author: PHILLIPS, C. J.

text:
    ERIKSEN v. McWHORTER.
    (No. 2512.)
    (Supreme Court of Texas.
    May 2, 1917.)
    1. Public Lands <S^173(6) — School Lands— Substituted Purchasers — Necessity — Settlement.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5436, stating the requisites of possession by a substituted purchaser of school lands, where the necessary three years’ residence was uncompleted when a substituted purchaser acquired the land, it was necessary that he become an actual and bona fide settler thereon, and that he continue to be such until completion of the three-year period.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 547, 548.]
    2. Public Lands @=ol73(6) — School Lands— Sub stituted Purchasers — Necessity—Settlement — “Actual Settlement.”
    The words “actual settlement” in such section do not require the purchaser’s continuous and unbroken personal presence upon the land, but merely mean that the settlement must be by the purchaser, and not his agent or proxy, and that it must be actual, and not constructiva or virtual.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 547, 548.
    Eor other definitions, see Words and Phrases, Second Series, Actual Settlement.]
    S. Public Lands <⅜=3173(6) — Settlement on Public Land.
    Plaintiff purchased school lands from a purchaser from the state before the expiration of the three years’ occupancy by the latter. Plaintiff’s wife immediately went on the land, made her home thereon, but plaintiff did not personally go thereon for over two months and was not there continuously after that time. Held, that the court cannot say as a matter of law that there was not a sufficient settlement by the plaintiff within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5436, requiring substituted purchaser to file the conveyance or transfer together with an affidavit that he desires to purchase the land for a home and has in good faith settled thereon, and the finding of the jury is conclusive.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 547, 548.]
    Error to Court of Civil Appeals, Eighth Supreme Judicial District.
    Trespass to try title .by Ed Eriksen against S. D. McWhorter. To review judgment (151 5. W. 624), plaintiff brings error.
    Reversed.
    A. S. Plawkins, of Phoenix, Ariz., for plaintiff in error. Jno. B. Howard, of Pecos, and 6. B. Smedley, of Austin, for defendant in error.
   PHILLIPS, C. J.

The question presented by the case is that of the validity of the settlement by Eriksen, the plaintiff in error, upon certain school land of which he was the substitute purchaser from the State. This is the third appeal of the case. Judgments adverse to Eriksen have been twice reversed by the Court of Civil Appeals for the Second District. 62 Tex. Civ. App. 295, 132 S. W. 847; Id., 143 S. W. 245. Upon the third trial, before a jury, he prevailed. On the appeal judgment was rendered against him by the Court of Civil Appeals for the Eighth District.

Eriksen purchased the land in March, 1908, trading in his former home in another county, worth about $3,000.00, and giving, as the balance of the purchase price, some money and about $3,000.00 in notes. In October, 1908, his purchase was forfeited by the Commissioner of the General Land Office “for failure to reside on the land as required by law.” The land was afterwards awarded by the Commissioner to McWhorter.

The necessary three years residence upon the land had not been completed when Eriksen ficquired it. In purchasing the land, it was necessary, therefore, that he become an actual and bona fide settler upon it, and that he continue to be such a settler for the time necessary to constitute the three year period. Article 5436, Revised Statutes, 1911. The requirement of the law does not mean that the purchaser’s continuous and unbroken personal presence upon the land is necessary. Bustin v. Robison, 102 Tex. 526, 119 S. W. 1140. But it does^nean that the settlement must be by the purchaser himself, and not by an agent or proxy; that it must be actual, and not constructive or virtual. Hardman v. Crawford, 95 Tex. 193, 66 S. W. 206. It means what the term, “actual settlement,” itself best expresses, such personal use of the land, in the first place, as plainly evidences the purchaser’s establishment there, in good faith, of his place of permanent abode, and such personal occupancy thereafter as clearly preserves its character as the place of such abode.

Eriksen was a married man and the head of a family at the time of his purchase of the land. His family consisted of his wife, several children, all grown, apparently, except one boy, about seventeen years of age, and a'young nephew. He was a blacksmith in the town of Midland. He had no home. He had not previously acquired any land from.the State. 1-Iis investment in the land represented, as he testified, all that he had. The evidence leaves no doubt that he purchased the land for the purpose of making a home upon it. He did not, himself, immediately go upon the land, nor until possibly two months after its purchase. However, he had his wife immediately settle upon it. The young nephew went with her. She carried household effects for living purposes and materials for the improvement of the land, all furnished by Eriksen., With the assistance of the nephew and a hired man she at once began the building of a house, which she personally helped to erect, the construction of fences, the digging of a tank, etc. The minor son was upon the land some of the time and assisted in a part of this work. Mrs. Eriksen occupied the land as the home of herself and husband from the time of its purchase to the date of the forfeiture, with occasional trips into Midland for provisions and supplies. Her longest absence from it was a two months stay in Midland, beginning the latter part of August, after she had occupied and worked upon the land since .March. This absence, according to her testimony, was for some necessary purpose. Eriksen paid all the expenses incurred in the improvement of the place, maintaining his wife and the others of the family on the place. He remained in Midland, working at his trade for the purpose, as was testified, of earning the money with which to pay for the improvement of the place and provide sustenance for his wife and those with her there. About two months after the purchase he went out to the land, and remained about two weeks. During this time he worked upon it, building fences, hauling water, etc. He was there at subsequent times, two, or possibly, three times, all told, remaining two or three weeks each time, and while there worked about the place, assisting in its improvement. According to his testimony he regarded the land as his home, and had no other home.

It cannot be held as a matter of law, under these circumstances, that Eriksen was not an actual bona fide settler upon the land. The evidence gives us no impression of subterfuge on his part, or an attempt to hold the land without his own actual settlement. It reflects, we think, an honest effort to establish a home there for himself and family. His investment of his former home in the land is one evidence 0⅛ this. His situating his wife upon the land is another. There could be no better proof of such intention than the fact that by a common understanding she went there and. attempted through improvement, though crude 'and primitive, to give it the semblance and character of a home. Her occupancy is not to be disregarded, or treated as, at best, a mere constructive occupancy by Eriksen. It is rather to be viewed as a proper means of effecting his own settlement. It was not only indicative of a purpose to establish upon the land his place of abode, but was of itself proof that he had there established it. Placing her upon the land and providing a house for her occupancy.were in themselves acts of settlement performed by Eriksen. It is the wife who, primarily, gives a home its character. One of the best evidences of the establishment of the husband’s home at a particular placfe is his making it the place of her habitation. Under the circumstances of the case, it is difficult to disassociate the settlement of Mrs. Eriksen from that of Erik-sen himself. As held in Willingham v. Eloyd, 32 Tex. Oiv. App. 161, 73 S. W. 831, it may be considered as a settlement by both of them. Eriksen occupied the land at different intervals, working about the place, and giving evidence that he regarded it as his home. His occupancy was not continuous, nor of prolonged duration; but his continuous presence upon the land was not necessary to its remaining the place of his residence. In the state of the proof, the question was one of fact. It was concluded by the finding of the jury.

The judgment of the Court of Civil Appeals is reversed and that of the District Court is affirmed.

HAWKINS, J., being disqualified, did not sit in this case.
      @=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KFY-NTJMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PKENDEBGAST, J.

license: Public Domain

text:
    POPE v. STATE.
    (No. 4401.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.
    Rehearing Denied May 2, 1917.)
    1. Criminal Law ⅞⅝=511(2, 3) — Witnesses— Corroboration — Accomplices.
    Under Code Cr. Proe. 1911, art. 801, providing that a conviction cannot be had on testimony of an accomplice unless corroborated, an accomplice witness can be corroborated by either circumstantial or positive testimony, and when the accomplice’s testimony shows the guilt, corroboration is sufficient if it tends to connect the accused with the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1129, 1130.]
    2. Criminal Law <⅝^511(2) — Witnesses — CORROBOEATION — ACCOMPLICES — SUFFICIENCY.
    In prosecution for cattle theft, testimony of accomplice held sufficiently corroborative to warrant conviction.
    [Ed.. Note. — For other cases, see Criminal Law, Cent. Dig. § 1129.]
    3. Criminal Law <⅞=^510½ — Evidence—Accomplice.
    In a prosecution for cattle theft, an accomplice witness could testify when he had first told anybody about the theft, though his statements at the time could not be shown for the purpose of corroborating his testimony at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1127-1136.]
    4. Criminal Law <§=510½ — Evidence—Accomplice.
    Where an accomplice witness was impeached by proof of conviction of theft involving moral turpitude, he could state that shortly after the crime charged he told another of the transaction in substantially the words used in testifying on the trial.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1127-1136.]
    5. Criminal Law ⅞^>510½ — Evidence—Accomplice.
    An accomplice witness could say whether he participated in the crime willfully or whether he was coerced into aiding therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1127-1136.]
    6. Larceny <S=o43 — Evidence — Admissibility.
    In a prosecution for cattle theft, it was not error to permit a witness to testify that he had heard the names of persons who recognized the' cattle at the place to which they were driven.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 130, 133.]
    7. Witnesses <s^>361(2) — Impeachment—Evidence — Admissibility.
    Where an accomplice witness was impeached for former theft, it was permissible for him to explain the circumstances of his alleged conviction for theft.
    [Ed. Note — For other cases, see Witnesses, Cent. Dig. § 1168.]
    8. Witnesses <s=^359— Impeachment — Evidence-Admissibility.
    It is not error to exclude a judgment of conviction for theft as impeaching a witness where such judgment was for a fine of $10, since Pen. Code 1911, art. 1341, provides that both imprisonment and fine shall be imposed or imprisonment without fine, so that the judgment was illegal.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1161, 1162.]
    9. Indictment and Information <®=>191(5)— Included Offense — Cattle Theft.
    In prosecution for cattle theft, the accused could not be convicted of willfully driving cattle from their accustomed range.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 612.]

