author: HIGGINS, J.

text:
    FINK et al. v. BROWN.
    (No. 512.)

    (Court of Civil Appeals of Texas. El Paso.
    Feb. 3, 1916.
    On Rehearing, Feb. 24, 1916.)
    1. Master and Servant <§=>88 — Lending Servani>-Direction and Control.
    Where a servant is sent by his master to do work for a third person, he is, for the time being, the servant of him who exercises direction and control over the servant in the prosecution of such work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. ⅞= S&]
    2. Master and Servant @=284 — Lending Servant — Direction and Control — Question itor Jury.
    In an action by the servant of a machine company to recover against defendants, to whose ice plant he was sent by his employer for. the purpose of repairing a boiler, the question whether in the performance of such task plaintiff was subject to the direction and control of defendants or of his own employer, as determining, where the status of master and servant lay in the particular instance, held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. <§=>2S4.]
    3. Master and Servant @=>276 — Lending Servant — Injury — Direction and Control-Evidence.
    In an action by the servant of a machine company to recover for personal injury sustained while repairing a boiler at defendants’ ice plant, where he had been sent by his employer to make such repairs, the issue being whether plaintiff was, for the time being, defendants’ servant so as to bar his recovery on the ground that his injury was caused by the negligence of a fellow servant, evidence held sufficient to support the finding of the jury that in prosecuting such work plaintiff remained subject to the direction and control of his employer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. @=>276.]
    4. Master and Servant <§=>297 — Contributory Negligence — Findings.
    Where in such action the jury found that plaintiff failed to exercise care for his own safety in doing the work about the boiler, and in the following finding found that such failure did not proximately cause or contribute to his injury, the latter finding was not unwarranted on the ground that, if he was guilty of negligence, as found by the preceding finding, such negligence was necessarily a proximate cause, since there was' nothing to indicate what act the jury had in mind when it made such general finding that plaintiff was guilty of negligence.
    [Ed. Note. — For other oases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. @=>297.]
    5. Master and Servant <§=>297 — General Finding of Contributory Negligence-Contradicting Adverse Findings on Specific Acts Pleaded.
    Where defendants pleaded specific acts of contributory negligence in such action, and the jury found that plaintiff was not guilty thereof, the general finding that plaintiff did not exercise care for his own safety in and about the work was immaterial, since, though plaintiff may_ have been negligent in some respect not specified, a defense could not be predicated upon an act of contributory negligence not pleaded.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-119S; Dee. Dig. @=>297.]
    6. Partnership <§=>30 — Lessor and Lessee of Ice Plant — Injury to Workman — Sharing Profits — Liability.
    Where defendant lessors had leased an ice plant to defendant operators under an agreement that all net profits in excess of a certain sum should be shared between the parties, such lessors were partners of the lessees, and liable as such to a workman injured through lessees’ negligence while repairing a boiler in the plant.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 38-48; Dec. Dig. @=>30.]
    Appeal from District Court, El Paso County; P. ft. Price, Judge.
    Action by H. E. Brown against W. W. Fink and others to recover for personal injuries. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Wallace & Gardner, Peyton F. Edwards, J. G. McGrady, and ft. E. Thomason, all of El Paso, for appellants. F. G. Morris and Chas. Owen, both of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HIGGINS, J.

This is a suit by Brown against Fink & Smith, a copartnership, and the El Paso Ice & Refrigerator Company, a corporation, to recover damages arising from personal injury. Recovery against said corporation waá sought upon the theory that it was a partner of Fink & Smith.

On March. 4, 1910, the defendants entered into a written contract between themselves, whereby said corporation leased to Fink & Smith an ice manufactory for a period of three years at an annual rental of $10,000 to be paid by the lessees, who also agreed to pay the corporate franchise tax and one-half the state and county taxes. The contract contained this further stipulation, viz.:

“In consideration that the lessor will pay one-half of the said taxes, it is agreed that, should the lessee make a net profit of more than ten thousand ($10,000.00) dollars annually during any one or more years of this lease, the surplus above ten thousand ($10,000.00) dollars shah be divided equally between the lessor and the lessee. And this'is to be done whether the profit comes from the operation of the plant or from closing it down and not operating it.”

At the time of plaintiff’s injury the ice plant was being operated by Fink & Smith 'under said contract. The defendants Fink & Smith requested the Darbyshire-Harvie Iron & Machine Company to repair a boiler on the premises of defendants by removing damaged flues therefrom and placing therein new flues. Plaintiff was a boiler maker in the employment of the Darbyshire-Harvie Company, and was directed by them to make such repairs on a boiler to be shown him by Fink & Smith. Plaintiff went upon said premises for the purpose of making such repairs, and said defendants furnished him a helper in his work. Plaintiff entered the boiler and commenced the work of removing the damaged flues and replacing same with new flues. The boiler in which plaintiff was working was connected by a drainpipe with another boiler which was in use and termed a “live” boiler. Plaintiff had opened the drain cock of the boiler in which he was working and left same open. While he was so situated, an employé of Fink & Smith discharged hot water and steam into the boiler, whereby plaintiff received the injury of which he complains. This hot water and steam was discharged from the “live” boiler through the drainpipe connecting the boilers. The allegations of plaintiff’s petition present a state of facts showing that he was doing the work upon the boiler as an employs of the Darby-shire-Harvie Company, and that said company was engaged in making the repairs upon said boiler as an independent contractor.

