916.)
    1. Guaranty <@^30 — Requisites — Written Guaranty — Form.
    Where defendant wrote to the president of a corporation guaranteeing a third party’s debt he knew was due the corporation, the guaranty was available to the corporation.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 30-32; Dec. Dig. <§r=>30.]
    2. Guaranty <@=^36(2) — -Operation—Extent oe Liability.
    Where defendant guaranteed a third party’s debt due plaintiff, he was liable only for the then existing debt with legal interest, and not for the interest and attorney’s fees stipulated in notes subsequently made by the debtor to plaintiff for the debt in question.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 38; Dec. Dig. <§=»36(2)J
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Action by the Blair & Hughes Company against F. D. Martin. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    A. T. Cole, of Clarendon, for appellant. Huff, Martin & Bullington, of Wichita Falls, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

Plaintiff, Blair & Hughes Company, a corporation, filed suit against F. D. Martin, in the district court of Wichita county, May 15, 1915. Defendant’s answer consisted of a general demurrer, general denial, and a plea of absence of consideration for the execution of the letter and instrument set out in plaintiff’s petition, and under which Martin was sought to be bound. It is agreed by the parties hereto that the facts set out in plaintiff’s original and supplemental petitions are true, but it is contended by the defendant that such facts do not constitute a cause of action against him. Therefore, as a predicate to our conclusions as to this issue, we will note herein what we consider to be the material portions of such pleadings.

Plaintiff alleged it was a corporation doing a wholesale grocery business, with its domicile at Wichita Falls, Tex., and that the Martin-Bennett Company was a mercantile corporation, with its place of business at Jericho, Tex. That F. D. Martin, during 1913 and 1914, was a stockholder in said latter corporation. That on March 21, 1914, Martin-Bennett Company was indebted to plaintiff in the sum of $1,098.71, for merchandise, and that the account was at said time long past due. That plaintiff was demanding payment of said account, and informed said defendant Martin of the existence of said indebtedness, and that unless personal, or other satisfactory, security was given plaintiff, it would no longer carry said account. That for the purpose of inducing plaintiff to close said account with notes, and to extend the time of payment of said indebtedness, defendant Martin wrote the following letter to Wiley Blair, president of plaintiff company.:

“Ft. Worth, Texas, March 21, 1914.
“Mr. Wiley Blair, Wichita Falls, Texas — Dear Mr. Blair: After my phone conversation with you a few days ago, I wrote to Mr. Bennett in regard to the Jericho matter. I had a letter from him to-day stating that he had taken up this matter with your representative and that he would be able to pay your firm this summer, and had offered to close the matter with note. He assures me that he will be able to pay every dollar the firm owes, if given time. When I left there I turned everything over to Bennett with the understanding that he would liquidate, and I have every confidence in his ability to do so. I appreciate the courteous and lenient manner in which you have treated us, and assure you, you will not lose anything on the Martin-Bennett Co., and you can look to me to see that this promise is carried out.' Bennett is straight as a string, and you can absolutely rely on his making good any promise he makes. I feel sure you and he can adjust this matter, and having put it in his hands I would rather he make the settlement. If you are in Ft. Worth, any time soon, I would be glad to talk this over with you. Bennett wrote me that he is getting the accounts due the firm into secured notes payable this fall.
“With kind personal regards, I am,
“Fours very truly,
“[Signed] F. D. Martin.”

That defendant Martin caused the letter to be delivered to plaintiff, and thereby promised to answer for the debt of Martin-Bennett Company. That plaintiff accepted said guaranty contained in said letter, and so advised defendant. In pursuance of said agreement between plaintiff and defendant, plaintiff accepted three notes, each for $200, and one note for $498.71, all dated April 1, 1914, bearing interest at 10 per cent, per an-num from date, and 10 per cent, attorney’s fees, payable at Wichita Falls; said notes being signed by Martin-Bennett Company, acting by its vice president, J. G. Martin. That subsequently Martin-Bennett Company became insolvent, and that the only payments made on said notes, which were alleged to be past due, aggregated $184.51. Plaintiff sued for the balance of principal, interest, and attorney’s fees, as the notes provided. It was alleged that defendant had been duly notified of the failure of Martin-Bennett Company to pay said notes, and that he had failed to pay the same.. That Martin-Bennett Company had been adjudicated a bankrupt.

Judgment was rendered June 21, 1915, for plaintiff in the sum of $1,136.40, and defendant appeals.

We conclude that the trial court did not err in holding defendant liable as a guarantor. While it is a generally accepted principle that only the particular person to whom the guarantee is made, or to whom it is directed, has the legal right to act thereunder or rely thereon, and that the law of guaranty must be strictly construed and applied, it being lex strictissimi juris (Smith v. Montgomery, 3 Tex. 199; Brandt on Suretyship and Guaranty, § 117; Donley v. Bush, 44 Tex. 8; McRea v. McWilliams, 58 Tex. 333; Schoonover v. Osborne, 108 Iowa, 458, 79 N. W. 265; Crane v. Specht, 39 Neb. 131, 57 N. W. 1018, 42 Am. St. Rep. 567), yet we think the fact that this letter was directed to Wiley Blair, whom the petition alleges to have been the president of plaintiff corporation, would not cause the offer to come within the inhibition of the strict rule laid down by the authorities. Plaintiff, being a corporation, must have acted through its duly constituted officers. It is shown that the indebtedness due by Martin-Bennett Company was to the Blair & Hughes Company, not to Blair as an individual, of which fact defendant was well informed. It is admitted, as alleged in the petition, that the letter was written to “Wiley Blair, president of Blair & Hughes Company.” As it is said in 20 Cyc. p. 1431:

“Where it appears upon the face of the letter of, guaranty that it is addressed to some one in’a representative capacity, or there is some uncertainty as to who is intended to avail himself of the guaranty, parol evidence is admissible to identify the real party in interest.”