      10. Criminal Law ⅞=>814(6) — Instructions —Conformity with Evidence.
    In prosecution for cattle theft, where the evidence raised no issue as to the intent with which the cattle were driven away, an instruction permitting acquittal if accused did not intend to deprive the owner of the cattle permanently should not have been given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Jim Pope was convicted of cattle theft, and he appeals.
    Affirmed.
    B. H. Jones, of De Kalb, and Mahaffey, Keeney & Dalby, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PKENDEBGAST, J.

Appellant was convicted of cattle theft, and his punishment assessed at three years in. the penitentiary.

The state had Otto Bussell, who was a guilty participant in the crime, to testify as one of its main witnesses. He had a family who resided in said county a few miles from Bed river. He stayed most of his time for months previous to the alleged theft at an old abandoned ferry named Bee Tree ferry. While he did work in ditching and draining near said old ferry, a part of his business at least was bootlegging — unlawfully selling intoxicating liquor.

Bussell testified that on Saturday evening, September 9, 1916, about the middle of the evening, appellant came to where he was at said ferry and talked with him about the liquor business and proposed a partnership with him in that business. He was corroborated in this by another witness, Mr. Burkham. He swore that on this occasion appellant made an engagement with him to meet him at a certain place some five or six miles distant late that evening to arrange a partnership with him. From the state’s standpoint appellant made this engagement with him so as to get him away from said old ferry so that he and his two associates, Brawley and Fisher, in the theft, as he claimed, could steal and drive the cattle across Bed river into Oklahoma at said old ferry without his knowing anything about it.

Bussell also swore that late that evening he started out to meet said engagement with appellant, and that some distance on his way, not very far, he came upon appellant and his said two confederates. .They were together in a pasture or pen on the river in the bottom, where they had from 10 to 15 head of cattle penned; that appellant then told him that he had to assist them in putting said cattle across the river about night; that he would give him $10 to keep his mouth shut, and if he did not they would put him at the bottom of the river with a plow beam and wire around him; that he was thus forced by them to assist them in putting the cattle across the river; that when he found these parties together on this occasion they were eating some canned goods. He fixed the location of where they were at this time just inside of the fence where they had the cattle penned. He was corroborated by witnesses as to the eating of the canned goods at the said location, who testified that they found at this location the cans, which showed to have been freshly opened and the, contents eaten.

Bussell further testified that they inquired of him where they could get something more to eat. He informed them that there was a negro by the name of Brown who lived not far distant from where they were then who would supply them with supper if they would apply to him. He was corroborated in this by appellant himself, who swore that he thereupon went to the negro Brown’s, ordered the supper, and that Brown about sundown brought supper to them where they had eaten the canned goods, and that they ate that supper there. The state sought to introduce Brown as a witness, but it turned out that he was an ex-convict, and while he claimed to have had a pardon, he could not find it, and thereupon on appellant’s objection Brown’s testimony was excluded.

Bussell further swore that after they had eaten supper they made him and Brown assist them in driving the cattle into the river at said old ferry requiring him and Brown to station themselves in the chute made into the bank of the river for the drive down it to the water made for said old ferry; - that the bank of this chute on one side was very steep, from 10 to 15 feet high, so that the cattle could not go up it; that appellant and his two confederates then drove the cattle along the bank of the river from where they had them penned on a bench down to this old ferry chute; that all the parties provided themselves with good large sticks with which they beat and forced the cattle into the river. The cattle were very much averse to taking the river. Several other witnesses corroborated Bussell in that they found at and about this old ferry the said sticks and that they had hair on them. In addition, he was corroborated by several others, wherein they testified that they found the tracks of these cattle where they had been so penned and where they were driven therefrom down to this ferry and forced into the river. Bussell also swore that when they were thus handling the cattle he rec-ognised certain of them, especially some three head, which he described and told to whom they belonged, the three at least to different persons named by him.

The state introduced another witness, who testified that late said evening he was passing along this river bottom and along near night heard persons holloaing, which he took tó be persons handling rough stock cattle, and which he took to be people driving cat-tie of some kind; that some 20 or 30 minutes later lie saw appellant apparently coming from towards where he had heard said holloaing, and that he saw appellant ride up to some man in a field, apparently having some conversation with him, and then leaving going back. Evidently this was the negro Brown, whom appellant himself swore he saw about this time and ordered supper for the crowd from him.

By different witnesses, and by even appellant himself, it was proven that appellant and his said two confederates, Brawley and Fisher, were at Russell’s and near about there late during said evening, and appellant himself swore that he was with them at the location fixed by Russell where they ate the supper he ordered and Brown brought to them. He claimed, however, that they were there drinking and playing cards, and he denied any and everything about the cattle.

The state proved by another disinterested witness that he saw appellant with Fisher and Brawley at a certain gin late Friday evening, and that when Brawley and Fisher rode up appellant went out to where they were, leaned up on the horse of one of them, and had a private conversation with them for some time; that he again saw these three parties, it seems, at a store about said gin, the next morning. Appellant himself swore that these parties were at his house some time Saturday, the day of the theft. This evidently was Saturday evening before they rounded up and penned said cattle.

Russell further swore that he and Brown remained with Rope, Brawley, and Fisher nearly all night at the place where they had eaten, and that they all were drinking and carousing that night after they had put the cattle into the river; that the appellant got pretty drunk and slept part of the time; some of the others may also have slept some; that, after they had put the cattle into the river and some of them crossed,,it was arranged between Pope, Brawley, and Fisher that Brawley and Fisher would cross the river next day into Oklahoma, where some of the cattle had landed, get and take them to a certain town in Oklahoma or another in Arkansas or to both said towns, and dispose of them. It was unquestionably shown that Brawley and Fisher lived in Oklahoma.

Russell further swore that appellant next morning, Sunday, before day, got up and went to his home, some six or seven miles in Bowie county distant from the river. He was corroborated in this by appellant himself, who swore that he did get up at the time and went to his home. He was also corroborated in this by some other disinterested witnesses, who swore that they saw appellant as he was going to his home on this occasion and that he was riding very fast and that he must have reached his home before or about sunup.

Russell also swore that the next day, Sunday, he saw across the river on the Oklahoma side from said ferry the said three head of cattle which he had recognized and identified the night before when they were putting the cattle into the river. He was corroborated in this by the testimony of other disinterested witnesses, one of whom testified that he saw and he thought he recognized these three head from whore he was at said old ferry to where these cattle were across the river on the Oklahoma side. Another witness testified that he and two others saw these cattle on this occasion and went across the river to the Oklahoma side, and there saw and' thoroughly identified them and drove these cattle back across the river to the Texas side; that when they were crossing the river they saw Brawley and Fisher and some one or two other persons near where these three head of cattle were; that at first they were on the ground oft of their horses, but when he approached nearer Brawley and Fisher got on their horses and hastily rode away; that after getting some distance from where the. cattle were they stopped, and when they saw them drive these three head back across the river they came back to where this witness was, and as he was crossing in a skiff! going back to the Texas side they got in the same skiff and also went back to the Texas side; that he had no conversation with them, and they said nothing to him. They were evidently watching to see what they could find out or whether or not they and appellant had been detected in the theft. They were evidently near these cattle at the time they were discovered on the Oklahoma side for the purpose and with the intent of driving them away to one or the other of said towns in Oklahoma or Arkansas and disposing of them.

The other testimony in addition to Russell’s without doubt showed that the said three head of cattle wore thoroughly identified as the property of three separate and distinct owners who lived on the Texas side, and that was where they were raised and ranged, on or near the river. The one head alleged as stolen from Mr. Vineyard was shown to have been one of the three head forced to cross the river to the Oklahoma side by appellant and his confederates Saturday about night, and that it was taken from the owner without his knowledge or consent, etc.

There were other items of testimony by said Russell wherein he was corroborated by others, all tending to show appellant’s proximity and connection with Brawley and Fisher in the taking and stealing of said cattle.

The court told the jury that said Russell was an accomplice and that he had to be corroborated as required by our statute. The statute (article SOI, C. O. P.) prescribes that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect tbe defendant with the offense committed. It is well established that an accomplice witness can be corroborated by either circumstantial or positive testimony or both, and that when the testimony of the accomplice shows the guilt of an accused the corroboration is sufficient if it tends to connect the accused with the offense committed (1 Branch’s Ann. P. O. § 710, where a large number of cases are cited), and that the corroborating testimony need not be sufficient to establish the guilt of the defendant, for, if this was the case, the testimony of an accomplice would be of no value (1 Branch’s Ann. P. C. § 710,. where he coilates a large number of decisions). The testimony of the accomplice Russell in this case clearly was sufficient to show appellant’s guilt, and he was amply corroborated so as to show appellant’s guilty connection with the theft.

