author: WALTHALL, J.

text:
    SEUREAU v. FRAZER et al.
    (No. 596.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1916.
    Rehearing Denied Dec. 13, 1916.)
    1. Deeds &wkey;>lll — Property Conveyed — Calls fob Metes and Bounds.
    Where there is no suggestion that calls for courses and distances given in a deed are not correct, the deed conveys all the land embraced within its lines, though it is more than the amount stated in the deed and intended to be conveyed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 309-315, 334, 335; Dec. Dig. &wkey;lllj
    2. Deeds <&wkey;>118 — Mistake — Evidence — Quantity of Land.
    A deed conveying lands bounded by-courses and distances and testimony as to a calculation of the acreage thereby embraced is prima facie sufficient to establish the quantity conveyed.
    [Ed. Note. — For other cases, see Deeds, Dec. Dig. <&wkey;118.]
    3. Reformation of Instbuments <&wkey;19(l)— Mistake — Quantity of Lands — Substantial Excess.
    Where a deed stated the acreage conveyed as 157.3, which was the acreage intended, whereas the courses and distances embraced an acreage of 184.6, the excess is sufficient to be material and such that equity will correct, if made by mutual mistake.
    IEd. Note. — For other eases, see Reformation of Instruments, Cent. Dig. §§ 74, 7CL-78; Dec. Dig. <&wkey;>19(l)J
    4. Reformation of Instruments >&wkey;43 — Mistake — Burden of Proof.
    The burden is on the grantor to prove that the excess of land conveyed over that intended was such that a court of equity would correct it, if made by mutual mistake.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §■ 154; Dec. Dig. <&wkey;43.]
    5. Limitation of Actions <&wkey;199(l) — Mistake — Discovery—Evidence.
    In trespass to try title based on mistake in a deed of conveyance, evidence held, sufficient to require the issue whether the mistake was not and could not have been by reasonable diligence discovered prior to the time when the action would be barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 727; Dec. Dig. &wkey;> 199(1).]
    6. Vendor and Purchaser &wkey;>215 — Limitations of Vendor — Mistake—Recovery Against Remote Purchaser.
    A vendor who by mutual mistake conveyed to the purchaser more land than was agreed upon at a fixed price per acre can recover from remote grantees who took from the purchaser under deeds containing the same mistake at a fixed price per acre.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 449 — 452; Dec. Dig. <®=>215.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Trespass to try title by C. S. L. Seureau against S. D. Frazer and others. Judgment for the defendants on directed verdict, and plaintiff appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. A. R. & W. P. Hamb-len, of Houston, for appellees.
   WALTHALL, J.

This suit was brought by appellant, Mrs. C. 8. L. Seureau, a feme sole, against S. D. Frazer and C. Glen Nichols and wife, in trespass to try title, to recover an undivided interest in a certain tract of land in Harris county, and, in the alternative, for general relief. Frazer answered by general demurrer; not guilty; that he is an innocent purchaser for value without notice or knowledge of any of the facts pleaded by appellant; the statutes of limitations of two, four, and five years. Nichols and wife disclaimed, and at the close of the evidence the court instructed the verdict in favor of Frazer.

The assignments and the propositions thereunder are to the effect that the undisputed evidence offered by the appellant shows that as a result of a mutual mistake upon the part of appellant and Lomax appellant had conveyed to Lomax a portion of the Wm. Hardin league of land, described by metes and bounds, containing 27.35 acres in excess of the quantity believed and stated in the deed thereto to have been contained within said metes and bounds; that appellee held said tract of land under mesne conveyances from Lomax; that in each sale of said land from appellant to Frazer such sales were by the acre, and that each purchaser had paid the agreed price per acre for only 157.3 acres, and that no purchaser had paid anything for said excess; that said mutual mistake as to the quantity of land embraced in the deeds had continued and existed in the instance of each sale from appellant down to and including appellee Frazer; that the mistake was material was not discovered until about one year before the filing of suit, and could not have been discovered sooner; that the facts were sufficiently shown to require the submission of the case to the jury.

The contentions of appellee Frazer are that, there being no privity of contract between appellant and appellee, and no mutuality of mistake shown in so far as appellee is concerned, appellee could not be affected by any mistake made in the sale between appellant and Frazer’s remote vendor; that appellant had not discharged the duty or burden of showing an excess in the acreage conveyed; that the conveyance of the land from appellant was by metes and bounds, and that the description so given would control any reference in the deed to quantity, or in the number of acres contained therein, and in the absence of actual notice disclosed by the record that it was a per acre sale, ap-pellee would not be affected; that the statute of limitation of four years barred the cause of action.

The evidence offered by appellant consisted of a deed from appellant to Lomax of date October 29, 1907; deed from Lomax to Nichols ; deed from Nichols and wife to appellee Frazer; the plats and field notes made by Pennington and Peppercorn; the agreement as to the testimony of Nichols; and the evidence of Kellett and Peppercorn. Appellant also put in evidence the deed from appellant to Farrell, and the deed from appellant to Huekley; the dates of these last two deeds being the same as appellant’s deed to Lomax. The three deeds (Lomax, Farrell, and Huck-ley) convey defined portions of the Wm. Hardin survey, which, at the date of the deeds, was owned by appellant. The deeds from appellant to Lomax, from Lomax to Nichols, and from Nichols to appellee Frazer, except as to the dates and considerations, are in the same form, and describe the land conveyed as follows:

“All of that certain tract of land in Harris .county, Tex., a part of the Wm. Hardin league, described as follows: Beginning on the S. bank of Buffalo Bayou at the N. E. corner of a 7614-acre tract of land, a part of the Wm. Hardin league conveyed by G-. N. Phelps and O. I>. Phelps to Peter Blike on the 16th day of March, 1888, by deed recorded in volume 25, p. 613, of Deed Records of Harris County, Tex.; thenee S. with the E. line of Blike tract 5,874.5 feet to a stake for corner; thence E. 1,325.6 to iron stake for corner; thence N. 607 to a 12" pine on S. bank of Buffalo Bayou marked X and at the foot of which is set a 2" iron pipe for corner; thence up said Bayou with its meanders [giving the meanders by courses and distances] to the place of beginning — containing 157.8 acres of land.”

The consideration stated in the deed from appellant to Lomax is:

“The sum of $2,949.20 to me paid and secured to be paid by W. J. Lomax, as follows: [Then follows the statement of the cash and time payments.]”

Kellett, appellant’s son-in-law, testified that in 1907 and 1908 he was attending to appellant’s business; that he had placed the property embraced in said deed with Nichols, a real estate agent, who found the purchasers named; that arrangements were made with the purchasers named for a surveyor, Pennington, to survey off 100 acres for I-Iucklcy, 100 acres for Farrell, and the balance to Lomax; that the surveyor, Pennington, was to ascertain the acreage in the tracts; that the surveyor went out to the land for the purpose of dividing it and computing the acreage in the tracts, and, when he had completed his work, furnished witness with a plat thereof; that the field notes to the tract described in the Lomax deed were furnished by the surveyor, Pennington; that deeds were then prepared and read over by the witness, who took them to appellant. Appellant could not read or speak English, but the deeds were translated to her by her daughter. Witness did not have any knowledge with reference to the acreage contained in the tract deeded to Lomax, and appellant had nothing to do with the transaction other than as stated. The trade witness had with Lomax was to sell Lomax the land at $18 per acre, and at the time he dealt with Lomax he dealt with him on the basis of the acreage which Pennington had furnished, as stated in the deed. Later Huekley claimed that he did not have 100 acres in his tract, and witness then emploj'ed Surveyor Peppercorn to survey the land and make another drawing. Until Peppercorn notified witness of the mistake, witness had no reason to believe and did not know that a mistake had been made in the excess acreage deeded to Lomax, and had he known it he would not have had appellant to sign the deed; that he (witness) was unable to figure the acreage of the tract of land meandered by the stream; that at the time appellant executed the release of the vendor’s lien to Lomax, witness had no further knowledge about a mistake, his knowledge of the mistake obtained through Peppercorn having been obtained subsequent to the release.

Peppercorn testified that he was a civil engineer and surveyor, that the blueprint of the work done by Pennington was given to him, and that he figured after that, and identified the blueprint handed him as the one that Pennington had made. Witness computed the acreage of the Lomax tract as described in the Lomax deed and made a plat of the work which he did, and produced the plat, and said:

“This plat of mine shows, according to Mr. Pennington’s figures, that in the Lomax tract there were 184.65 acres of land. This shows the acreage contained within the boundaries of that tract as designated there by Mr. Pennington, and as I say, I found it to contain 184.65 acres. The work which I did was carefully done.”