Where the offer was made to a person designated as president, parol evidence was held to be admissible to show that the real party intended was the bank of which the addressee was president. Bank v. Peck, 28 Vt. 200, 65 Am. Dec. 234. It was pleaded, and therefore admitted as true, that defendant “caused this memorandum in writing * * * to be delivered to plaintiff, and thereby promised to plaintiff to answer to it for the debt of the said Martin-Bennett Company.”

While we have carefully examined appellant’s 26 assignments, the first 25 presenting practically the same questions, yet we do not deem it necessary to discuss each separately. We find no reversible error presented in said assignments 1 to 25, inclusive, and hence they are overruled.

The twenty-sixth and last assignment alleges error in the action of the court in rendering judgment for 10 per cent, interest on the notes, and 10 per cent, attorney’s fees, and we believe the contention should be sustained. The promise or guaranty of defendant, as we view it, went only to the debt then owing plaintiff, and should not be extended so as to include more than the principal sum due April 1, 1914, when the open account was closed by notes, with legal interest thereafter. Vogelsang v. Mensing, 1 White & W. Civ. Cas. Ct. App. § 1165.

Therefore we will reform the judgment, so as to give plaintiff judgment for the principal due April 1, 1914, less the payments made and pleaded, with interest at 6 per cent., and, as so reformed, the judgment will be affirmed. The costs of appeal will be taxed against appellee.

Reformed and affirmed.
      <§r^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    LITTLE v. NICHOLSON.
    (No. 7227.)
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1916.)
    Husband and Wife &wkey;>248 — Community Property — Invalid Marriage.
    Where, when a man undertook by marriage ceremony to marry a woman, he had, as at all times thereafter, a living wife from whom he was not divorced, property purchased by him and the second putative wife from their joint earnings, the deeds naming both as grantees, was not at any time the community property of himself and such wife, but was the joint or partnership property of the two, so that the putative wife was not divested of her one-half undivided interest in such property by levy and sale under judgment against her husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 880; Dec. Dig. <®^>248.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by Carrie E. Nicholson against R. N. Little. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Edward H. Bailey, of Houston, for appellant. Atkinson, Graham & Atkinson, of Houston, for appellee.
   LANE, J.

This is a suit in trespass to try title, filed by appellee, Carrie E. Nicholson, on April 24, 1913; appellee Nicholson in her original petition alleging that she and appellant, R. N. Little, each owned an undivided one-half interest in lots numbered 8, 9, 10, 11, and 12, in block No. 19, of West Houston addition to the city of Houston, Harris county, Tex., of the reasonable value of $1,000, and that appellant Little refused to recognize her one-half interest, and that on the 1st day of January, 1913, he entered upon said land and dispossessed appel-lee Nicholson therefrom, and has ever since the said last-named date continued to withhold from appellee the possession thereof, to her damage in the sum of $250. Appellant Little filed his original answer to said petition on October 16, 1913, which original answer is composed of a general demurrer, general denial, and a plea of not guilty, with prayer for judgment of the court that appel-lee take nothing by her suit, and for costs of court. On October 16, 1913, there was filed in said suit an agreement of the evidence, or a statement of the facts,* on which said suit should be and was submitted for trial, said agreement of the evidence or statement of facts being duly signed by the attorneys of record of the parties to said suit, which agreement of the evidence, or statement of facts, will be hereafter set out in full. On November 22, 1915, the case was tried before the court, a jury having been waived, and resulted in a judgment for appellee, Carrie E. Nicholson, for title and possession of an equal undivided one-half of said lots, and for costs of court.

By appellant’s first and only assignment it is insisted that the trial court erred in rendering judgment in favor of appellee for a one-half undivided interest in property sued for, because such judgment has no support by facts agreed to by both parties to the suit; such agreed facts being all the evidence submitted.

The agreed facts upon which the case was tried are as follows:

“(1) That tlie property in controversy between plaintiff and defendant consists of lots numbered 8, 9, 10, 11, and 12, in block No. 19, West Houston addition to the city of Houston, in Harris county, Tex.
“(2) That plaintiff, Carrie Nicholson, was formerly known by the name of Carrie Howard. That on the-day of-, 1897, plaintiff in good faith went through a marriage ceremony with George W. Howard, believing that the said George W. Howard had the right to marry her, and knowing that there was no reason why she on her part was not free to marry him, and they subsequently lived together and held themselves out as man and wife until December, 1903, when the said Howard left the country and has not been heard from since. That plaintiff did not learn of his former marriage until 1904, after he left.
“(3) That at the time of said attempted marriage between the said George W. Howard and this plaintiff, the said George W. Howard had a lawful wife, named Hattie Howard, who resided in the tovfii of Yelleville, Ark. and that he has never been'divorced from said Hattie Howard.
“(4) That on June 3, 1902, a deed was made by Wm. E. Eloyd and Adelia H. Floyd to the said George W. Howard and Carrie Howard to all of said property except lot No. 11.
“(5) That on June 21, 1902, a deed was made by J. S. Hansford conveying lot No, 11 to the said George W. Howard and Carrie Howard, and that said George W. Howard and Carrie Howard were both named as grantees in each of said deeds, and the consideration was paid from their joint earnings.
“(G) That on the 24th day of April, 1903, while plaintiff and the said George W. Howard were thus living together and holding themselves out to the public as man and wife in the city of Houston, Harris county, Tex., defendant, R. N. Little, loaned to the said George W. Howard the sum of $115. This note was secured by a lien on a barber shop belonging to said Howard, from which the sum of $35 was realized and credited on the judgment against Howard. That on the 3d day of November, 1903, this defendant sued the said Howard in the justice court of Harris county, Tex., precinct No. 1, on the note given for said $115, and on the 30th day of November, 1903, obtained a judgment against him for the sum of $126.70, and costs of court, amounting to $9.55, making á total of $136.25 on which execution was'issued on the 11th day of December, 1903, and an abstract of judgment was duly filed and recorded in the judgment records of Harris county, Tex., on the 6th day of February, 1904, and on the 16th day of March, 1911, alias execution was issued out of said court against the said Howard, and on May 2, 1911, the constable of said precinct No. 1, Harris county, Tex., levied said execution on said property, and, after legal notice, sold all the right, title, and interest of the said George W. Howard in and to the said lots 8, 9, 10, 11, and 12, in block 19, West Houston addition to the city of Houston, Harris county, Tex., to this defendant, R. N. Little, and a deed thereto was executed by said constable to defendant, R. N. Little, and forthwith recorded in the deed records of Harris county, Tex. Said R. N. Little bid the sum of $50 at said sale, which was credited on his judgment against Howard.
“(7) The only question to be determined in this cause is as to whether said sale passed the title from this plaintiff to R. N. Little. The said R. N. Little claims that said land was community property between the said George W. and Carrie Howard, and subject to community debts, and that the sale as made passed the entire property to defendant, and plaintiff claims that she was a joint owner in said property, that, as there was never any marriage between her and the said George W. Howard, she had no community interest in said property, that the real wife, Hattie Howard, had a community interest in the half of said property which belonged to the said George W. Howard, and that the interest of plaintiff was that of a joint tenant or partner in acquiring said property, and that as there was no judgment of execution against her individually no title to her half of said property passed to the said R. N. Little at said constable’s sale. This question is submitted for the consideration of the court.”