After the state’s direct examination of said Russell and after he had testified fully as to appellant, Brawley, and Fisher taking and handling and putting said cattle across the river, he was asked by the district attorney, “When did you first tell any one about this?” to which question appellant objected because his answer would be hearsay and it was an effort to bolster up the testimony of this witness. The bill shows that appellant was not present at the time. The court overruled his objection and permitted the witness to testify: “It was on Thursday afterwards that I told it. I told it to Mr. B. H. Williams at that time because they had talked to me, and I knew they knew it.” This question and answer was proper and legitimate on two grounds: (1) That he had first told about this transaction on Thursday following was a fact. Neither the question nor answer comes within the well-established rule which forbids the state to bolster up a witness by proving by him or any other that on a certain occasion after the occurrence he told or swore to the same thing that he is testifying to on the trial. That rule does not apply either to said question or answer. The witness was not asked, and did not answer, whether or not he had told the same tale then that he then testified to, but was merely asked’the sole question of when he first told of the occurrence. (2) Even if it could be construed that the witness on the stand testified that he had on a previous occasion told the same tale as he now testified to for the purpose of corroborating his present testimony, it would have been admissible under the circumstances of this case. While it was premature on the direct examination by the state, it afterwards became admissible, because appellant attacked the witness as testifying falsely from a corrupt motive and as manufacturing his whole testimony, and sought to impeach him by proving that he had formerly been convicted of a misdemean- or, theft, involving moral turpitude. When this is the case, the witness can be corroborated by testifying himself or proving by another that oil a previous occasion shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony told on the trial. This is so well established that the authorities need not be cited, but see 1 Branch’s Ann. P. C. § 181, where a large number of cases are collated. So that, at most, if the question and answer could be construed to come within this rule, although it was premature, it was not reversible error on that account.

The law is as stated by Mr. Branch:

“On appeal the court will look at the real competency of the testimony adduced, and not to the order of its reception, and when found competent the judgment will not be reversed because of the time or order of its introduction.” Moore v. State, 7 Tex. App. 14; Cox v. State, 8 Tex. App. 297, 34 Am. Rep. 746 ; Hartsfield v. State, 29 S. W. 777; Knight v. State, 64 Tex. Or. R. 541, 144 S. W. 967.

Neither did the court err in permitting the state to ask said witness if he voluntarily went into this thing, that is, participated in driving the cattle with defendant and others into and across the river, nor in his. answer thereto:

“Well, I do'not know that I went into this cattle theft voluntarily. When I came up on them they told me what they wanted me to do, and I did not feel like I wanted to resist. I was afraid of them.”

A witness is entitled to explain any fact tending to create a distrust of his integrity or truthfulness and to testify to what might have a tendency to show that he was less-to blame in the commission of the crime-than if he had himself originated it and its-commission. 1 Branch’s Ann. P. O. p. 60.

Appellant’s bill No. 3 complains that the district attorney asked the state’s witness-Williams:

“Did you find.the names of anybody over there who had seen anybody inquiring for cattle?”

To which he objected because it was hearsay, immaterial and prejudicial. The witness answered:

“Yes; the names of those people were Mr. Baldwin and his son and another man by the name of Jones. These parties live across the river in Oklahoma.”

The bill does not disclose how or in what way this matter was or could have been injurious to appellant. If it was immaterial, it in no way affected appellant injuriously, and is of such a matter as would not cause or justify a reversal.

I-Iis next bill complains that the district attorney stated to the court when his witness Joe Calvit was on the stand that he could prove by him that he had had cattle stolen from him in the same community where the theft in- this case had been committed and about the same time. Evidently this statement was by the district attorney to the court so as to inform the court what he was seeking to prove by the witness to which appellant was objecting. ' The bill does not show, and it seems as a matter of fact that the witness did not t'estify, to what the district attorney sought to elicit by this ■question.

On cross-examination said accomplice Russell, upon being asked by appellant, testified:

“Yes; I was charged with theft and pleaded guilty of stealing cross-ties from Mr. Brewer. That has been four or' five years ago. I would have rather paid a fine than be messed up in court. 1 gave the money to another man and asked him to pay it off. Yes; I was charged with stealing cross-ties.”

Thereupon, upon cross-examination on this point at the instance of the state, he testified, in substance, that while he was hauling ties for Mr. Clark he got some of Mr. Brewer’s ties through mistake, and that he did not really steal the ties; that he thought when he was paying the $25 fine he was really paying for the ties; that he was not put in jail nor arrested for it. The authorities are uniform and numerous to the effect that when a witness has been impeached as this one was by showing that he was convicted of a misdemeanor involving moral turpitude, he always has the night to show such explanatory circumstances in connection with the conviction inquired about'as would remove the implication of untruthfulness and serve to reinstate him as a truthful witness; in other words, while he can thus be impeached, he can explain the circumstances and show that, while he was really convicted or pleaded guilty, in fact he was not guilty; and that was all that was done in this instance.

So that the court did not err in excluding the judgment of conviction after-wards sought to be introduced by the appellant to the effect that he had pleaded guilty to the theft of said ties and was fined $10, the state objecting to the introduction of such judgment because it was not a legal judgment. The judgment shows that he was convicted and fined $10 and all costs for the theft of said ties. The law prescribes that in a conviction for petty theft both imprisonment in the jail and fine shall be imposed, or such imprisonment without fine shall be imposed. Article 1341, P. O. The action of the court in excluding said judgment under such circumstances presents no reversible error.

Appellant filed several objections to the court’s charge, all in one paper. No separate bill was taken to any particular charge ■of the court. The court’s charge in connection even with the objections thereto made in the manner stated have been considered, and none of them show any reversible error.

His special charge with peremptory instructions to acquit should not have been given. Neither should his charge authorizing appellant’s conviction of willfully driving cattle from their accustomed range have been given. He could not have been convicted of that offense under the indictment herein, charging simply that he and said two persons, Brawley and Eisher, stole said head of cattle. Neither should his charge to the effect that, if he willfully took the one head of cattle described in the indictment and drove it from its accustomed range without the consent of its owner, hut they do not find from the evidence beyond a reasonable doubt that he intended to appropriate it to Ms use and benefit and with the intent to deprive the owner of the value of it, then to acquit him. The evidence in this ease did not raise any such issue which was required to be submitted by the court to the jury for a finding. The evidence showed theft of the animal by appellant, Brawley, and Eisher.

After a careful consideration of the whole record and all of appellant’s assigned errors; the record shows that appellant had a fair and impartial trial with the evidence amply sufficient to sustain his conviction, and that no such error was committed, if any at all, as would authorize or justify the reversal of this case.

The judgment is therefore affirmed.
      <Sua>Eor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: DANE, J.

text:
    CUBIT v. JACKSON et al.
    (No. 7291.)
    (Court of Civil Appeals of Texas. Galveston.
    March 21, 1917.
    On Motion for Rehearing, April 17, 1917.)
    .1. Limitation on Actions <§=>39(2) — Specific Performance <§=>105(2) — Ten and Four Year Statutes.
    A suit seeking specific performance of an alleged contract and the right to recover thereunder a one-half interest in a tract of land is one for specific performance of a contract for conveyance of real estate, which, under direct provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5692, is not barred till 10 years after accrual, making four-year statute inapplicable.
    [Ed. Note. — Eor other, cases, see Limitation of Actions, Cent. Dig. § 515; Specific Performance, Cent. Dig. § 326.]
    On Motion for Rehearing.
    2. Appeal and Error <g=>173(10) — Pleading Defenses in Lower Court — Necessity.
    Where four-year statute of limitation was not pleaded as a defense in trial court, it is not available on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1104-1107; Limitation of Actions, Cent. Dig. § 736.]
    3. Specific Performance <§=>86 — Contracts Enforceable — Contract to Leave Property at Death.
    A contract with mother that, in consideration of her surrendering custody and service of her minor child, the other will educate minor and leave him all property possessed at death, is valid, and may be specifically enforced by minor where no statute is contravened.
    [Ed. Note — For other cases, see Specific Performance, Cent. Dig. §§ 223, 224.]
    Appeal from District Court, Austin County; Prank S. Roberts, Judge.

      Suit by Rufus Cubit against George Jackson and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    C. G. Krueger, J. E. Edmondson, and Duncan & Duncan, all of Bellville, for appellant. Johnson, Matthaei & Thompson, of Bellville, and Hannay ■& Hannay, of Hempstead, for appellee.
   DANE, J.

This suit was brought by plaintiff, Rufus Cubit, against defendants, George Jackson, Emma Byars and husband, Ed. Byars, Georgia Whitmire and husband, Rufus Whitmire, Mary Jane Abbs and husband, Jesse Abbs, and others whom it is unnecessary to name as they are not concerned in this appeal, to enforce specific performance of an alleged contract under which he claims the right of title to a one-half undivided interest in a tract of land in Austin county, Tex., containing 155 acres.