Witness checked the Huekley tract; found there were 93.85 acres in it. The tract of land is bounded on a stream. It would be difficult for one not skilled in such work to compute the acreage. It was in March, 1912, that he did the work. The primary purpose of his work was to give Huekley his acreage;

had Pennington’s blueprint when he made his survey. The field notes and meanders were on the blueprint. Witness began his survey— “at the southwest corner of the Lomax in the Wm. Hardin league. Then I ran east and checked.the distance there as Pennington had given them and put mine with it, running from the southwest corner of the Lomax in the Wm. Hardin, running east 3,195 feet. That brings me to the southeast corner of the J. O. Farrell 100 acres. Then I .ran from the southeast corner of the Huekley north 5,739 feet, and that holds out with Mr. Pennington’s line. You see there was a mistake made, and when I added to the west of the Huekley tract 44.6 feet which would make the exact 100 acres. It was in that way that I arrived at the correct acreage, and that is all I did. I took Mr. Pennington’s. map and ran those lines as I have stated; I didn’t do anything further. I accepted the meanders as Pennington had run them, and they held out. I accepted those meanders on the entire north end of the whole three tracts. I didn’t test thé meanders Pennington had made on the ground; I tested them by figures, and, so far as I know, I don’t know whether he is correct or not, on the ground. As a surveyor, taking the Pennington map showing the turn of this Buffalo Bayou, I would say that it is impossible for any one to get the exact acreage in the Lomax tract without carefully meandering the bayou. You have to meander the oayou, certainly. * * * I did not run the Lomax tract on the ground myself; I came down here, you know, a short distance and chained that, just the south line is all. I did not measure any other line except the south line. This southwest earner was pointed out to me.”

The witness Peppercorn also said that be did not have the deeds with him when he made his survey, and said that:

“Here in this deed to Lomax it begins on the south bank of Buffalo Bayou at the northeast corner of the 76-acre tract, etc.; thence south with the Blike tract 1,574.5 feet to a stake; thence east 1,325 feet to a stake; thence north 6,007 feet to a stake on the bayou thence up the bayou by metes and bounds, giving an acreage of 157.3 acres, and it is, or should be, 184.65 acres. You see, if I take this here, the width of it there, and go over there leaving that, leaving the meanders out altogether it makes, then, about 175 acres. I can take my pencil and figure that for you if you give me the dimensions: I have here 1,325 feet in width and 5,875 feet on one side and 6,007 feet on the other side; that is 5,874.5 feet (he figures it). Then that would be from here over there, throwing the meanders out altogether, not figuring them, that would make it 178.8 acres. That is the simplest kind of calculation we have in land matters, the plainest and simplest. Any man that has the least idea of calculating land acreage could do that. Knowing the distance, the width and the length of a piece of land, it is the simplest and easiest calculation'in land matters.”

An agreement is in the record to the effect that Nichols, if present, would testify that at the time he purchased the Lomax tract the transaction was had upon the basis of a per acre sale, the consideration being arrived at by figuring the acreage found by Pennington to be 157.3 acres, and that when he (Nichols) sold to Frazer, the transaction- was on a per acre sale, the acreage basis being 157.3 acres, and that he believed in each transaction the tract contained only 157.3 acres of land.

We think it sufficiently appears that all of the parties in the several sales of the Lomax tract, at the time of the execution of the deed by appellant to Lomax, and at the time of the execution of the deed from' Lomax to Nichols, and at the time of the execution of the deed from Nichols to Frazer, understood and believed and that the sales were based upon the belief of vendors and vendees that the tract contained 157.3 acres of land, and that such belief continued to prevail until the complaint of Huekley that he had not received in the conveyance to him the quantity of land called for in his deed. This complaint caused the resurvey and platting by the surveyor, Peppercorn, when and by whom it was reported that there was an excess in-the Lomax tract of 27.35 acres. The question of fact presented here is: Did the evidence require the submission of the case, including the issue as to the exact quantity of land in the Lomax deed? The court withdrew the case from the jury, and by so doing determined either that appellant, ought not to recover for any excess, as a matter of law, or that the evidence was not sufficient to submit to the jury the issue of fact of any excess in the acreage conveyed.

The appellee, Frazer, claims directly under one and remotely under two deeds, all of which contain the same description by metes and bounds. .The deeds give the lengths of the various lines of the tract and give each meander of the stream bounding the tract: Appellee holds title under these deeds to all of the lands embraced within the calls and distances given in the deeds. The office of a description in a deed or other writing is not to identify, but to furnish means of identification. Holley v. Curry, 58 W. Va. 70, 51 S. E. 135, 112 Am. St. Rep. 944, and cases there cited. The lines of a grant must be established by the calls in its field notes. Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931. There is no suggestion in the pleading or proof of a mistake in the calls for course and distance in the deeds, and they must stand as made. The calls and distances given in the deeds, .as does the testimony of the witness Peppercorn, show that a greater acreage than 157.3 is embraced therein. The exact acreage included within' the calls of the deeds is only a matter of calculation; the distances being given in each of the deeds.

Peppercorn made the calculation and stated the acreage to be 184.65 acres of land conveyed by the deed. This was sufficient to show prima facie that appellant had conveyed and that appellee Frazer held title under the deeds to 184.65 acres of land, whatever might be the actual acreage on the ground. -If the deeds did not convey a tract of land of the dimensions and the boundaries of which were of the courses and distances stated therein, such would be a matter of defense. But we are of the opinion that the deeds with their calls and distances, until rebutted, would be sufficient, of themselves, to show the conveyance of a tract of land with boundaries of the courses and distances as stated therein. The survey made by Pennington was not attacked by the evidence, other than to show the incorrectness of his estimate as to the acreage. If the deeds are effective to convey the title, it seems to us that their calls for courses and distances would be sufficient prima facie to show the acreage conveyed. The excess in the acreage is sufficient to be material, and such that a court of equity will correct if made by mutual mistake.

The burden is on the appellant to show the fact that there is such excess in the acreage conveyed in the Lomax deed that a court of equity would correct it if made by mutual mistake. The discovery of the mistake, if there was a mistake as to the acreage, under the pleading and proof, was at such time as to prevent the bar of the statute of limitations, if the grantor could not sooner have discovered the mistake by the exercise of proper diligence. At any rate, the facts are such as to require that the issue be submitted to the jury. Oldham v. Medearis et al., 90 Tex. 506, 89 S. W. 919; Isaacks v. Wright, 50 Tex. Civ. App. 312, 110 S. W. 970.

The question of law remains; As between the parties to this suit, conceding a mutual mistake as between appellant and Lomax as to the acreage in the deeds, and, for the purpose of the question, conceding that the evidence was sufficient to-show the excess in quantity claimed by appellant, can the mistake be now corrected as between appellant and appellee, a remote vendee? It is evident that none of the parties in any of the sales knew the acreage, and that all accepted as a correct estimate the statement made by Pennington. The rule in this state has long been that, whenever the excess is palpable and unreasonable and such is shown not to have been in contemplation of the parties, relief will be granted. Smith v. Fly, 24 Tex. 349, 76 Am. Dec. 109; O’Connell v. Duke, 29 Tex. 312, 94 Am. Dec. 282; Lancaster v. Richardson, 13 Tex. Civ. App. 682, 35 S. W. 749; Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700; Wuest et al. v. Moehrig et al., 24 Tex. Civ. App. 124; 57 S. W. 864; Daughtrey v. Knolle, 44 Tex. 450. That proposition is not contested where the relief sought is confined to the original parties to the transaction in which the mutual mistake occurred, but the proposition is contested when the principle is sought to be extended to a remote vendee. In all cases of mistake in written instruments courts of equity will interfere and grant relief as between the original parties, or those claiming under them in privity, with notice of the facts. Blumberg v. Mauer, 37 Tex. 7; Story’s Equity Jurisprudence, § 162; Adams v. Baker, 24 Nev. 162, 51 Pac. 252, reported in 77 Am. St. Rep. 799.

In this case the deed from Lomax to Nichols and the deed from Nichols to Frazer-gives the same description of the tract of: land conveyed as does the deed from appellant to Lomax. The evidence is that in each transaction the vendor and vendee thought that the tract contained 157.3 acres of land,, as estimated by Pennington, and that the-transactions of sale were consummated with that understanding and on that basis. We see no good reason why appellant cannot have her relief against appellee if the mistake as to the quantity of the land conveyed was likewise mutual as to subsequent vendees, and, if, as claimed, the purchase was by the acre,, and" not in gross, and the warranties in the-conveyances are as to the title, and not to-quantity. The vendees get all the land they bargain for and pay for. If the rule did not extend to a remote vendee simply because he was not a party to the original transaction in which the mutual mistake originated, the result would be that the original grantor would part with property not embraced in his contract, and the vendee would acquire property not purchased or paid for. In such case the courts would recognize a contract never contemplated nor made by any party.

We are of the opinion that the court was-in error in withdrawing the case from the-jury.