In the case of Chapman v. Chapman, 32 S. W. 564, it is said:

“It being admitted that there was no divorce, the court cannot presume or find that there was, and hence Thomas Chapman was legally incapable of contracting a second valid marriage, and his connection with Emma Chapman, though assumed under the forms of a lawful and regular marriage, did not have any validity as a marriage. Under the laws of this state, a man cannot, while legally married to one woman, form a legal marriage with another. The earlier decisions as to the effect of putative marriages on property rights under the Spanish law are not applicable to attempted marriages entered into in this state since the adoption of the common law and our statutes regulating the subject. The opinion of Judge Walker in Routh v. Routh, 57 Tex. 589, in our judgment correctly states the law on this subject. The right given by our statutes to the survivor of a marriage to administer the estate of the deceased spouse and the property which belonged to them in common (Rev. St. arts. 2165, 2167, 2181) is given to him or her who is recognized by the law as the lawful husband or wife of the deceased, and, as appellant was never lawfully married to Thomas Chapman, she had not the right to administer in preference to any one else. For the same reason there was no community estate, such as is contemplated by the statute, between herself and the deceased. The community7 estate is created by law as an incident of marriage, and does not arise from contract between the parties. It is created by law only as between those who occupy towards each other the relation of husband and wife. Whatever may be the interest of parties related to each other as were appellant and Thomas Chapman, in property acquired during their connection, such interests do not constitute the community estate recognized by law to exist between the parties to a lawful marriage. If appellant had an interest in any of the property which was sought to be brought into this litigation, it was because she acquired right or title to it in some other way than by the mere operation of the statute under which the right to half of the property acquired by either husband or wife during marriage is vested in the wife. Such right is given by law to the wife, as such, because she is the wife, and not because of the performance of services to the husband, or because she is permitted by her companion to assume the station and enjoy the other privileges belonging to a wife, where she is not such in law and fact. If appellant acquired the right to any of the property, or an interest in it, by the operation of other principles, it belongs to her in her own right, and needs no administration. There was no marital partnership between herself and Thomas Chapman such as the law establishes between husband and wife as resulting from marriage which needed winding up, and hence there was nothing upon which her claim to administer a community estate could rest. The only community estate was that of Thomas Chapman and appellee. The right to the appointment as administratrix of Thomas Chapman, as well as the right, as survivor of the marriage, to control the community estate, belonged to appellee, and appellant has no ground to complain that the court below so held.”

It being admitted that at the time George W. Howard undertook by marriage ceremony, to marry and make appellee, Carrie Nicholson, his wife, and that at all times since said time, he had! and has a living wife, from whom he has never .been divorced, it is evident that the property in question was never at any time the community property of himself and Carrie Nicholson, but that it was the joint or partnership property of the two. This being true, appellee, Carrie Nicholson, could not be, and she was in fact not, divested of her one-half undivided interest in said property by the levy and sale under the judgment against George W. Howard. The purchaser at such sale acquired only the undivided interest of George Howard, or the community interest of Howard and his real wife, who resided in Arkansas from the time of the pretended marriage of Howard to Carrie Nicholson until the land in question was sold under execution to pay Howard’s debt.

The deeds from W. E. Eloyd and X S. Hansford, by which the property in question Was conveyed to George W. Howard and Carrie Nicholson, conveyed the land to such parties by naming both of them as vendees. Such conveyances were to such parties as partners, or joint investors, and not as husband and wife, and therefore the title to one-half undivided interest therein passed to and vested in Carrie Nicholson, of which she has not been divested by the sale under the said judgment against said Howard, and the court did not err in so holding and in rendering judgment for appellee.

The judgment of the trial court is affirmed.

Affirmed.