Plaintiff, among other things, alleges that when he was an infant, and on or about the 28th day of November, 1887, one John Cubit made and entere'd into a contract and agreement with the mother of plaintiff, Annie Davis, and his stepfather, Riley Davis that if the said Annie and Riley Davis would surrender and turn over to him, the said John Cubit, the care, custody, and control of plaintiff, that he, John Cubit, would take plaintiff, provide for, and educate him as his son, and give him the rights of a son and heir, and would leave to the plaintiff all the property of which he (John Cubit) might die possessed; that the said Annie and Riley Davis did, in pursuance thereof, turn over plaintiff to the said John Cubit under the terms of said contract and agreement; that the said John Cubit took charge of plaintiff under said contract, gave him the name of Rufus Cubit, and thereafter treated him as his son and kept him until his death on the 30th day of March, 1904, at which time plaintiff was 17 years of age; that at the time of his death the said John Cubit and his wife, Henrietta Cubit, who survived him, were the owners in community of the 155 acres of land in controversy in this suit; that he left no children or grandchildren surviving him; that by reason of the things above alleged plaintiff is entitled to specific performance of said contract and agreement, and the right to recover thereunder a one-half undivided interest in said tract of land.

Defendants answered by general denial, and specially pleaded the statute of limitations of three, four and five years in bar of plaintiff’s right to recover. The defendants George Jackson, Emma Byars and husband, Ed. Byars, and Georgia Whitmire and husband, Rufus Whitmire, further specially pleaded that they are the owners of the whole of the 155 acres of land by virtue of and under the will of Henrietta Cubit, deceased, which had been duly probated on the 9th day of December, 1907; that at the time of the death of Henrietta Cubit she was the owner of the whole of said land, as it was the community property of her and her husband, Rufus Cubit, who died intestate prior to her death, and without children; that by the will of Henrietta Cubit the land in question was devised to Mattie Jackson, the deceased wife of George Jackson and the mother of the defendants Emma Byars and Georgia Whitmire, and that they are now the owners of said land, except 38¾ acres of same sold by them to Jesse Abbs and wife, Mary Abbs. They also further pleaded that:

“On or about the-clay of -, Mattie Jackson and defendant George Jackson entered into a written contract with Henrietta Cubit, and under and by the terms of which said Mattie Jackson and George Jackson agreed to take care of said Henrietta Cubit during the remainder of her life, and in consideration thereof the said Henrietta Cubit promised and agreed to give to the said Mattie Jackson and George Jackson a one half interest in her 155 acres of land, home place, and all other property, and the other half of said property was also to be given to said Mattie Jackson upon the payment of all the indebtedness against said estate, consisting of the note payable to the order of Miss Annie Matthews and th<e payment of the funeral expenses and ’other debts. And defendants further say that, pursuant to this contract, said George Jackson and Mattie Jackson proceeded to and did take care of said Henrietta .Cubit during the remainder of her natural life and made provisions for the payment of ⅞11 the debts of said Henrietta Cubit’s estate.”

Defendants Jesse and Mary Abbs pleaded their title to the 38¾ acres of said lan'd purchased from George Jackson and others, and also pleaded .the statutes of limitation of three, four, and five years.

The case was tried before a jury. The only issue submitted to the jury by the court was as follows:

“At the time Annie Davis gave her infant child, Rufus Cubit, to John Cubit for support, maintenance, and education, did John Cubit, in addition thereto or in consideration therefor, agree with Annie Davis to give all his property, at his death, to said Rufus Cubit? You will answer this question, ‘Yes,’ or, ‘No.’ ” To which the jury answered: “Yes.”

Upon the answer of the jury plaintiff asked for a judgment for one-half undivided interest in said land. The defendants also asked for judgment in their favor. Whereupon the court refused to enter judgment for plaintiff and rendered judgment for defendants Jesse and Mary Abbs for the 38¾ acres of said land claimed by them, and for the defendants George Jackson, Emma Byars, and Georgia Whitmire for the remainder of said land.

In support of the judgment rendered, the court filed his findings of fact and conclusions of law, in which is to be found the following :

“This cause was tried before a jury and one question of fact submitted, whether the verbal contract was made and entered into by and between Annie Davis and John Cubit as alleged in plaintiff’s petition, the jury answered said question in the affirmative.
“I therefore find as a fact that on the 28th day of November, 1887, Annie Davis entered, into a verbal contract with John Cubit of Austin county, Tex., by which she agreed to give unto said John Cubit her illegitimate Jew baby, Rufus, an infant about four months old, and to relinquish all parental care, custody and control of said son, and to give same to said John Cubit, and in consideration therefor the said John Cubit agreed to take, raise, and educate said child, the plaintiff! here, as his own son, and to give unto him, the said plaintiff, at the death of him, the said John Cubit, all the property the said John Cubit should die seised and pos-SGSSGCl of. :tt
“I find that John Cubit and Henrietta Cubit lived together as husband and wife prior to making of this contract until 30th ^ day of March, 1904, when John Cubit died intestate and without issue, and at the time of the making of said contract owned as the community homestead the realty described in plaintiff’s petition and being the same owned by them at the time of John Cubit’s death in 1904; that said Rufus lived with John Cubit as his son from date of contract until John Cubit died, and continued to live in the neighborhood until this suit was filed. „ .
„ . “I find that, after the death of John Cubit, his wife, Henrietta Cubit, being old and infirm and feeble in health, induced a niece of Henrietta Cubit, Mattie Jackson, together with her husband, George Jackson, to remove from North Texas to Austin county to take care of her during her old age, and, accordingly, 'they moved to her home and on the land in controversy, and did take care of her until she died.
“X find that Henrietta Cubit, after the death of John Cubit, used and occupied said land as her homestead,' and before her death made a will wherein she correctly recited that said lands were the community property of herself and her deceased husband, and individually and as such survivor bequeathed all the land in controversy to Mattie Jackson.
“In 1907, Henrietta Jackson died, and her said will was duly probated in the probate court of Austin county, Tex., on the 9th day of December, 1907, and from the foregoing dates Mattie Jackson and George Jackson, her husband, continued in possession of said lands, paying taxes thereon and using same as a home-
“I find: That after probate of will Mattie Jackson, joined by her husband, George Jackson, by deed duly registered, conveyed 38¾ acres of said tract of land to Jane Abbs and husband, Jesse Abbs. That Mattie Jackson died intestate on or about the-day of-, 1913, and was survived by her husband, George Jackson, and two daughters, Georgia Whitmire and Emma Byars, and I find that George Jackson and his daughter Georgia Whitmire are in possession of the remainder of said land herein sued for. That plaintiff filed his suit in 1914 and within ton years after the death of John Cubit, and I further find that said suit was not brought without four years after the death of líenrietta Cubit or within four years after the probate of her will, and that more-than five years elapsed after the probate of said will under which defendants claim title and during which time defendants were in peaceable and adverse possession, claiming title and paying taxes thereon, without notice of claim of Rufus Cubit, before said suit was filed.”
“Conclusions of Law.
“I conclude as a matter of law that the parol agreement mado the basis of this suit is a valid contract, and, having been performed by plaintiff and his mother, then the other contracting party and his estate of which he died possessed should be required to respond in specific performance subject to such limitations as may be invoked by law or equity.
“The beneficiary, Rufus Cubit, under this contract having performed his part of the contract, was entitled to all the property and immediately became possessed of the right to the equitable title thereto of which John Cubit died seised and possessed, subject, however, to the rights of the surviving wife. His right to institute suit to establish and have decreed in himself the equitable title to the realty accrued with the death of John Cubit, and the right to sue for possession thereof and invest himself with the legal title accrued with the death of the surviving wife, if another claimed adversely. * * *
“The defendants having specially pleaded the three, four, and five years’ statutes of limitation, and having pleaded that more than four years had elapsed since the probating of the will in which the plaintiff was an interested party and under which said defendants deraign title from the sovereignty of the soil to land in controversy, and although the jury determined the question and found as a fact that' said contract was made, I am nevertheless of 'the opinion that defendants have the legal title to said property, and that the four-year statute of limitation without the aid of the five-year statute of limitation will deny the plaintiff the right to enforce his equitable title and recover possession of said property from the defendants, and that defendants are entitled to judgment.”

By appellant’s assignments 1, 2, 5, 6, 7, 8, and 9, the judgment is attacked from every conceivable viewpoint. The main and controlling contention, however, is that as the jury and the court found that the contract and agreement between John Cubit, deceased, and the parents of plaintiff, Rufus Cubit, alleged by plaintiff, was a valid and binding contract, made for and inuring to the benefit of plaintiff, the trial judge'erred in rendering judgment in favor of defendants upon his conclusion that plaintiff was barred from recovery under the four-year statute of limitation pleaded by defendants, because by article 5092, Vernon’s Sayles’ Civil Statutes, the Legislature has specially provided that suits for specific performance of a contract for the conveyance of real estate may be prosecuted at any time within ten years after the accrual of a cause of action arising thereunder, and that therefore these provisions apply to the instant case, and the four-year statute of limitation has no application.

This contention, we think, is the controlling, if not the only, issue presented for our decision.

It is shown by the petition of plaintiff that his suit is brought to enforce specific performance of the contract alleged by him. It is also shown by the undisputed evidence, by the findings of the jury and of the trial court, that such contract was made as alleged by plaintiff for plaintiff’s benefit. It is also shown by the undisputed evidence that plaintiff’s suit was brought within ten years after his cause of action accrued. The conclusion of the trial judge, as shown by the conclusions of law filed by him, is in effect a conclusion that -plaintiff would be entitled to recover, except for the fact that he is barred by the four-year statute of limitation pleaded by defendants.

It is provided by article 5692, supra, that:

“Any action for the specific performance of a contract for the conveyance of real estate shall be commenced within 10 years next after the cause of action shall have accrued, and not afterward.”