The defendants answered by pleas of assumed risk and contributory negligence. The allegations of the petition that plaintiff was the servant of the Darbyshire-Harvie Company, who was repairing the boiler as an independent contractor, were denied, and facts were averred showing that plaintiff became an employs of defendants and that his injuries were due to the negligence of a fellow servant in discharging the steam and hot water into the boiler. The El Paso Ice & Refrigerator Company also defended upon the ground that it was not a partner of Fink & ■ Smith. Other issues raised by the defendants’ pleadings are not pertinent to a consideration of the questions here presented.

The cause was tried before a jury and submitted upon special issues. In response to the issues submitted facts were found as follows: Saylor; the engineer of Fink & Smith, applied to Darbyshire-Harvie Iron & Machine Company to send a boiler maker to the ice plant to perform the specific job of putting flues in a boiler. The company sent Brown to put said flues in defendant’s boiler at the ice plant. At the time of his injury Brown was engaged in the work of putting in flues in said boiler, or in work necessarily incident thereto. In the performance of the work Brown was subject to the supervision and direction of the Darbyshire-Harvie Company. An employé of defendant, Fink & Smith, in blowing in steam in the boiler where plaintiff was at work, under all the facts and circumstances, failed to exercise ordinary care for Brown’s safety, and his injuries were proximately caused by said failure to exercise ordinary care. While Brown was engaged in removing and replacing the flues in the boiler for the El Paso Ice & Refrigerator Company, he was acting in furtherance of the business of the Darby-shire-Harvie Company. Fink & Smith’s employes in charge of the plant and boilers did not exercise control over the manner and way in which Brown did his work in and about removing and replacing the flues in the boiler in question. Plaintiff, Brown, on the morning prior to his accident opened the drain cock and left the same open. Brown knew, or by the exercise of ordinary care incident to the work in which he was engaged could have known, that the drainpipe connecting into the boiler where he was working and through which the steam and hot water flowed that caused his injury was connected with the other live boiler. He was not guilty of negligence in going to work in the boiler where he received his injuries without first closing the drainpipe or seeing that same was closed. He was not guilty of negligence in entering the boiler and going to work on the morning of the date of his injury in not closing or seeing that the blow-off pipe in the boiler was closed. Brown was damaged in the sum of $6,000 by his injuries. Other findings by the jury will be hereinafter stated.

Upon the findings, judgment was rendered in favor of Brown against all defendants.

Appellee seeks to hold the defendants liable for his injuries under the rules applicable to one-invited on the premises of another to do something for the owner of such premises. Appellants assert that the evidence discloses he was their servant and was injured by the negligence of a fellow servant, if negligence there was. It was not denied by appellee that he was the fellow servant of the fireman who discharged the steam into the boiler where he was working, if he, Brown, was a servant of defendants. But he denies that he was their servant and says he occupied the position of a servant of an independent contractor, namely, Darbyshire-Harvie Iron & Machine Company.

Appellants direct our attention to a number of eases in this and other states where the rule has been announced that, where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be considered the servant of the one to whom he is lent, although he remains the general servant of the person who lent him; and, if the servant receives an injury in such employment from the negligence of a servant of the person to whom he is lent, he cannot recover therefor; the test to determine the status of the employs being whether in the particular service he is engaged to perform he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is hired or lent. Judson et al. v. Tucker, 156 S. W. 225; Edmundson v. Coca-Cola Co., 150 S. W. 273; Walker v. Elec. Ry. Co., 118 S. W. 554; Wallace v. Southern, etc., 91 Tex. 18, 40 S. W. 399; Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328; Brady v. Railway Co., 114 Fed. 100, 52 C. C. A. 48, 57 L. R. A. 712; 26 Cyc. 1285.

But the jury in this ease has found-that in the performance of his task Brown was subject to -the supervision and direction of the Darbyshire-Harvie Company; and Fink & Smith’s' employés in charge of the plant and boilers did not exercise control over the manner and way in which Brown did his work in and about removing and replacing the flues in the boiler in question. The question whether the relation of master and servant exists is one of fact for the jury, or such tribunal as may be, in the given instance, intrusted with the function of deciding such issue, where the evidence as to the material circumstances is conflicting. So, if there be evidence to support the findings just noted, Brown, in view of the test laid down in the authorities to which we have referred, could not be considered the servant of defendants.