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


author: MOURSUND, J.

text:
    BRADY v. RICHEY & CASEY.
    (No. 5630.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 17, 1916.
    Rehearing Denied June 14, 1916.)
    1. Brokers <&wkey;88(l) — Action eor Commission —Sufficiency oe Evidence.
    In an action for a commission for effecting a lease of defendant’s theater property through negotiations carried on by plaintiff and its employe at defendant’s solicitation, and with defendant’s acquiescence and acceptance of benefits, evidence held to sustain a verdict for the plaintiff.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;86(l).]
    2. Brokers <&wkey;82(4) — Action for Commission —Pleading—'Variance.
    In a broker’s action for a commission for effecting a lease of defendant’s property for a term of 15 years, the failure of the petition to show that the lease contained a provision under which it might be canceled by the lessee on the forfeiture of a certain amount did not prevent a recovery on a ground of a variance between the allegation and proof.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 103; Dec. Dig. <í&wkey;82(4); Pleading, Cent. Dig. § 1334.]
    3. Brokers Commission — Amount.
    Under an express agreement that a broker’s services should be rendered to an owner directly soliciting such services to effect a lease, or under an implied agreement showing the owner’s appropriation of such services, and where the compensation was not agreed upon, the law implied a promise to pay a reasonable amount.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. &wkey;?69.]
    4. Brokers &wkey;>8(3) — Action eor Commission —Authority from Owner.
    In a broker’s action for a commission for effecting a lease of defendant’s property, evidence held to show the defendant’s express authority to secure a contract to rent to a certain party on the terms finally embraced in the contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. <S&wkey;8(3).]
    5. Brokers <&wkey;82(4) — Action for Commission — Commission—Evidence.
    A pleading that defendant became liable to pay the fair and usual commission for a broker’s services in effecting a lease was sufficient to authorize proof of what was the reasonable value of the services performed.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 103; Dec. Dig. &wkey;>82(4); Pleading, Cent. Dig. § 1334.]
    6. Customs and Usages &wkey;>18 — Pleading and Proof — Knowledge—Broker’s Commission.
    In a broker’s action for a commission for effecting a lease, where it was not alleged that the defendant knew of any custom as to the commission for such services, or that any custom prevailed -which was so commonly known that he was legally chargeable with notice thereof, the custom of the real estate business would not be binding upon him and enter into the contract alleged to be made by him, so that proof of such custom was inadmissible.
    [Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 40; Dee. Dig. &wkey;sl8.]
    7. Customs and Usages <&wkey;ll — Pleading-Effect.
    Where it is pleaded and proved that there is a custom as to the commission for effecting a lease of which a party defendant had knowledge, or that there was a custom so notorious as to charge him with‘knowledge thereof, the law implies a promise to pay the compensation fixed by such custom.
    [Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 22; Dec. Dig. <@=^>11.]
    8. Brokers <&wkey;69 — Compensation—Amount.
    Where no custom binding on the parties is pleaded and proven, a broker is entitled to reasonable compensation in tbe absence of an agreement as to tbe amount.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. <5&wkey;69.]
    9. Brokers <&wkey;85(10) — Action for Commission — Evidence—Custom.
    In a broker’s action for commission for effecting a lease for a term, where no custom as to tbe amount of the commission was pleaded and proven, tbe end accomplished, as well as tbe time and effort expended, were to be considered, though evidence that there was a customary rate for renting property for a term, and that there was a custom for the landlord to pay the commission for leasing property, was inadmissible.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 114; Dec. Dig. <5&wkey;85(10).]
    10. Appeal and Error <&wkey;92G(7) — Review-Presumption— Qualification of Witness.
    Under an assignment of error in the admission of testimony of a witness as to a reasonable commission for effecting a lease, not objecting that the witness had not qualified himself to state his opinion on that matter, it would be assumed that he was duly qualified.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3745, 3746; Dec. Dig. <&wkey; 926(7).]
    11. Evidence <&wkey;472(16) — Matters Directly in Issue — Amount of Commission.
    In such action, testimony of a witness that he considered 2 or 3 per cent, to be a reasonable commission for effecting a lease for a term, relating to the direct issue in the case, was inadmissible.
    [Ed. Note. — Eor other eases, see Evidence, Cent. Dig. §§ 2186, 2187; Dec. Dig. &wkey;472(10).]
    12. Appeal and Error <&wkey;728(l) — Assignment of Error — Sufficiency of Objection.
    An assignment that there was no basis for a question as to what was a reasonable commission for a broker’s services on the ground that the services alleged to have been rendered were different from those stated in the hypothetical question submitted was too general, because not pointing out just what should have have been changed in the question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3010; Dec. Dig. <&wkey;728(l).]
    13. Evidence <&wkey;533(3) — Examination of Expert — Hypothetical Question.
    In a broker’s action for a commission for effecting a lease for a term, it was not error to permit him to embrace in a question as to what was a reasonable commission for such services his own construction of the terms of the lease, especially in the absence of a construction thereof by the court; as, where the terms of an instrument are ambiguous and the question as to what the parties intended is for the jury, it is proper to ask a witness to state his opinion based upon the construction contended for by a party, upon which the other party may inquire thereon, taking into view his construction of the contract.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 2371; Dec. Dig. <¿=3553(3).]
    14. Trial <&wkey;136(3) — Question for Jury-Construction of Contract.
    If a contract is not ambiguous it is proper to ask the court to construe it and to require it to be described in all questions in accordance with the court’s construction, and if it is ambiguous, but the evidence makes its intention clear beyond dispute, it is proper for the court to construe the contract for the jury and require them to accept such construction in estimating the value of the services.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 326; Dec. Dig. <í&wkey;136(3); Pleading, Cent. Dig. § 75; Witnesses, Cent. Dig. § 851.]
    15. Evidence <&wkey;543(2) — Opinion Evidence-Value of Services.
    A skilled witness, who is familiar with services connected with some particular profession, trade, or calling, may estimate their value, and it is not required that he should be intimately acquainted with the nature of the services which he is appraising, but he may know them in a very general way.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. | 2356%; Dec. Dig. <&wkey;543(2)J
    16. Evidence <&wkey;317(l) — Declarations — Conversations between Third Persons.
    In a broker’s action for a commission for effecting a lease for a term, evidence of a conversation, between the broker’s employs and the lessee, not in the presence of the lessor, to the effect that the lessee had made a bad lease and the lessor a good one, was inadmissible.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1174; Dec. Dig. &wkey;317(l).]
    17. Evidence &wkey;>471(6) — Facts or Conclusions.
    In such case, the lessee should be required to testify to the facts with regard to what occurred between himself and the -broker’s employs, instead of his conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2154; Dec. Dig. <&wkey;471(6); Witnesses, Cent. Dig. § 833.]
    18. Brokers <&wkey;85(10) — Action for Commission-Evidence.
    The fact that plaintiff’s services had procured a lessee who had paid seven months’ rent might be considered by the jury in estimating the reasonable value of the services.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 114; Dec. Dig. &wkey;85(10).]
    19. Brokers <&wkey;54^ — Action for Commission —Responsibility of Lessee — Estoppel.
    Where a broker alleged a contract to procure a responsible lessee, the defendant, who accepted the lessee, procured and entered into a lease with him, was estopped from alleging anything against the lessee’s responsibility, except fraud on the part of broker’s employé, inducing his acceptance.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. &wkey;54.]
    20. Brokers <&wkey;85C3) — Action for Commission — Evidence—Relevancy.
    Where the lessor did not allege fraud on the part of the broker’s agent in inducing his acceptance of the lessee, testimony of the lessee that he was able to carry out the lease contract was irrelevant, and it was also irrelevant in view of the trial court’s construction of the contract, so that the lessee could comply with it by failing to pay rent, thereby forfeiting a certain amount on deposit with the lessor.
    [Ed. Note. — For other cases, see' Brokers, Cent. Dig. § 106; Doc. Dig. <&wkey;>85(3).]
    21. Appeal and Error &wkey;>1030(2) — Harmless Error — Admission of Evidence.
    Such evidence was calculated to impress the jury with the idea that it was the lessee’s intention to keep the property and pay on the lease promptly during the term and to cause them to allow compensation on the theory that the lease would continue for the entire time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154; Dec. Dig. &wkey;>1050(2).]
    Appeal from District Court, Bexar County ; W. E. Ezell, Judge.