The case is reversed and remanded.
      «SatcFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. WURZBACH.
    (No. 5740.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1916.)
    1. Railroads &wkey;>108 — Construction and-Maintenance — Statute.
    Rev. St. 1911, art. 6495, requiring railroads to be constructed with the necessary culverts and sluices as the natural lay of the land requires for the necessary drainage thereof, imposes an absolute duty upon railroad companies, and the exercise of ordinary care would be no defense to a suit to enforce compliance with the act by a railroad company governed thereby.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 333-336; Dec. Dig. &wkey;108.]
    2. Statutes &wkey;>263 — Construction — Retroactive Effect.
    Retroactive laws being regarded with disfavor, even when not absolutely forbidden, statutes should not be given a construction that will affect existing rights, create new obligations, and impose new duties as to past transactions, unless it is plain that the Legislature so intended.
    [Ed. Note. — For other cases, see Statutes,. Cent. Dig. §§ 344, 349; Dee. Dig. &wkey;263.]
    3. Railroads <&wkey;108 — Construction and Maintenance — Statute—Retroactive, Effect — Intention of Legislature.
    Rev. St. 1911, art. 6495, providing that in, no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof, is a proviso of Act Aug. 15, 1876 (Acts 15th Leg. c. 97) § 23, subd. 5, entitled “An act to provide for the incorporation of associations that may he organized for the purpose of constructing railways, maintaining and operating the same, for prescribing and defining the duties and limiting the powers of such corporations when so organized.” Section 23 of said act also provides and the provisions and privileges of the ten subdivisions of this section shall extend to and apply as well to railroad companies heretofore chartered by special acts of the Legislature as to those chartered under this act. Meld, that said provision was not intended to be retroactive, and did not impose a liability upon a railroad which had constructed its roadbed before the passage of the act.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 333-336; Dec. Dig. &wkey;108J
    4. RailROads <&wkey;108 — Construction and Maintenance — Statute—Retroactive Operation-Constitutional Provision.
    Const, art. 1, § 16, prohibiting the making of any retroactive law, protects every right, even though not strictly a right to property, which may accrue under existing laws prior to the passage of any act which if permitted a retroactive effect would take away the right, so that defendant railroad, who had constructed its roadbed at the time of the passage of Rev. St. 1911, art. 6495 (making the duty to construct certain sluices for necessary drainage absolute), was entitled to demand proof of its negligence in the exercise of ordinary care in the construction of its roadbed before it could be held for damages.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 333-336; Dec. Dig. &wkey;108.)
    5. Pleading <&wkey;382(l) — General Denial — Proof.
    Where plaintiff alleged that defendant railroad was governed by Rev. St. 1911, art. 6495, passed in 1876, the duty devolved upon him to show that fact, so that defendant under general denial could prove that it had built its roadbed prior to 1876, and had acquired rights which the statute could not and did not weaken or destroy.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1280-1291, 1293; Dec. Dig. &wkey; 382(1).]
    Error from District Court, Guadalupe County; M. Kennon, Judge.
    Suit by H. M. Wurzbach against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Dibrell & Mosheim, of Seguin, for plaintiff in error. H. M. Wurzbach, of Seguin, for defendant in error.
   FLY, C. J.

This is a suit for damages to land, instituted by defendant in error, herein styled plaintiff, under the provisions of article 6495, Revised Statutes of Texas, which requires railroads to be constructed with the necessary culverts and sluices as the natural lay of the land requires for the necessary drainage thereof, which provisions plaintiff •alleged had been disregarded by plaintiff in error, herein styled defendant, and plaintiff’s .land greatly damaged thereby. The cause was submitted on special issues, and upon the answers of the jury thereto, judgment was rendered in favor of plaintiff for $250. ■

Article 6495 was enacted in 1876, and the jury found that the road was constructed 41 years ago — that is, in 1875. It has been held, and is the settled law of Texas, that the statute makes it the absolute duty of railroad companies to construct and maintain the necessary culverts and sluices to drain the land according to the natural lay thereof. The exercise of ordinary care would be no defense to such a suit. Clark v. Dyer, 81 Tex. 343, 16 S. W. 1061; Railway v. Glover, 84 S. W. 604; Railway v. Hadnot, 67 Tex. 503, 4 S. W. 138.

The court instructed the jury as follows:

“You are further charged that in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof, and that failure to so construct a roadbed shall constitute negligence on the part of any railroad company.”

The court refused a special issue requested by defendant as follows:

“Do you find that defendant’s roadbed, at the place complained of, was improperly or negligently constructed on account of a lack of necessary culverts or sluices, and that the natural flow of surface water was diverted on account of such improper or negligent construction?”

The case was tried under the theory that article 6495, which was enacted in '1876, would govern as to railroads constructed before the law was enacted.

Retroactive laws are looked on with disfavor, even when not absolutely forbidden by the state Constitution, and statutes should not be given a construction that will affect existing rights, create new obligations, and impose new duties as to past transactions, unless it is plain that the Legislature so intended. Sutherland, Stat. Cons. c. 18. Article 6495 of the Revised Statutes is a proviso in the fifth subdivision of section 23 of an act passed on August 15, 1876, entitled:

“An act to provide for the incorporation of associations that may be organized for the purpose of constructing railways, maintaining and operating the same, for prescribing and defining the duties and limiting the powers of such corporations when so- organized.” Acts l5th Leg. c. 97.

It is clear that nothing retroactive was intended, but that the act was passed in regard to associations that might be organized in the future. That seems apparent from the caption, and then in section 23, after providing for examinations and surveys, the taking and holding of grants of land, the purchase of rights of way and land for stations, the width of the roads and clearing of rights of way, for construction along streams, streets, roads, canals, etc., it is provided:

“That in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof.”

The whole object of the law was to make provisions as to the construction of railroads

after its enactment. If the Legislature had intended that the law should apply to railroads already constructed, we must presume that it would have provided that existing companies should rebuild their roadbeds so as to conform to the provisions of the statute. This court will not read into the law language inconsistent with the terms of the whole act, especially when it would render the law obnoxious to article 1, § 16, of the state Oonstitution, which prohibits the mating of any retroactive law.

The Oonstitution, through the article and section cited, protects every right, even though not strictly a right to property, which may accrue under existing laws prior to the passage of any act which, if permitted a retroactive effect, would take away the right. Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249; David v. Timon, 183 S. W. 88. At the time of the passage of the act defendant had constructed its roadbed, and its liability for any faulty or negligent construction thereof was fixed by the common law under which it acted. Its right to demand proof of its negligence in the construction of its roadbed before it could be held for damages was fixed and secure. The Legislature could not take away that right, and did not evince any intent or desire to interfere with it in any manner.

That the right that had accrued to defendant when it constructed its road was not in any manner impaired by the passage of the statute, and that it is a substantial right, we think, is sustained by the authorities coming under our consideration. In the case of Wild v. Railway, 171 Mass. 245, 50 N. E. 533, it was held that a statute relative to fires set by locomotives did not apply to fires occurring before the act took effect. In the case of Railway v. Hedges, 63 Ohio St. 339, 58 N. E. 804, the court held that a law which provided that, if an employs of any corporation received any injury by reason of any defect in any car or locomotive, It should be prima facie evidence of the negligence of the corporation, did not apply to any injury received prior to the enactment of the law, in the absence of an express provision to that effect. There are many cases to the same effect, some of which are collated in notes to section 646, Sutherland, Stat. Cons.

In the latter part of section 23 of the act of 1876 (Gammel’s Laws of Texas, pp. 147 and 148) it is provided:

“And the provisions and privileges of the ten subdivisions of this section shall extend to and apply as well to railway companies heretofore chartered by special acts of the Legislature as to those chartered under this act.”

It is contended that the clause quoted brings defendant within the purview of the statute, but, keeping in view the rule that the construction should be placed upon a statute that would not render it retroactive and void we are of opinion that the clause in question does not refer to railroads already constructed, but to those specially chartered which had not constructed their roads. We are sustained in this construction by the fact that most of the ten subdivisions referred to apply to the construction and operation of new roads, and not to those already established.

There is no merit in the contention that the duty devolved on defendant to allege that it had built its road prior to the enactment of the law. Plaintiff alleged that defendant was governed by the law of 1876, and the duty devolved on him to show that fact. Defendant, under a general denial, could prove that it had built its roadbed prior to the enactment of the law of 1876, and had acquiied rights which that law could not and did not weaken or destroy.

It follows that the court erred in giving the charge herein copied and in refusing to present the issue, as requested by defendant, as to the negligence of defendant in the construction of its roadbed.

The judgment is reversed, and the cause remanded.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ÉsoFor other oases see same topic and KEY-NUMBEK in all Key-Numbered pigests and Indexes


author: MOUR.SUND, J,

text:
    WESTERN UNION TELEGRAPH CO. v. FABIAN.
    (No. 5702.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1916.
    On Rehearing, Nov. 15, 1916.
    Further Rehearing Denied Dec. 13, 1916.)
    On Rehearing.
    1. Trial <&wkey;2'51(2) — Instructions—Conformity to Pleadings.
    I Where plaintiff alleged negligent failure to deliver a death message to him'at the address given, and that he was at such address, and the evidence showed he was 2% miles distant from' the town named, an instruction permitting recovery though the message could not have been delivered at the address, on the theory that the sender told the agent plaintiff might be at the other place, was erroneous, as on an issue not made by the pleadings. ‘

    [Ed. Note. — For other cases, see Trial, Cent. Dig § 589; Dec. Dig. &wkey;251(2).]
    2. Telegraphs and Telephones <&wkey;37(6) — Failure to Deliver Message — Liability.
    / Where the addressee of a death message, in his action for negligent failure to deliver it, alleged a contract only to deliver at a named town, but failed to allege a contract to deliver by phone to a residence where addressee stayed, it was immaterial that there was a phone connection from such town to such residence, y)
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. &wkey;37(6).]
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Action by Will Fabian again the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed. On petition for rehearing, rehearing granted, former opinion set aside, and judgment reversed, and cause remanded for new trial.