In the case of Riley v. McNamara, 83 Tex. 11,18 S. W. 141, Chief Justice Stayton, speaking for the Supreme Court of this state, said:

“Appellant also pleaded stale claim, and the statutes of limitation of three, five, and ten years, and the court sustained a demurrer to the plea, asserting laches, and seeking to set up the increased value of the land and other like matters in bar of the suit, and on the trial refused to hear any evidence, under the pleas of limitation, other than such as had bearing on the statutory bar for specific performance. Appellant neither pleaded nor attempted to prove a demand for the purchase money, nor did he allege that the contract had been in any manner rescinded; and, under this state of facts, there was no error in the ruling of the court referred to. If appellant desired to rescind the contract on account of the failure of appel-lee promptly to pay the purchase money when it became due, he should have taken steps looking to that end; and, not having done so, he could not, by lapse of time short of that prescribed by the statute as a bar to such actions, defeat appellee’s right to have the contract specifically performed. The statute provides that actions for specific performance of contracts to convey real estate shall be barred in 10 years (R. S.-art. S209), and the defense of stale claim is no longer applicable to such contracts as c6me within the meaning of the statute; but, were this otherwise, such a plea could not bo sustained, under the facts of this case, for, under the former rules, the claim would not be stale short of the period now fixed for the statutory bar. If wo find when the last maturing of the notes executed by appellee became due, or the date when Harwood conveyed to appellant be considered the date from which limitation would run, then, in either case, 10 years had not elapsed after the cause of action accrued before this suit was commenced. It is too clear, in view of the relation of the parties created by the contract, that limitation based on three and five years had no application to the case.”

There is neither pleading nor evidence to the effect that Mattie Jackson, deceased, and her husband, George Jackson, one of the ap-pellees herein, ever held the 'land in controversy, or any portion thereof, under a deed or deeds duly recorded, etc., or that they were purchasers in good faith without notice of appellant’s claim. Nor is there pleading or evidence to the effect that Emma Byars and husband, and Georgia Whitmire and husband, ever so held said land, or were such innocent purchasers thereof in good faith without notice of appellant’s claim. None of them are seeking to recover through and under a deed or deeds, or as purchasers in good faith without notice of appellant’s claim, but they are asserting a right to recover under and by virtue of the will of Henrietta Cubit, and under their plea of limitation. The trial judge so considered their suit and found that said appellees were claiming and holding possession of said land through and under the will of Henrietta Cubit, and that they had held peaceable and adverse possession thereof for more than four years after the death of Henrietta Cubit, and after the probate of her said will under their plea of limitation.

The finding of the jury is that the contract as alleged by plaintiff, Rufus Cubit, was made and entered into as alleged by him. The trial judge in effect found that plaintiff and his parents fully complied with said contract and that plaintiff would be entitled to recover a one-half undivided interest in the land in controversy, except for the fact that he is barred by the four-year statute of limitation pleaded by appellees.

Therefore, if the judgment of the trial court can be sustained at all, it must be upon the finding that the four-year statute of limitation pleaded by appellee is applicable to the suit of the plaintiff. We do not think the four-year statute of limitation has any application to the cause of action asserted by thé plaintiff in his petition, but that the period prescribed by said article 5692, only, applies to such causes of action.

We therefore conclude that the court erred in rendering judgment against appellant and in not rendering judgment in his favor against all the defendants for a one-half undivided interest in the land in controversy, subject to an eauitable partition thereof between the parties owning an interest therein. Having so concluded, we reverse the judgment of the trial court and here render judgment for appellant, Rufus Cubit, for an undivided one-half interest in the land described in his petition.

Reversed and rendered.

On Motion for Rehearing.

Appellees have filed their motion for rehearing, and therein they first insist that this court erred in holding, in its original opinion, that the suit of appellant was a suit for specific performance of a contract for the conveyance of real estate,. and that the ten-year period of limitation, as prescribed by article 5692, Vernon’s Sayles’ Civil Statutes, only applies to such contracts, and that the four-year statute of limitations has no application to the same.

We may answer this contention, first, by stating that appellant, by his reply to the motion for' rehearing, has directed our attention to the fact that in our original opinion we stated that appellees had pleaded the four-year statute of limitation in bar of appellant’s right to recover, and that we were in error in so stating. He points out that the only reference to the four-year statute of limitation to be found in appellant’s answer in the trial court was contained in their exception to the plaintiff’s petition, and that the trial court 'overruled said exception, and from this action of the court no complaint was made by appellees, and therefore such plea was by appellees waived, and that ap-pellees did not further plead said statute as a defense to the plaintiff’s cause of action. and the same is not now available to them as a defense.

After a reinspection of appellee’s answer, we find that appellant’s statement is correct, arid therefore we find that, as the four-year statute of limitation was not pleaded as a defense in the trial court, appellees cannot avail themselves • of such defense on appeal, and therefore, if for no other reason, the contention of appellees, and the finding of the trial court that appellant’s cause of action was barred by the four-year statute of limitation, must be overruled. But under the authority cited in the original opinion, as well as under the following decisions, to wit, Jordan v. Abney, 97 Tex. 296, 78 S. W. 486, at page 489, and Xeary v. Cummins, 28 Tex. 92-97, we hold that the plaintiff’s suit is one for specific performance of a contract for the conveyance of real estate, and that the four-year statute of limitation has no application to the same.

In the case of Jordan v. Abney, supra, it is said:

“That a contract between two persons, upon valuable consideration, that one will, at his death, leave property to the other, is enforceable, where no statute is contravened, is held by an almost unbroken current of authority, English and American. Such contracts, when sufficiently certain, have been held valid and enforceable, in equity as well as at law, whether they provide for the payment of money, or the leaving of specific property, or of all or a moiety of that which the obligor should leave at his death. They have usually been put in the form of agreements to bequeath by will, but this has not been regarded as an essential feature; agreements to leave the property, or that the obligee should have it at the death of the obligor, being held sufficient. * ⅜ *
“The legal effect of this kind of a contract is different from that given by law to mere statutory adoption, and we apprehend it has been through failure to observe this distinction that some of the courts whose decisions are referx-ed to have been led to the conclusion that such contracts are excluded by the statutes allowing adoptions. The latter, as we have pointed out, is not a contract, and statutes authorizing and regulating it do not undertake to regulato contracts. They are intended, rather, to give the right of inheritance, which does not arise from contract, but from the law, while rights such as those upheld in the authorities to which we have referred are created and fixed by contract.”

We think the conclusions reached, as expressed in our original opinion, properly disposes of the issues presented, and we therefore overrule the motion.

Overruled.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    ANDREW et al. v. MACE.
    (No. 5776.)
    (Court of Civil Appeals of Texas. Austin.
    April 18, 1917.)
    1. Brokers <§=>85(1) — Commissions — Right to.
    Whei'e real estate is placed in the hands of a broker for sale in the ordinary way without any stipulation for exclusive agency, the principal may in good faith make a sale himself free from liability for a commission, and hence, in an action by a broker to recover commission claimed, although the sale had been directly made by the px-incipal, where the pi-incipal contended that the broker had concealed the fact that he had interested the purchaser for the purpose of enabling the purchaser to obtain the land at the lowest possible price, evidence that the principal did not know the broker was claiming a commission and would not have sold at the price he did had he known that fact is admis- • sible.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106, 108, 110, 115.]
    2. Trial <®=»252(1) — Instructions—Evidence.
    In an action to recover commission, though the sale was made by the principal direct, a charge that, if the broker could have obtained a greater sum stated than that obtained by the principal, and, knowing that the principal was about to sell, failed to infoi'm him, the broker’s failure was a breach of duty precluding recovery. is properly refused where there was no evidence that the buyer would have paid the greater sum referred to in the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596, 612.]
    3. Trial <®^260(9) — Instructions—Instructions Covered by Those Given.
    In an action to i-ecover commissions, though the sale was effected by the principal direct, a requested charge by the principal that, if before the employment of the broker the principal entered into negotiations with the purchaser which continued until the sale was finally effected, and the broker knew of the same, and did not inform the principal that he was negotiating with the same purchaser, but intentionally concealed that fact, as well as his intent to claim a commission, verdict should be for the principal, was refused. The court charged that, if the principal began negotiations which finally resulted in a sale, before the property was listed with the broker, and the broker in no way procured the sale, then verdict should be for the principal, and that, if the broker was an agent for the sale of the land, it was his duty to act in good faith, and he should conceal nothing which might influence his principal’s action, and if the broker was guilty of a concealment whereby the principal sold the land at a less sum than he would otherwise have sold, verdict should be for Mm. Held, that the requested charge was not covered by the charges given; for they did not concretely apply to the facts the rule that a broker must use the utmost good faith towards his principal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 658.]
    4. Brokers ⅞=»65(1) — Duties or — Good Faith.
    A real estate broker must deal fairly with his principal in order to be entitled to commissions, and, if guilty of any concealment of material facts, he is not entitled to a commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 48.]
    5. Trial <⅞^>260(1) — Instructions—Request.
    Where the chai-ge given correctly states the law on an issue, but does not apply it to the evidence, either party is entitled to prepare a charge applying the law to the evidence, and the refusal of such a chax-ge is not justifiable.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. § 651.]
    ■6. Trial ®=193(1) — Actions — Commissions —Instructions.
    In an action by real estate broker who claimed to have been the proeui-ing cause of a sale, a charge infox-ming- the jui-y what fact in the opinion of the court would constitute the procuring cause is improper; that being a question for the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 436.]
    Appeal from District Court, Lampasas County; E. M. Spann, Judge.
    Action by W. E. Mace against J. H. Andrew and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Matthews & Browning, of Lampasas, for appellants. Word & Walker, of Lampasas, M. M. White, of Belton, and J. C. Abney, of Lampasas, for appellee.
   RICE, J.