      Action by Ricbey & Oasey against Tilom-as E. Brady. Judgment for plaintiffs, and defendant appeals.
    Reversed, and cause remanded.
    Taliaferro, Cunningbam & Birkhead and Leo Tarleton, all of San Antonio, for appellant. Boyle & Storey and Wm. Church, all of 'San Antonio, for appellees.
   MOURSUND, J.

R. A. Richey and L. A. Casey, composing the firm of Richey & Casey, sued Thos. E. Brady for $5,400, with interest thereon at the rate of 6 per cent, per annum, alleging: That plaintiffs were engaged in the real estate, rental and brokerage business in the city of San Antonio, and in order to properly conduct the same were compelled to employ many agents. That defendant, Brady, is the owner of a certain building, a portion of which is adapted and intended for use as a theater. That—

“on or about February 1, 1914, plaintiffs, acting by and through one of their said agents and employes, to wit, R. C. Hill, were duly employed by said defendant, as his agent, by directly soliciting their services, by approving and participating in all negotiations, and by agreeing to, acquiescing in, and accepting the benefits of said services and negotiations, to secure a responsible tenant, under contract of lease, for said theater, said lease to cover a period of 15 years, at a" monthly rental of $1,500, payable in advance, the yearly rental of said theater being the sum of $18,000, or for a total amount of $270,000 for the full term of said 15 years; that in pursuance of said employment by said defendant, plaintiffs, acting by and through their said agent and emplomé, R. C. Hill, immediately proceeded to carry out; the terms and conditions of their said employment, by energetic negotiations for ^securing a tenant for said theater, under the terms and conditions and for the period of time for which the same was to be leased, said defendant participating in said negotiations, instructing said plaintiffs by and through said Hill how such negotiations should be conducted, said negotiations being directed at and confined to one W. J. Lytle, until on or about July 21, 1914, when plaintiffs, acting by and through said Hill, succeeded in successfully closing a contract in writing for the lease of said theater, the same being made and entered into by and between the defendant and the said Lytle, under the terms and conditions heretofore set out, to wit, at the rate of $1,500 per month for the full term of 15 years, said contract of lease being prepared by said plaintiffs, acting by and through said Hill, under the instructions and at the special instance and request of said defendant; that in pursuance of the provisions, conditions, and terms of said contract, on or about September 10, 1914, a formal lease was prepared . by said Hill and signed by and between said Lytle and said defendant, Brady, embodying substantially the terms of said contract, whereby the said Lytle agreed and bound himself to lease said theater, and did lease the same, for a period of 15 years at an annual rental of $18,000, payable monthly in advance at the rate of $1,500 per month, and said lease since said date, and now, is in full force and effect.”

Plaintiffs further alleged that:

“In addition to and irrespective of the solicitation, approval, acquiescence in- and acceptance of said services of plaintiffs as aforesaid, it is the usage and custom, in transactions of the nature and character herein set out, to wit, in the rental, lease, or sale of real property, building’s, or otherwise by an agent or -broker, that his commission or compensation therefor shall be paid by the owner of such property so rented, leased, or sold, unless by special agreement or understanding the same shall be paid by the' lessee or vendee thereof, and plaintiffs specially allege that no such contract, agreement, or understanding was had in this instance by or with either said defendant or the said W. J. Lytle”

—that by reason of said services so rendered by the plaintiffs the defendant became liable to pay the fair and usual commission and compensation for such services, and that the usual, reasonable, and customary fee is and was 2 per cent, of the amount due for the full period, namely, 2 per cent, of $270,-000. Defendant’s answer consisted of a general demurrer, special exceptions, and denials of the material allegations of the petition. The trial resulted in a verdict and judgment in favor of plaintiffs for $5,400, with interest thereon at the rate of 6 per cent, per annum.