      John M. King and Geo. A. Hill, Jr., both of Houston, Geo. D. Neal, of Navasota, and O. A. Goetli, of San Antonio, for appellant. W. W. Smith and W. E. Neeley, both of Anderson, and Haynes Shannon, of Navasota, for appellee.
   MOUR.SUND, J,

This is an action brought in the district court of Grimes county by Will Fabian against the Western Union Telegraph Company to recover damages in the sum of $2,000 for failure of the defendant to deliver a certain telegram addressed to the plaintiff at Cottonwood, Tex. The plaintiff alleged that his father died suddenly June 20, 1913, and that at 4:30 p. m. June 20th a telegram was delivered at Anderson, Tex., for transmission to Cottonwood, advising him of the death of his father, and that he was at the -town of Cottonwood, and if the message had been promptly transmitted he would have received the same in time either to have arrived at Anderson in time for his father’s funeral on June 21st, or else could have notified his relatives to have the funeral postponed until his arrival. It is alleged that the telegram was never delivered by defendant, and the damages sued for are alleged to have resulted from plaintiff’s inability to have attended his father’s funeral.

Following its demurrers, exceptions, and denials, defendant specially pleaded that it received the message for transmission at 5:10 p. m. June 20th at Anderson, and that it had no telegraph office at Cottonwood, but only telephone communication with its nearest telegraph station at Cross Plains;, that defendant had to relay the message via four stations in order to communicate with Cross Plains, and then had the message phoned from Cross Plains to Cottonwood; that the Cross Plains offiee was open only from 6 a. m. until 6 p. m.; that defendant promptly transmitted the message and attempted to deliver the same at Cottonwood, but that the plaintiff was never at Cottonwood at any time subsequent to the delivery of such message to defendant at Anderson for transmission; that delivery of such message was impossible; and that plaintiff’s absence from the town of Cottonwood was the proximate causé of defendant’s failure and inability to deliver the message to him and the proximate cause of his failure and inability to be present and attend the funeral of his father.

The trial resulted in a verdict and judgment in favor of plaintiff for $1,000.

By the first two assignments it is contended that no issue of negligence should have been submitted to the jury, and that a peremptory instruction should have been given in favor of defendant. The third assignment complains of the failure to give a special charge which contains an issue covered fully by the main charge of the court, and unnecessary to be repeated. As a part of the assignment appellant urges certain contentions, which could relate only to the assignments wherein it is contended that there was no issue to submit to the jury. This assignment is grouped, improperly, we think, with the first two assignments.

The only proposition relied on under the three assignments is to the effect that, if the facts be as contended by appellant, the negligent delay in transmitting the message could not have been the proximate cause of plaintiff’s damages, and the failure of plaintiff to be at the place where defendant contracted to deliver the message would be the sole, proximate cause. The evidence bearing on this issue is as follows: The message was delivered to the defendant’s agent at Anderson, Tex., by Norris Fabian at 4:30 p. m. on June 20, 1913. When he delivered the message he told defendant’s figent at Anderson that plaintiff’s father-in-law had died at Cottonwood, at Mr. Steve Gafford’s, and that plaintiff had' gone there to attend the funeral. Plaintiff arrived at Cottonwood át about 8 a. m. on June 20th. Cottonwood is a small town, described by the plaintiff as a very small place having “two, three, or four stores.” Plaintiff testified that he left these stores at about 4 o’clock in the afternoon on June 20th, and went to the house of his brother-in-law, Gafford, “a little piece from town, about three-quarters of a mile.” He testified that he remained at his brother-in-law’s house until the next morning about 4 or 5 o’clock, and then went to Cross Plains, arriving there at about 7 a. m. He took the train 'there at 8 a. m. for De Leon, Tex. Mrs. Gafford testified that plaintiff was at her house on June 20th from about 2:30 p. m. until about sundown; that plaintiff and Mr. and Mrs. Gafford then went to Walter Childress’ house and remained overnight; that early the next morning plaintiff and Childress left for Cross Plains. Defendant’s nearest telegraph office was at Cross Plains, a town situated about seven miles from Cottonwood. The messages for Cottonwood were transmitted by telephone from Cross Plains or some other telegraph station. ’ Gaf-ford had a telephone connected with the telephone exchange at Cottonwood. At about 7:30 or 8 o’clock in the morning on June 21st a call was received by the Cottonwood Telephone Exchange from the telegraph operator at Cross Plains for plaintiff in care of Gaf-ford’s. The operator informed Mrs. Gafford that it was a death message. Mrs. Gafford stated that plaintiff had gone to Cross Plains to take the train for De Leon, and requested that the message be delivered to him at Cross Plains or De Leon. Plaintiff had already taken the train,- so the message was not delivered to him at Cross Plains, nor was it ever delivered to him.

We are of the opinion that the evidence ■warrants a finding that the negligence of the telegraph company in failing to promptly transmit the message was the proximate cause, of the damages suffered by plaintiff. Had tile message reached Cottonwood at any time prior to sundown on June 20th, it would undoubtedly have been communicated promptly to plaintiff. The defendant company had been informed that he would be at Gafford’s; in fact, it tried to get him at Gafford’s on the morning of June 21st. The message had to be telephoned to Cottonwood, as defendant knew, and Gafford had a telephone connected with the Cottonwood exchange.

The first three assignments are overruled.

The fourth assignment of error reads as follows:

“The court erred in granting and giving special charge No. 1 requested by plaintiff, which charge reads as follows: ‘Gentlemen of the jury, you are further charged that, although you believe from the evidence that the telegram and message described in plaintiff’s petition was directed to Cottonwood, Tex., still, if you believe from the evidence that the sender of the message actually told the agent of the defendant at Anderson, Tex., where Will Pabian could be found near Cottonwood, Tex., and in obedience to such instructions the agent of the defendant gave the name and address of the party near Cottonwood, Tex., then, if the name of the party was given where Will Fabian could be found, the defendant would not be relieved from the duty of delivering said message to Will Fabian at Cottonwood, but would be required to attempt to deliver the message to Will Fabian at the actual address given’ — in this: The issue submitted to the jury in said charge is not supported by the evidence or any allegation in plaintiff’s petition, as shown by defendant’s bill of exception No. 2, to said charge.”

The following proposition is submitted under this assignment:

“Where the cause of action alleged was failure to perform a contract to transmit and deliver a telegram to plaintiff at a specified town, it is error to submit the issue to the jury as a basis for recovery of the failure of the defendant to deliver the telegram to the plaintiff elsewhere, and the telegraph company is under no obligation to make delivery at any place other than as contracted.”

The charge states an incorrect proposition of law as applied to the pleadings in the case, for no contract was pleaded to the effect that defendant bound itself, to deliver the message to Will Fabian at Gaf-ford’s. Plaintiff pleaded that defendant company agreed to transmit and deliver the message to him at Cottonwood; that in order to do so it would be necessary to telephone the message from Cross Plains to Cottonwood. Had defendant complied with this agreement with due diligence, and informed the telephone operator at Cottonwood that plaintiff was supposed to be at Gafford’s the message would undoubtedly have reached him on the afternoon of June 20th. Cottonwood had no established defined'limits, and in general parlance a man living three-quarters of a mile from the stores and post office, and having telephone connection with the local exchange, would undoubtedly be said to live at Cottonwood. Western Union Tel. Co. v. Wilson, 152 S. W. 1169.

The effect of the special charge on the jury could have1 been no more than- to inform them that, if plaintiff could have been reached at Gafford’s, the defendant should have done so. The court had virtually given the same instruction in his general charge, because he assumed that plaintiff left Cottonwood on the evening of June 20th. The evidence is undisputed that he left the stores in the afternoon, one witness stating the time at 2:30 o’clock, while plaintiff testified it was at 4 o’clock. If the court had meant this departure, he would not have submitted any issue as to liability, for the undisputed evidence showed that the telegram had not been received by the defendant company at that time. He must have meant the time when plaintiff left Gafford’s, namely, about sundown. As the legal effect of the two charges as applied to the undisputed evidence was the same, and the special charge could not have been prejudicial on the issue whether the message by due diligence could have been transmitted to Cottonwood before plaintiff left Gafford’s, we conclude the judgment should not be reversed on account of the giving of the special charge.

The judgment is affirmed.

On Rehearing.