Appellee, a real estate agent, brought this suit against J. H. Andrew and wife, Jessie Andrew, Mrs. W. R. Williamson, E. A. Ramsey and wife, Annie Ramsey, and W. W. Morris, Jr., and wife, Daisy Morris, hereinafter called appellants, to recover commissions on sale by them to R. F. Senterfitt of the “Williamson ranch,” consisting of 1,948½ acres in Lampasas county, alleging that on the 27th day of November, 1913, they listed same with him for sale at $20,000, agreeing to pay him a commission of 5 per cent, for his services, and that, after procuring a purchaser therefor in the person of R. F. Senterfitt, they, with the knowledge of such fact, and for' the purpose of evading the payment of his commission, sold said land themselves to Senterfitt for a less sum than they had authorized him to sell for, to wit, $17,500; that but for such interference and the sale he would within a reasonable time have sold said land for $20,000. Wherefore he prayed judgment for $1,000 as commission, and in the alternative for 5 per cent, commissions on $17,500, which he alleged was a reasonable compensation for his services.

Appellants answered: First, by general denial; second, they alleged that, if appellee after his employment by them entered into any negotiations with Senterfitt for the sale of the ranch referred to, or made any effort to sell same, then such negotiations and efforts were unknown to these appellants until after they had effected a sale of said land to Senterfitt; third, that if appellee entered into negotiations with Senterfitt for the sale of the ranch, he acted in bad faith with appellants in not informing them of such negotiations, though he knew that appellants themselves were making an effort to sell same to Senterfitt, that he failed to deliver certain messages sent by them to Senterfitt, and kept them in ignorance thereof, and that he thereafter -conspired with Senterfitt to enable him to purchase said land at the lowest price possible, averring that they would not have sold the land to Senterfitt for the price they received therefor had they known prior to such sale that appellee was claiming, or expected to claim, a commission on account of such sale, and that appellee conspired with Senterfitt to keep them in ignorance of said fact-, and that on account of the absence of such knowledge and such concealment appellants were induced to make the sale for a less sum than they otherwise would; fourth, they further alleged that negotiations with Senterfitt were begun by them before the land was listed with appel-lee as agent for sale, and that such negotiations were continued until the sale was concluded, without knowledge on their part that appellee was negotiating with such purchaser, averring that the fact of appellee’s negotiations with such purchaser was intentionally and fraudulently concealed from appellants by appellee, who knew that appellants would sell said land for a less price if they had no commission to pay than if they had a commission to pay to appellee, setting forth other acts of bad faith on the part of appel-lee.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee for the sum of $475, from which appellants have prosecuted this appeal.

The facts, briefly summarized, show that appellants listed the ranch with appellee for sale on or about the 17th of November, 1913, but from their evidence it appears that before doing so they had begun negotiations with Senterfitt, the purchaser, for a sale of said property to him, and without any knowledge on their part that appellee was negotiating with him, and that such negotiations finally resulted in a sale by them to him of such property for the sum of $17,500. But there was testimony to the effect that before appellants begun negotiations with Senterfitt for the sale appellee had interested him in the land by taking him out for the purpose of inspecting it, and that Senterfitt had agreed with him upon a price therefor, all of which he claimed had been communicated by him to appellants through their agent, Andrew, before the consummation by appellants of the sale to such purchaser. But there is evidence showing, and tending to show, that the fact of such negotiations on the part of ap-pellee with Senterfitt were intentionally concealed by him from appellants, and the evidence suggests the theory that this may have been done by him for the purpose of enabling Senterfitt to purchase the property for a less price than he otherwise could have done.

During the progress of the trial, while J. H. Andrew was on the stand as a witness in his own behalf, it having been shown that he, for himself and the other appellants, had had negotiations with Senterfitt for the sale of the ranch, his counsel propounded to him the following questions:

(1) “Did you or not know at the time the trade for the land was closed with Senterfitt that plaintiff was entitled to or was claiming a commission on account of the sale of the land?”
(2) “If you had known at the time the trade with Senterfitt was closed that plaintiff was entitled to or claimed a commission on the sale, of the land, would you or not have sold the land for only $17,500, or would you or not have refused to sell the land at that price?”

Appellants 'then offered to prove in answer to said questions and in reply thereto that the witness (as stated by appellants’ attorneys) would have testified that he did not at that time know that appellee was entitled to or was claiming a commission on account of the sale of said land, and that if he had known same he would not have sold said land for only $17,500, but would have refused to sell said land at that price. The appellee then objected to each of said questions as they were propounded and to the witness answering same, upon the ground that same were immaterial, which objection was by the court sustained, and the witness not permitted to answer same, to which ruling of the court appellants, by their counsel, then and there excepted and reserved their bill. This action of the court constitutes the first assignment of error.

Mace had no exclusive agency to sell the land, appellants reserving the right to sell themselves, and, according to their contention they had first found the purchaser, and, without knowledge that Mace had undertaken to sell to him, had concluded the sale. Mace, on the other hand, was contending that he had first found the purchaser, of which he informed appellants and would have effected a sale if it had not been for the interference of appellants.

“Where real estate is placed in the hands'of an agent or broker for sale in the ordinary way, without stipulation expressed or implied that the agent will have exclusive right to sell, the principal is not deprived of the right in good faith to make a sale himself, free from liability to the agent for his commission.” McCombs v. Moss, 121 Ark. 533, 181 S. W. 907.

See, also. Burdett v. Parish, 185 Mo. App. 605, 172 S. W. 620.

It seems to us that it was highly material for them to show in their own behalf that, if they had known that Mace was negotiating with Senterfitt for the sale of the land, and that he expected to claim a commission on ■such sale, they would not have sold it for $17,500; the irresistible inference being that they would have demanded more, in order to have included the commission that they would have expected to pay, if they had known such fact. This evidence, being admissible on the issue of concealment raised by the pleadings, and that of good faith in making the sale on the part of appellants, was, we think, admissible. We therefore sustain the first assignment of error complaining of this ruling.

Appellants requested and the court refused to give the following charge, upon which is predicated appellants’ second assignment of error:

“The plaintiff in Ms petition alleges that under the contract with defendants to sell the land described in said petition and procure a purchaser therefor for the sum of $20,000 that he could have sold same for said sum had he been given a reasonable time so to do. Now, if you believe from the evidence that the plaintiff knew of the negotiations of the sale of said land by and between defendants and R. E. Senterfitt, and knew at the time of or before said sale that the defendants were about to sell said land to said Senterfitt for about the sum of $17,500, and, so knowing, failed to inform the defendants that he could sell said land for the sum of $20,000, if given a reasonable time, then such failure was a breach of duty that he owed defendants, and you will return a verdict for the-defendants.”

This charge was properly refused, because there was no evidence in the record going to show or tending to show that Senterfitt was willing to pay $20,000 for said land, for which reason this assignment is overruled.

Appellants requested and the court refused to give the following charge to the jury:

“If you find from the evidence that before-the alleged employment of plaintiff to sell said land the defendant Andrew, for himself and for the other defendants, entered into negotiations with said Senterfitt for the sale to him of the land described in plaintiff’s petition, and such negotiations continued until the sale was finally effected, and further find that during such negotiations the plaintiff knew of same and did not inform defendants that he was negotiating with said Senterfitt for the sale of said land, but intentionally concealed from said defendants the fact of his negotiations, or the fact, if it be a fact, that he intended to claim a commission of defendants, he intending that defendants should sell said land to said Senterfitt, and that he (plaintiff) would after such sale claim a commission on account thereof, then you will return a verdict for defendants.”

Appellants assigned the refusal of this charge as error. Appellee contends, however, that this phase of the case was covered by the main charge hence he insists there was no error in its refusal; the portions of the main charge referred to by appellee being as follows, to wit:

“Part 5. If you believe from the evidence that the defendants began the negotiations which finally resulted in the sale of the land in question to the said Senterfitt, before said property was listed with plaintiff, if you find from the evidence that it was listed with the plaintiff, and that the plaintiff in no way procured said sale, if any, but that said Senterfitt purchased said property of his own accord, or by reason of inducements of defendants, or any one else other than the plaintiff, or by reason of any fact or thing independent of anything done or said by the plaintiff to the said Senterfitt, then you will return a verdict for the defendants.” •
“Part 6. If you find from the evidence that the plaintiff was, as he alleges, the agent of the defendants for the sale of the land described in his petition, then the court instructs you that it was his duty to act in good faith for the advancement of the interest of defendants in all dealings concerning the sale of said land, and to conceal nothing from them which might influence their action, and to make known to them every material fact which came to his knowledge, and which might influence their action in making the sale of said land, and if you find from the evidence that the plaintiff did not act in good faith for the advancement of the interests of defendants, or that he concealed any fact or facts which would have influenced them in their action in making a sale of said land, and if you further .find from the evidence that the want of good faith on the part of the plaintiff, if any, or the concealment on the part of plaintiff, if any, or the failure on the part of plaintiff to make known any material facts, if any, caused the defendants to sell said land at a price less than they would have sold same if they had known such facts, then you will return a verdict for the defendants.”