The first 10 assignments of error question the sufficiency of the evidence to sustain the verdict and judgment. In deference to the verdict of the jury we find that Brady, knowing Hill to be an employé of Richey & Oasey, who were engaged in the real estate and insurance business, expressly agreed to avail himself of Hill’s services for the purpose of procuring a lessee for the theater portion of his building for 15 years; that the conversations between them were of such character as to reasonably charge Brady with notice that Hill expected compensation for his services; that no inquiry was made by Brady with regard to the amount of compensation he would be expected to pay, nor was any statement made by Hill in regard to compensation until after the preliminary contract was signed; that Hill prepared the preliminary contract, which was approved by Brady and Lytle, and a meeting was then had at which it was signed by them; that the preliminary contract provided for various things to be done by Brady in preparing the theater for use, and fixed September 19, 1914, as the last day upon which a final contract should be executed; that the final contract was prepared by Brady, who, on September 10, 1914, reminded Hill that the final contract must be signed, and asked him to bring Lytle to Brady, and Hill did so, whereupon the final contract was signed. Hill testified that after the preliminary contract was signed he told Brady he presumed the latter was then ready to pay the commission ; that Brady first said he supposed Lytle was going to pay the commission, to which Hill replied that it was always customary for the owner to pay the commission ; that he gave Brady a letter he had procured from the Real Estate Exchange, stating what the customary commission would be, but Brady did not have his glasses and said he would read it later; that in the next conversation Brady said he would talk to Hill about tbe commission in a few days; that in tbe third conversation Brady said be did not think tbe matter of commission ought to be taken up until after tbe lease was signed, as tbe first was just a preliminary contract, and Hill said that would be agreeable; that after tbe final lease was signed be again broached the subject of commission, whereupon Brady complained of illness, and asked Hill to see him at tbe end of tbe week; that be did so, and Brady put him off until tbe first of tbe next week, and at that time contended be ought not to pay a commission on tbe full 15-year lease because he did not know that tbe tenant would stay in tbe building; that they argued tbe matter for quite a while, and Brady finally told him to come back in a few days; that finally Brady told him be thought it would be better to leave it to Richey & Casey to suggest tbe basis for estimating commission, and for Hill to tell them to see Brady; that be notified Richey & Casey, and bad no further conversations with Brady. Richey & Casey took up tbe matter with Brady, but no agreement was reached. Richey & Casey contended for 2 per cent, on the amount which would be paid in tbe 15 years if tbe lease was kept in force, while Brady contended that Lytle was not bound to carry out tbe lease, for there was a clause in the contract which permitted him to give it up by forfeiting $9,000. The final contract, in part, reads as follows:

“Por and in consideration of nine thousand ($9,000.00) dollars the receipt of which is hereby acknowledged, first party this day agrees to lease to second party the theater, now in course of construction, at the corner of St. Mary and College streets in this city for a term of fifteen (15) years beginning on tbe date that same is completed and ready for occupancy and ending on the corresponding day in the year 1929, fifteen (15) years thereafter.
“For the use thereof second party is to pay fifteen hundred ($1,500.00) dollars per month or eighteen thousand ($18,000.00) dollars per year, paying the same monthly in advance.
“As a guaranty for the carrying out of the provisions of the lease contract second party shall deposit with the first party nine thousand ($9,000.00) dollars on which deposit first party will pay 6 per cent, interest per annum, paying the same semiannually as it accrues. Said nine thousand ($9,000.00) dollars to apply as the rent for the last six months of the lease contract if not forfeited under the conditions therein specified.
-“Should there at any time be any default in the payment of rent for five days from the date it is due or in any of covenants herein contained, then it shall be lawful for the first party to re-enter said premises and remove all persons therefrom without prejudice to any legal remedies which may be used for the collection of rent, all and every claim for damages for or by said re-entry being expressly waived, and should legal services be employed to collect any rents after default is made, then and thereupon 10 per cent, is hereby added to the rent or rents so defaulted for an attorney’s fees. And in ■the event of such default the guaranty of nine thousand ($9,000.00) dollars shall at once become the property of first party as liquidated damages in full settlement for breach of the lease contract.”

Tbe other portions are not deemed material in this suit. Tbe preliminary contract contained tbe same language with reference to' time of lease, and tbe clause relating to default is almost a literal copy of a similar clause in tbe preliminary contract.

Tbe above conclusions of fact dispose, adversely to appellant, of most of bis contentions with regard to tbe sufficiency of the evidence, but there is one which requires further consideration. Appellant contends that the evidence wholly fails to show that appellees procured for appellant a lease contract such as is described in the petition; that tbe petition alleges plaintiffs were employed to secure a lease contract for 15 years, at a monthly rental of $1,500, payable in advance, or for tbe total amount of $270,000 for tbe term of 15 years, and that the contract introduced in evidence is one which can be forfeited by Lytle at any time by failing to pay, in which event tbe $9,000 deposited with Brady would be forfeited as liquidated damages for tbe breach of tbe contract, and that therefore plaintiffs only secured for defendant an option contract.

We have copied, in stating tbe case, tbe allegations of the petition material to be considered. It will be noted that, in addition to tbe first allegation with respect to tbe nature of tbe employment, the further allegation is made, in paragraph 5, that a contract was successfully closed in writing for the theater, which was entered into by defendant and Lytle under the terms and conditions thereinbefore mentiofied, which contract was prepared by plaintiffs, acting through 1-Iill, under tbe instructions and at tbe special instance and request of defendant.