In holding that the error pointed out in the fourth assignment of error was immaterial, we assumed that the evidence showed Gafford’s residence to be about three-quarters of a mile from the stores and post office. In this we erred, for there is a conflict in the testimony. Mrs. Gafford testified that their residence was about 2% miles southwest of Cottonwood. This testimony, if believed by the jury, would establish that Will Fabian on June 20, 1913, was not at Cottonwood after about 4 or 5 o’clock p. m. At one place in his testimony we found the statement that he left Cottonwood that evening and went out a little piece from town, he supposed “somewhere about 4 or 5 o’clock.” At another place he fixes the time at about 4 o’clock. Again he testified it was “somewhere late in the afternoon, about 4 o’clock.” If the telegram could not have been delivered to him at Cottonwood, appellant is not liable under the pleadings. The special charge authorized the jury to find for plaintiff if it could have been delivered near Cottonwood, that is, at Gafford’s, even though it was 2 y2 miles from Cottonwood. This was submitting to the jury an issue not made by the pleadings, and undoubtedly was error under the decisions cited in the former opinion. The verdict was probably returned under this charge, for Mrs. Gafford’s testimony as to the distance she resided from the stores and post office would be much more apt to be believéd than that of Will Fabian, the plaintiff,'who was a visitor to that section, and whose recollection with regard to other matters appears not to have been good. We stated in oúr former opinion that the trial court must' have assumed that Gafford’s place was at Cottonwood. We based tbis upon the fact that he assumed that plaintiff left Cottonwood on the evening of June 20, 1913. We based our theory upon the fact that plaintiff testified he left there at 4 o’clock, which, if true, would conclusively show that the telegram could not have been delivered to him at Cottonwood before his departure. We find, as above shown, that plaintiff’s testimony on this point left it uncertain whether he left at 4 or 5 o’clock. He described the time once as in the “evening” about 4 or 5 o’clock, and again as being late in the afternoon at about 4 o’clock. The court may have concluded that from this testimony the jury could find that the message could have reached Cottonwood and been delivered prior to such departure. It was delivered to appellant’s agent, as testified by Norris Fabian, between 4:20 and 4:30 on the afternoon of June 20th. The court said:

“If you believe that the message could not have been delivered to the plaintiff, Will Fabian, at Cottonwood before the said Will Fabian left Cottonwood on the evening of June 20,1913, and •by the exercise of ordinary care on the part of the defendant company, you should find for the defendant.”
Again the court said:
“If you believe from a preponderance of the evidence that the defendant company was guilty of negligence in not transmitting the message to Cross Plains in time for it to be sent from there to Cottonwood before the plaintiff had left Cottonwood, and believe that but for such negligence, if you find the company was negligent, the message could have been delivered to plaintiff at Cottonwood in time for Mm to have attended the funeral, then you will find for the plaintiff and assess his damages at such sum as in your sound judgment will compensate him for the mental distress that he suffered by reason of the failure to be present at the funeral of his father.”

While the court assumes that plaintiff left Cottonwood on the evening of June 20th, this expression in itself cannot be taken to mean the departure from Gafford’s at about sundown, testified to by Mrs. Gafford; for plaintiff himself in testifying used the expression that he left Cottonwood, meaning the stores and post office, in the evening. In addition it was a disputed issue whether plaintiff left Gafford’s at all that afternoon or night, and the court would not undertake to assume as a fact that he did leave at sundown. The court undoubtedly sought in his main charge to leave it to the jury whether the message could have been delivered to plaintiff at 'Cottonwood on June 20th. Under this charge the jury could weigh all the evidence, and, if they found that Gafford resided at Cottonwood, could have found for plaintiff if the message could have been delivered to him there on June 20th. If they decided that Gafford did not live at Cottonwood, and that the message could not have been delivered before plaintiff left the stores, it was their duty under this charge to return a verdict for defendant.

We are also of the opinion that, no contract having been alleged to telephone the message from Cottonwood to Gafford’s, it was immaterial whether or not Gafford was connected by telephone with the exchange at Cottonwood. Telegraph Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40; Stewart v. Tel. Co., 158 S. W. 1034. We conclude thht we were in error in holding the special charge harmless, and that the fourth assignment of error should be sustained.

In view of the fact that the above conclusions render unnecessary the intimation in our former opinion that as a matter of law a man living three-quarters of a mile from the stores and post office would be said to live in the town, the same is withdrawn. This would generally be a question for the jury.

The motion for rehearing is granted, the former judgment of this court set aside, and judgment entered reversing the judgment of the trial court and remanding the cause for another trial.
      i&Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SANFORD v. WELLER.
    (No. 5711.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1916.
    Rehearing Denied Dec. 13, 1916.)
    Attorney and Client <&wkey;149 — Contract for Employment.
    An attorney’s agreement with the owner of a ranch in Mexico to sue to recover cattle, or the value thereof, whieh the agreement recited had been converted by a Mexican general, the agreement assigning to the attorney a “one-fourth interest in what may be recovered by suit or compromise,” the rancher not to be responsible for the attorney’s services if the latter should not succeed in recovering anything of value, did not entitle the attorney to compensation, when he failed to recover anything, nor was he entitled to one-fourth interest in the cattle on the ranch not converted, on the theory that since he had been induced to start suit and change his position by the representation that all the cattle on the ranch had been converted, the rancher was estopped to deny such representation, since the attorney knew at the time of the agreement that his client had fled from Mexico, and did not personally know that the cattle had been converted.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 351-357; Dec. Dig. &wkey;> 149.]
    Appeal from District Court, Maverick County; W. C. Jackson, Special Judge.
    Action by J. R. Sanford against R. H. Web ler. From judgment for defendant, plaintiff appeals.
    Affirmed.
    Geo. M. Thurmond, of Del Rio, and R. D. Wright, of Eagle Pass, for appellant. Ball & Seeligson and Chas. W. Trueheart, all of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

J. R. Sanford sued R. H. Weller, alleging that a few days prior to April 27, 1914, Weller solicited Sanford’s services as an attorney at law to represent him in a certain cause of action which he had against Alberto Guajardo, who, Weller represented, had entered upon a ranch owned by Weller in Mexico, and had, during the month •of April, 1914, taken possession of and converted to his own use live stock belonging to Weller of the value of $267,500. This live stock was described in the petition. Plaintiff, Sanford, further alleged that defendant, Weller, requested plaintiff to file suit against Guajardo and have a writ of garnishment issued and served on the First National Bank of Eagle Pass, and represented that he had reason to believe Guajardo had money on deposit in said bank, and that Guajardo was a nonresident; that on April 27, 1914, plaintiff and defendant entered into the following written contract:

“The State of Texas, County of Maverick: This memorandum of agreement this day made and entered into between R. H. Weller, first party, and J. R. Sanford, second party, both residents of Maverick county, Texas, witnessetk:
“First. First party has employed second party as his lawyer to represent party in a prosecution of a certain suit which he has against Alberto Guajardo, who is the same person as L, A. Guajardo, a resident of the republic of Mexico, for the value of certain cattle belonging to first party, and which were converted by the said Guajardo during the month of April, 1914. Cattle being of the following description: 3,200 head of stock cattle branded Z X on left hip, with ear marks crop off each ear, thus (mark), of the value of one hundred sixty thousand ($160,000.00) dollars, fifty head of thoroughbred cattle branded D on left hip, with no ear marks, of the value of $7,500.00; 1,400 head of three and four year old steers branded Z X. on left hip of the value of $70,000.00; 150 head of horses and 150 head of mules branded ZX on left thigh and some branded V on right jaw; 300 being of the value of $30,000 and which stock at the time of the conversion were bleated at the Las Rucias ranch in the District of Monclova, state of Coahuila, United States of Mexico, which ranch is situated about fourteen miles north of the town of Musquiz.
‘‘Second. The second party accepts the_ employment and agrees to prosecute the suit in the district court of Maverick county, Texas, and appellate courts, and if necessary to further prosecute claims in other courts of the state or the United States, or through the United States government at Washington.
“Third. This employment also covers any and all other claims which the first party may have against any .one or against the Mexican government, or against any party or parties who may be responsible for the loss, damage or conversion of any of his property which he may now have or which may arise in the future during the unsettled conditions existing in Mexico.
“Fourth. And in consideration of the services performed and to be performed by the second party, the first party assigns, transfers and conveys unto the second party a one-fourth interest in what may be recovered by the first party either by suit or compromise, either in money or other things of value.
“Fifth. The court costs shall be paid equally by the first and second parties, that is the first party shall .pay one-half and the second party shall pay one-half thereof.
“Sixth. The first party shall make all bonds , which may be necessary during the prosecution of any of the claims.
“Seventh. In the event the said party of the second part does not succeed in recovering anything of value, then the first party will not be responsible to him for his services.
“Eighth. Neither party shall compromise any of the claims without a consultation is first had and an agreement is arrived at satisfactory between the first and second parties 'hereto. ■
“Witness our hands this the 27th day of April, A. D. 1914.
“R. H. Weller,
“Party of the First Part.
“J. R. Sanford,
“Party of the Second Part.”

Plaintiff further alleged that in pursuance of the terms of said contract he filed suit against Guajardo for $267,500 and procured a writ of garnishment; that at the time the contract was entered into it was a fact that Guajardo, through his agents and em-ployés, was in possession of said live stock in defiance of any right or claim of defendant, and defendant had been ousted from his ranch, and had taken refuge in the United States; that, regardless of whether any one had converted this live stock, Weller represented to plaintiff that Guajardo’s agents and employés had taken possession of the live stock and ousted Weller from his ranch, and plaintiff believed such to be the case, and if it was untrue plaintiff did not know it was untrue, but, “relying upon the facts as a basis for the contract, and that contracting with reference .to the facts as being true, and having the same recited in the contract, plaintiff was led to contract upon the basis of said facts, and that he performed the services and expended money and so changed his position, and consequently defendant is estopped from denying that such a state of facts existed”; “that defendant says the representations herein alleged and those recited in the contract, and with reference to which the parties contracted, were not true, and plaintiff says that if they were not true, then defendant is guilty of a fraud committed in Maverick county; that if the representations were true, then plaintiff says that at the time the representations were made, and at the time the contract was formed, the defendant had no intention of performing the same, but used his obligations therein made as false pretenses and tricks t<j induce plaintiff to undertake the employment, and to file the suit and garnishee the said bank, believing that he (defendant) would not be further molested in Mexico after the suit was filed, and that his cattle would be released, and that defendant had no intention of continuing the prosecution of the suit, or of producing evidence in Maverick county, to sustain his case, and this, his purpose in inducing plaintiff to enter into the contract to spend his money and perform same, was to intrap and defraud plaintiff by holding before him those false promises of defendant recited in the contract, and which defendant intended at the time to disregard, all of which fraud was committed in Maverick county, Tex.;” that after the filing of suit and service of writ of garnishment, defendant succeeded in regaining possession of said live stoek, with the exception of about 63 head of cattle worth $3,150 and horses and ‘mules worth $30,000; that plaintiff diligently represented defendant, and sought to recover the stock or collect its value, and in all tilings complied with his contract; that in April, 1915, defendant breached said contract, in that he undertook to sell and convey all of. the live stock of which he had recovered possession, and plaintiff,, upon receiving notice from defendant of such undertaking, objected to defendant selling and conveying the one-fourth interest in said stock claimed by plaintiff under the contract; that defendant then repudiated plaintiff’s claim, and failed and refused to deliver to plaintiff his interest in the cattle or pay the value thereof, but converted the same to his own use and benefit; that the reasonable value of plaintiff’s interest in the 4,000 head of stock recovered was $58,500 and the reasonable value of the care thereof was not more than $1 per head. Plaintiff prayed for judgment for one-fourth interest in the stock, or its value, less the value of the care thereof.