The fifth paragraph cannot be regarded as embracing the same phase of the case as covered by the special charge, because it does not even suggest the idea of bad faith on the part of the agent, which is involved in the special charge; and, while the sixth paragraph discusses this view of the case and is abstractly correct, still it does not pertinently apply the law to the facts of the case, as is done by the special charge. If Mace knew that appellants had begun negotiations for the sale of the land with Senter-fitt, which finally resulted in the sale of the land, and did not inform defendants that he was also negotiating with Senterfitt for the sale thereof, but intentionally concealed from defendants the fact of his negotiations, of the fact that he was intending to claim a commission from defendants, then he was acting in bad faith, and was not entitled to recover. This constituted the main defense of appellants, and they were entitled to have it submitted to the jury.

“An agent in order to recover commissions must deal fairly with his principal. He is held to the duty of imparting any information tohis principal which tends to his advantage, or might influence his judgment, and the intentional concealment of important and material facts from the knowledge of his principal by the broker will deprive him of his right for commissions for procuring a buyer.” Bapalje on Beal E'state Brokers, p. 107, § 60; volume 4, Kuling Case Law, subject “Brokers,” § 22, p. 272.

See, also, Pratt v. Patterson, 112 Pa. 475, 3 Atl. 858; Id., 12 Phila. (Pa.) 460; Moore v. Kelley, 162 S. W. 1034, wherein it is said, as shown by the syllabus, that'an agent who fails to disclose any fact which would naturally influence his employer’s conduct, or acts adversely to his employer, -is guilty of fraud upon him so as to forfeit his right to compensation.

In Murray v. Beard, 102 N. Y. 508, 7 N. E. 554, it is said that:

“An agent is held to uberrima fides in his dealings with his principal, and if he'acts adversely to his employer in any part of the transaction or omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services.”

The special charge presented and refused tersely and pertinently presented the ■main feature of appellants’ defense, and should have been given.

In M., K. & T. By. v. McGlamory et al., 89 Tex. 635, 35 S. W. 1058, it was held, as shown by the syllabus, that:

“Where the charge.given correctly states the law on an issue, but does not apply it to the evidence, a party has a right to prepare and have given a charge requiring the jury to find whether the evidence establishes the existence of any specified group of facts which if true would in law establish his plea, and instructing them, if they find such group of facts proven, to find in his favor.”

This is exactly what the special charge in the present case undertook to do, and the failure to give same was error. We therefore sustain the third assignment.

We do not think that special charge No. 6 should have been given, because it singled out and told the jury what fact in the opinion of the court would constitute the procuring cause of the sale. The question of procuring cause was one of fact for the determination of the jury, and it was improper for the court to make a suggestion as to what constituted such cause. While not reversible error, we do not think it was proper for the court to have given said charge requested by appellee.

■ Eor the reasons indicated, the judgment of the court below is reversed, and the cause remanded.

Beversed and remanded.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    VAKY v. PHELPS.
    (No. 5832.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 11, 1917.
    Rehearing Denied May 2, 1917.)
    1. Pleading <©=67—Anticipating Defenses.
    In an architect's action for services in drawing plans, under the allegation that the plans were accepted by defendant, it was not necessary for plaintiff to allege defendant’s knowledge of defects in the plans when he accepted them.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 139.]
    2. Appeal and Eeeoe <§=1040(16) — Haemless Eeeoe—Exceptions to Pleading.
    Error, if any, in overruling exception to a supplemental petition for insufficiency of allegations is harmless, where the amended petition on which the case was tried contained the same language and no exception was taken to it.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4104.]
    3. Appeal and Eeeoe <©=1040(11)-—Harmless Eeeoe—Oveeeuling Exceptions.
    In architect’s action for services in preparing plans defended on ground that plans did not comply with building ordinances, error, if any, in overruling exceptions to allegations as to the building ordinances was harmless, where the jury found that the architect prepared and completed the plans in accordance with his employment, and that the defendant accepted them, in view of rule 62a (149 S. W. x).
    [E'd. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4099.]
    4. Appeal and Eeeoe <®=544(1) — Scope of Beview—Becoed—Bill of Exceptions.
    To secure revision on appeal of the trial court’s action in giving or refusing special instructions, a written bill of exception must be taken.
    5. Judgment <©=256(6)—'Veedict to Suppoet —Sufficiency.
    In architect’s action for compensation for plans prepared, a verdict that he prepared and completed the plans in accordance with his employment, and that defendant accepted the plans, that the cost of the building would have been $69,000, that defendant agreed to pay 3½ per cent, thereof to the architect, is sufficient to sustain a judgment for 3½ per cent, of $69,000.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 452.]

      6. Contracts <§=>323(1) — Performance — Architects — Questions for Jury.
    Evidence held to warrant submission to jury of issue whether an architect completed plans in accordance with his employment and whether the employer accepted them.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1466.]
    7. Appeal and Error <§=>928(2) — Presumptions.
    Where an issue was submitted without objection in the form required by statute, it raises the presumption on appeal that appellant waived any objection that the evidence was insufficient to support the instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3750.]
    8. Appeal and Error <§=>263(3) — Preservation of Grounds of Review — Special Issues.
    If a party desires special issues relied upon by him to be submitted to the jury, he- must prepare or ask the court to prepare a special instruction submitting such issue, and, if the instruction is refused,, raise the question on appeal through a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525.]
    9. Appeal and Error <§=>1170(10) — Reversal —Computation of Damages.
    Where an architect in action for compensation claimed 3½ per cent, of $70,000, the estimated cost of building-, and the evidence showed that the lowest bid was $69,800, and the issue submitted was, “What would have been the cost of a building erected in accordance with the plans?” and the answer was “$69,800,” and to another issue as to amount recoverable the jury answered, “Three and one-half per cent.,” error, if any, was harmless, in view of rule 62a; the difference in recovery between the actual and estimated costs amounting to about $7 only.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4060, 4544.]
    10. Contracts <§=>234 — Compensation of Architect — Deduction.
    In an architect’s action for compensation for plans drawn, defendant is not entitled to a deduction from the agreed compensation of an amount required to change the plans to conform to his requests, where the jury found that he had accepted the plans as submitted.
    [Eld. Note. — For other cases, see Contracts, Cent. Dig. §§ 1099, 1100.]
    11. Appeal and Error <§=>1033(7) — Harmless Error.
    In architect’s action for compensation on basis of 3½ per cent, of total cost, a finding that it would not have cost over $70,000 to have constructed the building was harmless as to the defendant, since if the evidence would not have supported the finding, the cost would have been greater and plaintiff’s recovery would have been greater.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4059.]
    12. Contracts <§=>294 — Performance — Substantial Compliance. .
    Where an architect employed to draw plans for building estimated to cost $70,000 drew plans which cost $75,000, he substantially complied with the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1352, 1357-1361.]
    13. Appeal and Error <§=>281(1) — Preservation of Ground of Review — Motion for New Trial.
    Errors not brought to the attention of the trial, court in motion for new trial cannot be considered, unless they are fundamental errors apparent from the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3281.]
    Appeal from District Court, Bexar County ; Joseph Jones, Special Judge.
    Action by Henry T. Phelps against P. Va-ky. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Emmet L. Coleman, of Corpus Christi, and Dewright & Douglas, of San Antonio, for appellant. Scott & Dodson, of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit by Henry T. Phelps against P. Vaky to recover compensation for architect services. It was a jury trial, the case being submitted to the jury upon special issues. On the verdict of the jury the court rendered judgment for Phelps, the appellee, against Vaky, the appellant, for $2,54S.S5.

The cause of action pleaded of which there was evidence, limited by special instructions to the jury, and the verdict thereon, is substantially as -follows:

The appellant, P. Vaky, employed Henry T. Phelps, who lived in San Antonio, Tex., as an architect to prepare plans and specifications for a building, estimated to cost approximately $70,000, being a three-story fireproof building, 100 by 150 feet in size for appellant’s lot in Corpus Christi, Tex. The dimensions of the lot .were furnished to appel-lee by appellant. After several preliminary sketches were made by the architect and submitted to the appellant, which were revised and approved by him, the architect, upon instructions, prepared complete plans and specifications and submitted them to appellant, who again suggested changes, which were incorporated into new complete plans and specifications, which in turn were submitted to the appellant, who approved and accepted them and ordered them submitted to various contractors for the purpose of having the building erected according to the plans and specifications.

The architect was employed under an express contract to prepare the plans and specifications which were accepted as above stated. The price was expressly agreed upon, and was to be 3½ per cent, of the estimated cost of the building. It was contemplated by both appellee and appellant that bids for constructing the building were to be received from a number of contractors, the lowest responsible bid to be accepted. Bids were received. The lowest bid was made by P. M. Gordon, who offered to construct the building for $69,800. The appellant refused to build, and also refused to pay the architect any compensation for his services.