Tbe question raised is not one which goes to tbe question of whether Brady is liable to plaintiffs under tbe evidence adduced, but whether tbe case alleged has been established by tbe evidence. Had plaintiffs pleaded that they were employed to procure a lease contract containing certain terms and naming all tbe terms of tbe contract introduced in evidence, the objection could not have arisen, nor could it have been urged if a copy of tbe contract had been attached and referred to as a copy of tbe contract which plaintiffs were employed to procure, even if plaintiffs bad stated an erroneous construction of its terms in tbe petition. But plaintiffs relied upon their general description of the contract to be obtained, and their allegation that tbe contract actually executed was such a contract as they bad been employed to secure. When tbe contract is introduced, it is found that it purports to be a lease contract for 15 years, but contains a clause relating to default upon tbe proper construction of which the parties are unable to agree, and which defendant contends renders the contract subject to be terminated by Lytle by failing to pay rent, leaving Brady with no further rights than to retain the $9,000. WMle the last sentence oí that portion of the contract hereinbefore copied, if considered alone, supports the contention, when it is considered in connection with what precedes it, a serious doubt arises as to what the intention of the parties really was. Was it their intention that if Lytle failed to pay rent within five days after it accrued or failed to comply with any other covenant, the contract should be at an end, whether or not Brady elected to so treat it, or did the parties by the words, “such default,” used in the last sentence mean a default availed of by Brady to retake possession of the premises. The contract provides that Brady may, in ease of default, enter upon the premises “without prejudice to any legal remedies which may be used for the collection of rent,” thus evidencing an intention that the rent accrued, at least, is to be paid by Lytle and not to be covered by the $9,000, even if Brady enters upon the premises.

Brady testified to statements on his part, made to Richey, according to which the intention was to provide that Lytle could forfeit the contract at any time upon paying $9,000. But, conceding that the contract contained a clause giving Lytle the right to cancel by failing to pay rent, nevertheless it is a lease contract which may remain in existence for 15 years. Appellant relies upon the cases which hold that where a broker is engaged to sell property the mere procurement of a prospective purchaser who enters into an option to buy the property, but never in fact does so, is not sufficient to entitle the broker to commission. The rule relied on is a correct one, as is the further one that, even if the optional contract is signed by the employer, it will not be construed as a waiver of the original terms of employment and an acceptance of the services as a complete performance on the part of the broker. By granting the option the owner is merely assisting the agent in his efforts to bring about a sale. If the option is exercised, or the person holding the option is willing to exercise it, but is prevented by the owner, the broker becomes entitled to his commission. We do not think these rules apply in this case. The contract finally made by the parties was not a contract to enter into a lease in the future, but constituted in itself a lease. There was nothing further • that the agent could do. The lease was made pursuant to instructions of Brady and was executed' by him. On its face it purported to be a lease for 15 years, and, conceding that it contained a provision under which it could be canceled by the lessee, should that fact be held to make it a different instrument from the one which plaintiffs alleged they were employed to secure, and did secure? To hold that the variance is fatal would be requiring such strictness of accord between pleading and proof as is unnecessary to effectuate the purposes of the rule requiring proof to correspond to the allegations. Defendant was apprised by plaintiffs’ pleadings that they sought to recover compensation for procuring the particular contract, and their failure, in describing the contract, to state that it contained the clause relating to default, setting it out, should not prevent a recovery. We overrule assignments 1 to 9, inclusive.

We regard the objections to the pleadings made in assignments 10 and 11 as being without merit. Plaintiffs alleged an express agreement that the services should be rendered, by stating that defendant directly solicited their services to make the lease, and alleged an implied agreement, by stating facts showing a conscious appropriation by defendant of their labors. In either case, the compensation not being agreed upon, the law implies a promise to pay a reasonable amount.

By assignments 12 and 13 complaint is made of paragraph 1 of the charge. Several objections are urged, but some are too general. It is contended that the court assumes in said paragraph that an express contract was made, but the charge is not subject to such objection. It is contended, further, that there was neither pleading nor evidence justifying a finding of an express agreement of employment, and that the charge did not limit the jury to an implied contract, but permitted them to find whether there was any contract of employment. We have stated our view of the pleadings in discussing the preceding assignments. The evidence of Hill was to the effect that Brady, knowing Hill was with Richey & Casey in the real estate business, expressly authorized Hill to go ahead and see what he could do with the people in regard to renting the theater. As Hill said, “We believe we can rent it,” Brady must have known he was speaking for his employers, Richey & Casey, and his subsequent statements and conduct as testified to by Hill show an express authorization to secure a contract to rent to Lytle on the very terms finally embraced in the contract. The assignments are overruled.

The fourteenth assignment complains of the second paragraph of the charge, wherein the court instructed the jury that if Brady by words, acts, or conduct, if any, authorized Hill to act for him in procuring Lytle as a tenant, and if they found that, through the acts and negotiations of Hill, Lytle executed the contract of lease introduced in evidence, then to return a verdict for plaintiff. The objection is the same as was made to the sufficiency of the evidence, namely, that the pleadings did not authorize a recovery upon the contract introduced in evidence, and, there being no alternative prayer on a quantum meruit, no recovery could be had. We overrule the assignment for the reasons stated in discussing the first nine assignments.

Assignments 15 to 23, inclusive, are overruled.

Plaintiffs pleaded that defendant became liable to pay the “fair and usual commission and compensation for such service”; that the usual, reasonable, and customary fee for such services is and was 2 per cent, of the amount due for the full period of 15 years, namely $5,400. This pleading, we think, was sufficient to authorize proof of what was the reasonable value of the services performed, but not to permit proof of custom, for it is not alleged that Brady knew of any such custom, or that a custom prevailed which was so commonly known that Brady was legally chargeable with notice thereof. As it was not alleged that Brady was engaged in the real estate business, the customs and usages of that business would not be binding upon him and enter into the contract alleged to have been made by him, unless it was alleged and proven that he had knowledge of the custom relied upon, or that the custom was so general or universal that he was chargeable with knowledge thereof. Gano v. Palo Pinto County, 71 Tex. 99-103, 8 S. W. 634; Johnson & Moran v. Buchanan, 54 Tex. Civ. App. 328, 116 S. W. 875; Holder v. Swift, 147 S. W. 690; Groscup v. Downey, 105 Md. 273, 65 Atl. 930.