Defendant filed a plea of privilege to be sued in Bexar county, and, subject thereto, answered by special exceptions, a general denial of allegations, not specially admitted, and a special answer, wherein he admitted the execution of the contract sued upon, but alleged that if it was susceptible of the construction placed thereon by plaintiff, then it was not defendant’s contract or binding on him, because it was so executed by mutual mistake, or a mistake on the part of defendant and a fraud on the part of plaintiff, in that it purports to cover all cattle and horses owned by defendant in Mexico; that he went to plaintiff for the purpose of securing advice with reference to his property in Mexico, and informed plaintiff that he had been reliably informed that an army, or large body of men, under the control and direction of Alberto Guajardo, who was purporting to act as brigadier general, was rapidly approaching defendant’s ranch, and defendant had also been informed that said army expected to capture and probaoly kill defendant, and to seize, carry off, and destroy all of his live stock, and defendant had left the ranch several days prior to his consultation with plaintiff, and presumed and supposed that seizure and conversions had already then been made, or were being made, of his property; that he also informed plaintiff that Guajardo, or his men, had, prior to the above-mentioned invasion, seized and taken away many of defendant’s cattle, horses, and mules; that he consulted plaintiff as to what course to pursue for the recovery of his property, and plaintiff advised that a suit be brought against Guajardo, and garnishment sued out, informing plaintiff that Guajardo had a large amount of money on deposit in the First National Bank of Eagle Pass; that he also advised the execution of, and wrote, the contract described in plaintiff’s petition; that he had full faith and confidence in the ability and integrity of plaintiff, and executed said contract believing and understanding that it only covered and included, and that both parties intended that plaintiff should only have, a one-fourth interest in such property as may have been actually converted by Guajardo and which, or its value, might be recovered by and through the efforts of plaintiff, and did not contemplate or intend that plaintiff should have any interest in property that had not been taken or converted by Guajardo; that after the making of the contract plaintiff só construed the same, and if the contract bears the construction and is to the effect as contended by plaintiff, in his pleading, it was so drawn by mutual mistake, or if plaintiff understood and intended it to be to the effect now pleaded by him, then he procured the same, and induced and led defendant to execute and deliver the same, through a mistake of defendant, and through fraud perpetrated by plaintiff upon defendant. Defendant further alleged that even if the contract be held binding to the effect claimed by plaintiff, the latter could not recover because under the terms of the contract, and especially the fourth paragraph thereof, plaintiff was only to receive one-fourth interest in what might be recovered by the first party, either by suit or compromise, and defendant has received nothing by suit or compromise. Defendant admitted that plaintiff filed suit and sued out a writ of garnishment as alleged by him, and alleged that on about May 5, 1915, plaintiff notified defendant that he would not further represent defendant in said suit, and returned to defendant the papers relating to the matter; that shortly after said suit was filed he advised plaintiff that Guajardo and his men had not taken all of his property, as he supposed would be done “and as was in contemplation when said contract was executed,” but had taken “78 horses, three big mules, and 63 fine cows”; that he did contract the sale of his horses, cattle, and mules to J. M. Dobie in April, 1915, and did not recognize any claim of interest therein on the part of plaintiff, because said stock had not, at any time, been “taken, carried away, or converted” by Guajardo, his army or men, or any one under his direction or dominion, and therefore could not, by any possible construction have been received or recovered, either by suit, compromise, or otherwise in contemplation of and under the terms of said contract.

The cause was submitted upon special issues, the first of which was not answered. The issues and answers are as follows:

(1) Was it the intention of both the plaintiff and 'defendant when they entered into the contract sued on that plaintiff should have for his services a one-fourth- interest in all the live stock described'in said contract? Answer: -.
(2) Did the defendant, R. H. Weller, intend and understand, at the time of the execution of the contract in question, to assign to the plaintiff in only a one-fourth interest in. the cattle, if any, that had been converted by Gua-jardo?- Answer:--The defendant Weller did iri-tend and understand, at the time of the execution of the contract in question, to assign to the plaintiff only a one-fourth interest in the cattle that had been converted by Guajardo.
(3) If in answer to the second special issue submitted, you find that the defendant, Weller, understood and intended, at the time of the execution of this contract, to assign to the plaintiff only a one-fourth interest in the cattle, if any, that had been converted by Guajardo, then you will answer the following questions: At the time of the execution of the contract, did the plaintiff, Sanford, know that the defendant, Weller, understood and intended to assign, only a one-fourth interest in the cattle, if any, that had been converted by Guajardo, and with this knowledge, if any, did the plaintiff, Sanford, permit defendant, Weller, to execute the contract without the plaintiff, Sanford, informing the defendant, Weller, that such was not the effect of the contract? Answer: The plaintiff, Sanford, did know that the defendant, Weller, understood and intended by the execution of the contract to assign only a one-fourth interest in the cattle, if any, that had been converted by Guajardo.
(4) What portion or part of defendant’s property described in said contract did Alberto Guajardo convert, if any? You will set out and describe in answer to this question the stock you find, if any, so converted, by kind and numbers. By “conversion” as applicable to this charge is meant any distinct act or dominion wrongfully exerted over another’s property in denial of his right or inconsistent with it. Answer: 63 head of cattle, 150 horses, 150 mules.
(5) You will find and state in your answer the value of all the cattle remaining on the Weller ranch in old Mexico after Alberto Gua-jardo’s men departed from and left said ranch, and that were thereafter in the possession of the defendant, Weller, which are described in said contract, less the reasonable expense of earing for them for 12 months. Answer: $123,-849.00.”

Judgment was entered in favor of defendant, and plaintiff appealed.

No exceptions were urged by either party to any of the issues answered by the jury. We may therefore take it for granted that there is evidence to support each finding, unless the fact that a motion for peremptory instruction was made prior to the giving of the general charge, dispenses with the necessity of objecting to the issues submitted, and is equivalent to an objection to the sufficiency of the evidence to justify the submission of each special issue. It has been held that such is not the law. Essex v. Mitchell, 183 S. W. 399. Be this as it may, we have examined the testimony, and conclude that each of the findings sought to be attacked by appellant is sustained by the evidence.

We will discuss the questions of law without considering each assignment of error separately.

The parties apparently agree that the contract in question falls within the class of assignments considered and discussed by the Supreme Court in the ease of Railway v. Ginther, 96 Tex. 295, 72 S. W. 166; that it is an assignment of an interest in a cause of action of which a judgment or compromise was to be the measure. They disagree, however, upon what fund would come within the terms of the assignment evidenced by the contract sued on, Sanford contending that the words, “a one-fourth interest in what may be recovered by the first party, either by suit or compromise, either in money or other thing of value,” would include all property which had been converted, and of which defendant regained possession by suit or compromise, or in any other manner, while Weller contends that the words should be given a literal meaning, and the assignment would relate only to money or property recovered by suit or compromise. It appears to us that it is unnecessary to decide this point in view of the finding of the jury that the stock in which Sanford claims an interest, in this suit was never converted. We think the point thus raised cannot be determinative of the controversy in this case, for, conceding Sanford’s construction to be correct, he has failed to prove that the live stock in which he asserts an interest was ever converted by any one. The jury found, and its finding is amply sustained by the testimony, that there was no conversion of this live stock. Neither Sanford nor Weller recovered the same from Guajardo or any one else. Sanford pleaded that such live stock had been converted by Guajardo, and “that Weller succeeded in regaining possession of and recovering said live stock.” He failed to prove these allegations, and, having made no case under this count of his petition, it is immaterial whether or not he is correct in contending that he was to have a one-fourth interest in all converted property recovered in any manner by Weller, instead of only such as was recovered by suit or compromise.