For defense against the cause of action appellant alleged that the property on which the building was to he erected was within the “fire limits” of the city of Corpus Christi; that an express agreement was made to pay appellee 3½ per cent, of the cost of the building for preparing complete plans and specifications if appellant should build, or 1¾ per cent, of the cost of such building, in case appellant should not build; that the dimensions of the building were to be commensurate with appellant’s two adjoining lots described in appellee’s first amended petition; that appellee represented himself to be skilled and competent in the art of preparation of suitable plans and specifications for the contemplated building; that upon such representations appellant relied and confided to appellee the preparation of plans and specifications in compliance with the laws of Texas and the ordinances of the city of Corpus Christi. He further alleged that the plans and specifications were defective in 18 particulars, briefly summarized, as follows: Did not conform to dimensions of the lots. ' No provision for sunlight and ventilation of lavatories and corridors. Unsatisfactory location of columns. No provision for painting of interior walls of storerooms. No provision for connection with city water mains. The plans failed to comply with the ordinances of the city of Corpus Christi in six different particulars. The provision for quality of tiling was confusing. In addition to the above, it is alleged in defense that the plans were for a building costing $70,000 or $80,000, whereas the agreement was for plans for a building to cost not exceeding $60,000, and finally alleged that the plans were altogether worthless and useless.

Specific mention of relevant pleadings and evidence will be made in discussing the 31 assignments.

The first assignment is that it was error to overrule appellant’s special exception to the third paragraph of appellee’s supplemental petition, which alleged that appellant accepted and approved the plans and specifications. The exception was that the allegation should have stated that the appellant knew of the several defects at the time of acceptance and approval. This was a fact for the defense to allege.

If there is any merit in this exception in itself, it is harmless error in this case, because a similar allegation is made in nearly the same language in the third paragraph of appellee’s first amended petition, on which the case was tried, to which no exception was taken.

The second, third, fourth, fifth, and sixth assignments complain of error in overruling exceptions to appellant’s allegations in reference to building ordinances of the city of Corpus Christi. If error at all, it is harmless error, in view of the issues submitted to the jury and the verdict thereon. The issue was, Did the appellee prepare and complete the plans and specifications in accordance with his employment, and did the appellant accept them? The verdict was in the affirmative. The verdict is supported by the evidence. The assignments present no reversible error, and are overruled. Rule 62a (149 8. W. x.)

All the assignments from 7 to 23, inclusive, urge error of the court in giving or refusing special instructions. There is no bill of exception in the record. In order to have a revision, on appeal of the trial court’s action in giving or refusing a special instruction, a written bill of exception must be taken. Gulf, T. & W. Ry. Co. v. Dickey (Sup.) 187 S. W. 18.8.

The twenty-fourth assignment is that the court erred in rendering judgment for 3½ per cent, of $69,800, because the verdict is not sufficient to sustain the judgment.

The verdict is that appellee prepared and completed the plans and specifications in accordance with his employment, and that the appellant accepted such plans and specifications, and, further, that the cost of the building erected in accordance with these plans and 'Specifications would have been $69,800, and that appellant agreed to pay ap-pellee 3½ per cent, thereof for his compensation for preparing the said plans and specifications. We think the judgment is sustained by the verdict. Whether the verdict is sustained by the evidence is not a question raised by this twenty-fourth assignment, which is overruled, but the insufficiency of the evidence to support the verdict is presented by the twenty-fifth assignment. The testimony of appellee himself is that he prepared complete plans and specifications for a building exactly as he was employed to do; that all plans and specifications were checked over and examined by appellant, approved and accepted. This issue was pleaded and submitted to the jury by question No. 2, and answered in conformity with appellee’s testimony.

It is true appellant pleaded that he confidently expected the architect, in effect, to guarantee that the plans would fit the dimensions of the ground and be free from, defects, such as dark and unventilated lavatories and corridors, and violations of building ordinances of the city of Corpus Christi. There was neither pleading nor evidence that the architect expressly agreed to such a contract, or that such a contract was suggested at the time of the employment.

Then again, the evidence shows that the defendant, himself, furnished the dimensions of his property for the purpose of forming the basis for the dimensions of the building., It further shows that defendant was satisfied with all the arrangements of corridors and lavatories. There is evidence that the building planned and specified complied with all the building ordinances of Corpus Christi, though there is evidence that the fire escapes were ladders and not stairs, as required by the ordinance, but as to this the change could easily have been made if nee-ossary, and would have been made In the plans and specifications of the fire escape.

The evidence abundantly supported the second issue submitted to the jury. The fact that the issue was submitted without objection in the form required by the statute compels us to presume that appellant waived any objection that the evidence was insufficient to support the instruction. Riedel v. Wenzel, 186 S. W. 386.

If appellant desired the issues relied upon by him submitted to the jury, the rules of practice provided by the statute required appellant to prepare, or ask the court to prepare, a special instruction, submitting to the jury those issues, and if this were refused, to bring the facts of the adverse ruling before this appellate court by bill of exception approved and signed by the trial judge. Railway v. Dickey (Sup.) 187 S. W. 188. This was not done; hence we are forced to confine our Investigation of the facts merely to the search for evidence to support the verdict upon the questions actually submitted. The question involved in this assignment was: Did the architect prepare complete plans and specifications in accordance with his employment, and did the appellant accept them? The evidence is that he did. The twenty-fifth assignment is overruled, and for the reasons above given the twenty-sixth assignment is also overruled.

In the twenty-seventh assignment it is urged that the answer of the jury to the fourth question submitted is too vague and uncertain to support the judgment rendered. The answer is: “Three and one-half per cent.” It fails to state what amount is to be multiplied by the 3⅛ per cent, to ascertain the product. The issue pleaded was that the architect was to prepare the plans and specifications for 3½ per cent, of the estimated cost of the building, which was $70,000. The evidence is that when the agreement for compensation was made $70,-000 was the estimated cost of the building, and was discussed rather extensively by both parties. It is true appellant testified that he understood from appellee that the estimated cost was only $60,000, but the jury found in favor of appellee’s version, which binds us. The jury could have properly found from the evidence that the agreed compensation was 3½ per cent, of $70,000. But appellee testified that the agreement was to pay 3½ per cent, of the cost of constructing by the lowest responsible bidder. The pleadings base the calculation upon the estimated cost of $70,000. The evidence bases it upon the cost as shown by the lowest responsible bidder, which was $69,800. The issue submitted was the actual cost of building. The question No. 3, submitted, conformed strictly to neither pleading nor evidence, for it reads as follows: “What would have been the cost ⅜ * * of a building erected in accordance with the plans and specifications * * *»¾ The answer was: “$69,800.” While recognizing the binding force of the rules of law requiring the allegata and pro-bata to correspond and requiring the courts to submit in special instructions only those issues made by the pleading and evidence, yet where the result in any event is practically the same, the only difference being to give to the appellant the slight advantage of a few dollars, in this instance $7, and especially where no objection was made to the special issue or to the variation between the pleading and evidence, and more especially where appellant expressly agreed, as in this case, that the 3½ per cent, should be, by the court, calculated upon the amount it would have cost to construct the building, as appears from the court’s recital in the judgment, we believe there is no harmful error, and under rule 62a we must hold, that the error, if any, is not reversible. We believe, however, that appellant should be held, from the record before us, to have agreed that the 3⅜ per cent, should Be by the court calculated upon the $69,800 found by the jury to be what the cost would be. The twenty-seventh assignment is overruled.

The twenty-eighth 'assignment complains of an excess of $125 in the judgment. The contention is that the evidence shows it would have cost the architect $125 more to have changed the plans and specifications to comply with certain suggestions made by the appellant after appellee had performed his contract fully and the work had been accepted by appellant. The jury found that appellee had fully performed his contract, and that appellant had accepted the work. No issue was submitted to the jury as to partial failure to perform and the value thereof. We overrule the twenty-eighth assignment.

The twenty-ninth assignment is that the evidence does not support the jury’s verdict, which was that it would not have cost over $70,000 to have constructed the building according to the plans and specifications made by appellant for appellee. While the evidence is conflicting, there is ample evidence to support the verdict. Furthermore, we cannot see that, even if the finding was error, it was such error as could be harmful, for if, as insisted by appellant, the cost would have been greater, the architect’s commission would have been greater. If by this assignment it is meant that plans for a building that would cost $75,000 was not a compliance with a contract to prepare plans for a building that was estimated to cost $70,000, the contention is untenable, as has been expressly decided in Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049.

The errors complained of in the thirtieth and thirty-first assignments were not brought to the attention of the trial court in the motion for new trial, and cannot be considered, for they are not fundamental errors apparent upon the record. The thirtieth is based upon conflicting testimony as to whether or not the footings did actually extend over upon the land of another, and whether the error, if any, was that of appellant or appellee. The thirty-first has been disposed of in our discussion of the twenty-seventh assignment of error.

It seems to us from the whole record, to which we were invited by the assignment of fundamental error, that the parties agree that appellee was employed by appellant for a certain purpose, and that appellee performed that service. The only material difference between them is the amount the architect’s compensation should be, in view of the fact that no building was actually constructed. Appellant contends, and, in effect, testified that he only owes 1¾ per cent, of $60,000, which he claims was the contemplated cost of the building. 1¾ per cent, of $60,000=41,050. On the other hand, appellee contends that appellant owes him 3 ½ per cent, of $70,000, which was the contemplated cost of the building.' 3½ per cent, of $70,-000=42,450. This issue was fairly submitted to the jury and determined in favor of ap-pellee.

The judgment of the trial court is affirmed.

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

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