If it be pleaded and proved'that there is a custom of which defendant had knowledge, or the custom is so notorious as to affect the defendant with knowledge thereof, then the law implies a promise to pay the compensation fixed by such custom. If no custom binding on the parties is pleaded and proved, the broker is entitled to reasonable compensation, and in determining what is reasonable under the circumstances of a given case, the end accomplished, as well as the time and effort expended, should be taken into consideration. Kuling Case Law, vol. 4, §§ 42, 67. It was therefore error to permit plaintiff Eichey to testify that there was a customary rate for renting property upon a term of years and to state what that rate was. Assignments 24 and 25 are sustained. In this connection, we also sustain assignments hi os. 29, 30, and 31, whereby complaint is made because the court permitted plaintiffs to prove that it was the custom for the landlord to pay commission for leasing property.

Assignment No. 32 shows error, which is of little consequence and would not require a reversal, but in view of another trial we call attention thereto.

Assignment No. 26 is overruled. The witness, Khodius, was asked, “What would be the reasonable commission for making a transaction of that sort?” to which he answered, “Two or 3 per cent., as I have stated before.” The question must be confined to the issue made by the assignment of error. Such assignment contains no objection to the effect that the witness had not qualified himself to state his opinion on the subject under investigation, so we assume he had duly qualified. This being the case, there is no merit in the assignment, for the question related to the direct issue in the case.

Assignments 27 and 33 relate to the same character of proof as assignment No. 26, but contain the additional feature that plaintiffs stated to the witnesses that the transaction was one where a piece of property is rented for $1,500 per month, payable monthly, the lease being for 15 years, amounting to $270,000 in all, with a provision that there shall be a deposit of $9,000 as a guaranty, and then asked the witness what would be a reasonable commission for a broker to make that lease. Each replied that 2 per cent, would be a reasonable commission. The objections presented under assignment No. 27 are regarded as without merit. Under assignment No. 33 it is contended that there was no basis for the question, the contention being that the services alleged to have been rendered by the plaintiff were different from those stated in the hypothetical question submitted. This objection was too general, for it did not point out just what should have been changed in the question. Rogers v. Banking Co., 103 S. W. 463. We do not think it was error to permit plaintiffs to embrace in the question their construction of the terms of the lease, especially in the absence of a construction by the court of the terms thereof. In cases in which the terms are ambiguous and oral testimony is adduced, it frequently becomes a question for the jury to determine what the parties really intended, and in such cases it would be proper to ask the witness to state his opinion based upon the construction contended for by plaintiffs, and defendant could then, if he wanted to do so, ask concerning the value of the services, taking into view his construction of the contract. Railway v. Compton, 75 Tex. 673, 13 S. W. 667.

If the contract is one not ambiguous, it would, we think, be proper to ask the court to construe it and to require it to be described in all questions in accordance with the construction given it by the court. If the contract is ambiguous, but the evidence makes its intention clear beyond dispute, it would be proper for the court to construe the contract for the jury, and require them to accept such construction in estimating the value of the services. A skilled witness, who is familiar with services connected with some particular profession, trade, or calling, may estimate their value, and it is not required that he should be intimately acquainted with the nature of the services which he is appraising. He may know them in a very general way. Chamberlayne on Modern Law of Ev. vol. 3, § 2163. But, as the nature of the contract is of such controlling importance in fixing the compensation for its procurement, it appears to us that its correct construction must enter into the basis upon which the jury allows compensation, and the jury’s verdict must rest upon testimony based upon such construction. As the contention is presented by the assignment, we hold that no error is sliown. Both assignments of error are overruled.

The twenty-eighth assignment discloses no error in so far as the question and answer therein copied are concerned.

The thirty-fourth assignment is also overruled.

Assignments 35, 36, and 37 point out errors of such character that we would not be justified in reversing the case thereon, but upon another trial evidence of conversations between Hill and Lytle, not in the presence of Brady, the purport of which was that probably Lytle made a bad lease and Brady a good one, should be excluded, and Lytle should be required to testify to the facts with regard to what occurred between him and Hill, instead of his conclusions.

We overrule assignment No. 38. In estimating the reasonabe value of Hill’s services, the fact that such services have procured a renter who has paid seven months’ rent may properly be considered by the jury.

By assignment No. 39 complaint is made of the admission of Lytle’s testimony to the effect that he was able to carry out the lease contract. This testimony should have' been excluded. It is true that plaintiffs alleged their contract to be one to procure a responsible tenant, but, as Brady accepted Lytle and entered into a lease with him, he is estopped from alleging anything against Lytle’s responsibility, except fraud on the part of Hill in inducing the acceptance. No such issue was raised, and the testimony was irrelevant. In view of the construction placed on the contract by the trial court, the testimony was irrelevant because under such construction Lytle could comply with the contract by failure to pay rent, thus forfeiting the $9,000 on deposit with Brady, and therefore the testimony, if rightly understood, was of no aid to the jury. The testimony was calculated, however, to impress the jury with the idea that it was Lytle’s intention to keep the property and pay the least promptly during the 15 years, and to cause them to allow compensation on the theory that the lease would continue for the entire time. If Lytle’s ability to perform the contract had been an issue, the facts relating thereto should have been called for, and not his conclusion. The assignment is sustained.

The judgment is reversed, and the cause remanded.
      ©=?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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