Sanford contends, however, that even if the live stock in which he seeks to establish an interest was not converted, nevertheless he is entitled to recover a one-fourth interest therein or its value. This claim is not founded upon the theory that the contract directly vests in him a one-fourth interest in all live stock described therein in consideration of the services to be performed by him, and no such theory could be urged with any degree of plausibility, for the clause, fixing the compensation too plainly and unequivocally, stamps the contract as one assigning an interest in a cause of action of which a judgment or compromise is to be the measure, and not one transferring an interest in live stock. His claim is based on the theory that, as the contract contains the statement that all of Weller’s live stock has been converted by Guajardo, such statement became the basis for the contract, and that Weller is estopped to deny its correctness. Having arrived at this conclusion, he contends that, as Weller has possession of about $237,000 worth of the live stock described in the contract, he (Sanford) is entitled to recover a one-fourth interest therein. The pleading' relating to this contention charges Weller with fraudulent misrepresentation of the extent of the conversion, and it is claimed that Sanford altered Ms position to Ms detriment on account of such misrepresentations. No issue with respect to tMs matter was requested to be submitted to the jury, and the evidence fails to substantiate the allegations with reference to fraud. In fact it appears that Sanford knew Weller had left his ranch before the depredations by Guajardo’s men took place, and had no personal knowledge of the extent thereof, and some doubt existed in Sanford’s mind, for he expressed doubt whether Weller could prove the conversion, and Weller named the parties from whom he had heard that it had taken place.

It is also clear that the facts relating to the extent of the conversion were deemed important because of the necessity of making ■specific allegations in the petition and making oath in order to procure a writ of garnishment, but there is nothing to indicate that Weller was given to understand that any statement he might make as to the extent -of his claim would be important in fixing the rights of plaintiff under the contract. There is no evidence to the effect that plaintiff would not have accepted the employment had he known the real facts. There being no imposition in fact practiced upon Sanford, kis contention is that, regardless of fraud or imposition, Weller signed a contract, stating that all of his property had been converted, and is estopped to deny such statement. He invokes general rules relating to estoppel ■announced in text-books, but cites no case wherein such rules have been applied in a case based on facts similar to those in this ■case. We do not think the rules relied on are applicable. Estoppel must be predicated upon a state of facts showing that it would operate as a fraud upon'a party if the other is permitted to deny certain statements. The doctrine of estoppel should never be carried so far as to make a contract never intended or contemplated by the parties — to create greater rights, in fact, a far more favorable ■contract than if in fact all of defendant’s property had been converted. Such would be the peculiar result if plaintiff is permitted to recover from defendant one-fourth of the stock not converted, when he was unable to recover from Guajardo the $30,000 for stock actually taken, and there is nothing to indicate that it would have profited him aught had defendant really possessed a claim for $267,000. It would make a contract which Weller would undoubtedly not have knowingly entered into, and one which Sanford apparently did not intend or contemplate, for although Weller reported to him, soon after the suit was filed in April, 1914, that only $30,000 worth of live stock had been taken by Guajardo, no claim was asserted by him to the remaining $237,600 worth of stock until April, 1915, although he had many opportunities to make such claim to Weller. We think the rules of law to be applied in determining the effect of misdescrib-ing the cause of action are to be found by investigation of the authorities relating to assignments of choses in action. “In the absence of an express warranty, the assignor of a chose in action, for a valuable consideration, impliedly warrants to the assignee that the chose assigned is a valid, subsisting obligation in his favor against the debtor to the extent to which it purports to be such.” Corpus Juris, vol. 5, p. 968, Ruling Case Law, vol. 2, p. 627; Elliott on Contracts, vol. 2, § 1456; Miners’ Bank v. Burress, 164 Mo. App. 690, 147 S. W. 1110; Scott v. Hix, 2 Sneed. 192, 62 Am. Dec. note, p. 467; Boyd v. Anderson, 1 Overt. 438, 3 Am. Dec. 762; Trustees of Broadus Institute v. Siers, 68 W. Va. 125, 69 S. E. 468, Ann. Cas. 1912A, page 920; Galbreath v. Wallrich, 45 Colo. 537, 102 Pac. 1085. In the note to Scott v. Hix, supra, we find the following quotation:

“Says Mr. Justice Sharswood, in Flynn v. Allen, 57 Pa. 482: ‘The doctrine that the vendor of chattels in possession impliedly warrants the title extends to choses in action. Ritchie v. Summers, 3 Yeates (Pa.) 531; Charnley v. Dulles, 8 Watts & S. (Pa.) 361; Swanzey v. Parker, 50 Pa. 450 [88 Am. Dec. 549]. As in the sale of other things, he undertakes, not for their quality, that they are really worth the money they represent, but that they are what they purport to be; in other words, he warrants the genuineness of the claim upon them. Lyons v. Divelbis, 22 Pa. 185. Every obligee or holder of an obligation who assigns it to another, especially if he does so for a valuable consideration, impliedly, at least, thereby engages that it is genuine, and binding upon the obligor, unless he discloses fully and truly to the assignee in treating for the assignment all the facts and circumstances connected with the execution and delivery of the obligation, and, after being thus advised, the assignee agrees to take it at his own risk.’ ”
“The measure of the assignee’s damages for breach of warranty of title and validity of the choses assigned is, generally, the amount he paid the assignor for the chose, with interest, and costs reasonably incurred by him in an attempt to enforce the chose against the debtor.” Corpus Juris, vol. 5, p. 971, and authorities above cited.

Applyipg the rules so established, it appears that if there be any liability under the facts disclosed by this record on the part of Weller to plaintiff for stating in the contract that his claim was one for the conversion of all the live stock therein described, such liability would be for breach of implied warranty, and would entitle plaintiff to recover the expenses incurred in seeking to recover on the spurious claim and the reasonable value of his services in regard thereto. No such recovery is sought in this suit.

We conclude that appellant is not entitled to recover upon either theory urged by Mm, without reference to the findings of the jury on the issue of mistake.

It is too plain for argument that no clause of the contract purports, on its face, to vest in Sanford a one-fourth interest in live stock not converted, but if there was such a clause, it would conflict with paragraphs 4 and • 7 of the contract, and create an ambiguity which, under various rules of law, as well as the findings of the jury, would have to be solved in favor of Weller. Elliott on Contracts, §§ 1521, 1528, 1531, 1538, and 1564.

Let us, however, for the purpose of considering the effect of the second and third findings of the jury, consider the case from the standpoint that appellant is correct in his theory of estoppel and in his construction of the legal effect of the contract. If Sanford, in drawing the instrument, had expressed the intention of both parties, and that intention had been to vest in Sanford a one-fourth interest in all live stock described therein, but the making of the agreement was induced by the mistaken belief that Gaujardo had converted all of said live stock, and the agreement would not have been entered into by Weller but for such belief, he would have been compelled to rely upon the rules of law relating to mistakes of fact. Such an agreement was not made nor directly expressed in the instrument signed by the parties, but appellant contends that, by operation of the rules of law relating to estoppel, the same legal effect must be given to the instrument drawn by him and signed by the parties as if it had directly stated that Sanford was to own one-fourth of all the live stock, whether converted or not. There can be no doubt that in making their agreement both parties assumed that all of Weller’s live stock had been converted, and contemplated that Sanford might have to try to recover all of same or its value. There can also be no doubt that had they known the facts, they would only have contemplated that Sanford’s services would be required to try to recover the-stock actually taken, and in drawing the contract the stock converted would have been described, instead of all of the stock. But Weller’s plea of mistake goes further than that. He contends that, although it was assumed that all of his live stock had been converted, his intention was to assign to Sanford only one-fourth of his cause af action for such live stock as should prove to have been actually converted. He contends, further, that this intention of his was known to Sanford, and that the latter, who is chargeable with the selection of the words used in reducing the agreement to writing, did not inform him of the fact that, as drawn, the instrument did not express such intention; that is, he did not inform Weller of the legal effect of stating in the instrument that the cause of action against Guajardo was one for conversion of all the stock; that such statement, in spite of paragraphs 4 and 7, had the legal effect of transferring to Sanford a one-fourth interest in all of the cattle described therein not converted. The jury sustained these contentions made by Weller. We may take it as established, then, that if the instrument could be given the legal effect by estoppel to vest in Sanford a one-fourth interest in cattle not converted, it failed to express the legal import of the contract actually made, and that this failure resulted from a mistake as to the legal operation of stating that all of the live stock had been converted. This is the kind of mistake spoken of by Mr. Pomeroy in his work on Equity Jurisprudence (3d Ed.) § 845, in the-following language:

“If * * * after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express, the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing. Among the ordinary examples of such errors are those as to the legal effect of a description of the subject-matter, and as to the import of technical words and phrases; but the rule is not confined to these instances. 2 Pomeroy’s Eq. Jur. 3d Ed. sec. 845.

Eor annotations on this subject, see note to Dolvin v. Harrow Co., 28 L. R. A. (N. S.) p. 785.

This court being of the opinion that appellant is entirely wrong in his contention as to the construction of the contract, it follows, of course, that if appellant is correct, we cannot blame Weller for supposing that paragraphs 4 and 7 of the instrument were adequate to express his intention not to transfer any interest in live stock not converted. The jury found that Sanford knew what Weller intended to agree to, and if in performing the task of reducing the agreement to writing he did not know he was using language importing another agreement, the mistake would be a mutual one. If he knew or believed that the instrument drawn by him had a different legal effect, he failed, as found by the jury, to inform Weller of the true effect of the contract. The failure to-speak under such circumstances has often been held to constitute such inequitable conduct as will enable the other party to take advantage of a unilateral mistake. Pomeroy on Eq. Jurisprudence (3d Ed.) § 847; Simkins,. Equity, pp. 516, 517, and cases there cited.

In view of the findings of the jury and the-foregoing rules of law, it appears that if appellant’s contention, based on the theory off estoppel, be correct, nevertheless, the judgment must be affirmed, because equity will not permit the enforcement of any such construction of the contract.

All assignments of error are overruled,, and the judgment is affirmed.
      cgssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    T. W. MARSE & CO. v. FLOCKINGER et al.
    (No. 5690.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1916.)
    1. Chattel Mortgages <§=>229(1) — Sale oe Mortgaged Property — Parties Depend-ant.
    In suit by chattel mortgagee against a purchaser of the mortgaged property for conversion, the two mortgagors of the property were not necessary parties defendant, though proper parties.
    [Ed. Note. — -For other cases, see Chattel Mortgages, Cent. Dig. §§ 479, 480, 482, 483; Dec. Dig. &wkey;229(l).]
    2. Evidence &wkey;>177 — Secondary Evidence.
    The court did not err in admitting parol testimony to show the contents of a note which was shown not to be within the jurisdiction of the court.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 557, 570-579; Dec. Dig. &wkey;177.]
    3. Evidence <&wkey;177 — Secondary Evidence-Preclusion from Demanding Production of Note.
    Where the court found that a note was placed beyond its jurisdiction by the acts of defendants, they could not be heard to demand its production before resort to secondary evidence to prove its contents.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 557, 570-579; Dec. Dig. &wkey;177.]
    4. Appeal and Error <@=>1051(1) — Harmless Error — Evidence.
    In suit by chattel mortgagees against the purchaser of the mortgaged property, where a mortgage, introduced in evidence without objection, contained recitations substantially describing the note it secured, the admission of. parol testimony to show the contents of the note was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dec. Dig. <@=>1051(1).]
    5. Bills and Notes <&wkey;195 — Assignment of •Note — Title.
    Where a note was transferred by its holder by written assignment to chattel mortgagees to secure his note to them, the title to the note immediately vested in the chattel mortgagees, as well as the mortgage intended'to secure the note, and the right of the mortgagees could not be defeated by the holder’s subsequent acquisition and delivery of the note to the maker without the mortgagees’ consent.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 464, 474-47,6, 478-480, 488, 490; Dec. Dig. <&wkey;195.]
    6. Appeal and Error <&wkey;1010(l) — Review-Findings of Fact.
    Findings of fact by the trial court will not be reviewed where there is any evidence to support them, notwithstanding the court itself may reach a different conclusion from the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-8981; Dec. Dig. <@=> 1010(1).]
    7. Chattel Mortgages <&wkey;>229(l) — Purchase of Mortgaged Crop — Picking and Rent of Land.
    In suit, by chattel mortgagees for the conversion of the mortgaged crop of cotton against purchasers of the crop, the trial court properly allowed defendants’ claim for items for cotton picking and rent.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 479, 480, 482, 483; Dec. Dig. <@=>229(1).]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Suit by F. C. Flockinger and others against T. W. Marse & Company. From a judgment for plaintiffs, defendants appeal.
    Judgment affirmed.
    W. A. Barlow, of Taylor, for appellants. Melasky & Moody, of Taylor, for appellees.
   RICE, J.

In 1914 John T. Barber rented certain land from Miss Alice McFaddin near Taylor upon which he raised a crop of cotton, com, etc. On the 27th of July , of said year he sold 50 acres of this cotton, together with certain farming implements, to L. L. Poole, for the sum of $525, taking his note therefor, due October 1, 1914, with 10 per cent, interest and 10 per cent, attorney’s fees secured by a chattel mortgage upon said crop, which was thereafter, on July 30th, duly filed for record in Williamson county. On the next day Barber gave his note to appellees for the sum of $431.-55, payable October 1st, bearing interest and attorney’s fees. To secure this note Barber, by written transfer, assigned to appellees the Poole note then held by the City National Bank of Taylor as collateral for $50 which he (Barber) owed the bank, of which assignment both the Bank and Marse & Co.' were immediately advised. The next day, August 1, 1914, Barber gave his note to appellants for $195.80, as well as for any amount thereafter advanced by them to him, due October 1, 1914, bearing interest and calling for attorney’s fees. Appellants thereafter furnished him advances to the amount of $170, which included $50 advanced by them to him to pay his debt to the bank for which the Poole note was held by the bank as collateral, aggregating in all $366.40. This note was secured by mortgage on the same crop of cotton, which mortgage was likewise forthwith recorded in Wiilliamson county; but before the execution of said last note and mortgage Poole ánd Barber rescinded their trade, and Barber, without the knowledge or consent of appellees, regained possession of the Poole note upon payment to the bank of the $50, and delivered same to Poole, who removed from Williamson county about the last of December, 1914. Thereafter Marse & Co. took possession of said cotton, amounting to 5,790 pounds of lint, of the value of $401, by virtue of a trade with Barber, and after paying to Miss McFaddin the rent, $101.45, and paying for the picking, $126.-18, and the $50 which they advanced to Barber to pay the City National Bank, applied the balance, $125, as a credit.op Barber’s indebtedness to them; and this suit was brought by appellees against appellants for conversion of said cotton, based upon the facts above set out.

.Appellants answered by general demurrer, several special exceptions, a general denial, and specially defended on the ground that they were entitled to said cotton by reason of the execution and delivery to them by Barber of 'the note and mortgage above referred to, upon which they had advanced to him and paid on his account the several amounts above set out, and further defended on the ground that the Poole note claimed hy appellees as collateral security for their note against Barber never in fact came irito their possession, whereby they had never acquired any lien on said cotton.

The case was tried before the court without a jury, and resulted in a judgment against appellants in favor of appellees for the sum of $125.18, from which appellants prosecute this appeal.

Appellants excepted to appellees’ petition on the ground that neither Poole nor Barber were made parties defendant to this suit, asserting that, in a suit by a mortgagee against a purchaser of the mortgaged property, the mortgagor is a necessary party, unless a judgment for the alleged debt and foreclosure of the mortgage had been previously obtained. Neither of them were made parties to this suit. We think this exception was properly overruled, because, as we understand the law, it was not necessary that either of said parties should be made parties defendant. While they are proper parties, they are not necessary parties. See 38 Cyc. 2053; article 5660, R. S.; Liberal Loan & Realty Co. v. Meyers, 186 S. W. 433; Fouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435; Focke v. Blum, 82 Tex. 436, 17 S. W. 770; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715; Ward v. Gibbs, 10 Tex. Civ. App. 287, 30 S. W. 1125; Rector v. Mill Co., 103 S. W. 710; Oswald v. Giles, 178 S. W. 677.

We do not think that the court erred in admitting parol testimony to show the contents of the Poole note: (1) Because it appears that the same was not within the jurisdiction of the court, and therefore secondary evidence was admissible to prove ’its contents. Barber testified that he had never seen anything of such note since the day he returned it to Poole, and Poole was shown to be a citizen of Lynn county at the time of the trial. See 17 Cyc. 531; article 3649, R. S.; Smith v. Traders’ Bank, 82 Tex. 368, 17 S. W. 779; Sayles v. Bradley Co., 92 Tex. 406, 49 S. W. 209; M., K. & T. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88; Missouri Pacific v. Gernan Co., 84 Tex. 141, 19 S. W. 461; Greenleaf on Evid. p. 84, par. 558; Coons v. Renick, 11 Tex. 134, 60 Am. Dec. 230; Western Union v. Smith, 26 S. W. 217; Gulf Ry. Co. v. Harris, 72 S. W. 71. (2) As the court found that the note was placed beyond its jurisdiction by the acts of appellants, we think they ought not to be heard to demand its production before secondary evidence could be resorted to to prove its contents. See 17 Cyc. 529; Cheatham v. Riddle, 8 Tex. 162; Gulf Ry. Co. v. Harris, supra. Even if we are mistaken as to this, we think the error, if any, is harmless, for the reason that the Poole mortgage, which was introduced in evidence without objection, contained recitations substantially describing the Poole note, which it was intended to secure.

Appellants insist that, since the evidence shows that the Poole note never came into possession of appellees, they never acquired any right thereto. This contention, we think, is not well taken, because it clearly appears from the evidence that the Poole note was transferred by Barber by written assignment, to appellees for the purpose of securing his note to them, for which reason we hold that the title to same immediately vested in appellees, as well as. the mortgage intended to secure it, and their right thereto could not be defeated by Barber’s subsequent acquisition and delivery of same to Poole without their consent.

Appellants present several assignments complaining of findings of fact on the part of the court, which it is not necessary to discuss seriatim, because it is sufficient to say that such findings will not be reviewed where there is any evidence to support them, notwithstanding the court itself may reach a different conclusion from the evidence. We haye examined each of these findings, and hold that there is sufficient evidence to support them; hence we overrule these assignments. See Corrigan v. Goss, 160 S. W. 652; Sanders v. Rawlings, 77 S. W. 44; Thigpen v. Russell, 55 Tex. Civ. App. 211, 118 S. W. 1080; Morrow v. Gonoway, 157 S. W. 430; Nunn v. Padgitt Bros., 161 S. W. 921.

We think the action of the court in allowing appellants credit for the items of cotton picking and rent was just and proper. We therefore overrule appellees’ cross-assignments challenging the correctness of the judgment on this account.

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

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