Nold, an official of the Darbyshire-Harvie Company, in substance, testified that-:

He had a notation on his books of an order given by defendants for a boiler maker to go over to their place and work. His company was not to furnish any material at all, and did not furnish any flues or material. Defendants were to have the material on the ground. The man was to put in the flues. He was to go to whoever was in charge of the boiler to get instructions. The man in charge of the boiler would show him the place to work and the flues they wanted taken out. “We had no contract to do the work. We sent them a man to do the job. Boaning them a man or hiring them a man does not exactly express it. We furnished no helper. They were to furnish a helper and the material. ■ We charged them 90 cents an hour.' We had no understanding beforehand. We were to get what was customary for the man we sent over. They could have laid him off — sent him back to our shop any time they wanted to. They had no autnority to discharge him. They could discontinue the job any time they saw fit, whether the work was completed or not completed. If he put the work in one way, and they did not like it, they could have stopped him. He was to do the job the way they wanted it done. He was under our foreman, but our foreman was not there. Our foreman may have gone over there part of the time, but was not there all of the time. I don’t know that the foreman was there at all. We would allow him to work there until he finished the work according to the way defendants wanted it done. We would expect him to do the work any way they wanted it done. If it came to a question of whether he should receive orders from one or the other, our foreman was the man to whom he would look for authority. When Brown was over there, he was doing this particular piece of work according to the direction of the men who were paying us to have it done that way. I do not think they gave him any directions about doing the work. If it came to a question of authority to direct how he should do it, he would have to come to our foreman. If he was told to put a particular flue in there, he would, theoretically, have to come back to our foreman to find out whether he would do it or not. If he was directed by the foreman of the ice factory to put in the flue, he would not have to come and find out of our foreman whether he should do that or not, because he was sent to do that work. If the question arose as to whether he was doing it properly or not, he would have to take orders from our foreman. If we sent a man over there to work, he is, theoretically, under the orders of our foreman and not theirs.”

Saylor, the chief engineer of defendants, testified substantially as follows:

That he was chief engineer of defendants and in charge of the engines and operation of the steam engines and the work upon them; that Brown was working by the hour under his direction; that he had authority to take Brown off the boiler and send him back to the Darby-shire-Harvie Company at any time. “We were paying the machine company 96 cents an hour for his services. He was loaned to defendants for that work. When I called the machine company to send us a boiler maker, I did not tell them what I wanted of him.”

Plaintiff, Brown, testified, in substance, to the following effect:

“I went to the plant of defendants by order of Mr. Black, the boiler maker foreman for Darbyshire-Harvie Company. 1-Ie directed me to put in flues over there in a boiler. After receiving that instruction, I went to defendant’s plant and reported at the office that I was a boiler maker and sent over there to do the work of putting in flues. They told me to go out and see Mr. Saylor, the chief engineer. 1 went out and saw Saylor, who said: ‘Go and see Kindred, the assistant engineer; he will show yon what flues he wants put in, and also show you the flues.’ Mr. Kindred showed me the flues, and I proceeded to cut out the old flues and put in the new ones. No one was there directing me how to do the work. Engineers are not skilled or competent to direct that work or work such as I was doing. Mr. Saylor was not attempting to direct me. There was no communication at all between me and Mr. Saylor in regard to what I was doing after I got there to work. There was none between me and Mr. Kindred as to how I was doing the work, or no one else on the premises. The main steam pipe in top was leaking. When I first went there, I reported to some officials of the ice company. I first started to cut out the flues. The assistant engineer, Kindred, told me where to go at that time. It was my instructions and I went there to take out flues and put in some flues. I was all day cutting them out. The Mexican helped me the first day. The second day I was putting in flues. I got the flues from the ice company. I took them out of the stock there. Mr. Kindred told me where to find them. He showed me the ones to take out. I did not do that under his instruction. He told me where they were, and I went and put them in. He says: ‘Here are the flues.’ I went and got them. Then I took them and the Mexican and myself put them in. I was controlling my Mexican helper. I don’t know that they could have taken me away any time they got ready. If they had come there and told me to get out, I suppose I would have gotten out and gone back and reported to Darbyshire-Harvie Company. The first work was cutting out the flues; then the next work was putting in the flues. I did not know which flues I was to work on or cut out until I got there and the assistant engineer pointed them out. When he pointed them out I went to work on them. I only cut out those he showed me and said they wanted cut out. When I got those cut out, he went and got the flues furnished by them and put them in.”

We think the testimony of Nold and plaintiff sufficient to support the finding of the jury upon the issue of direction and control of Brown in the manner of doing the work. On this point it is important to understand what is meant by control and direction. It does not mean merely pointing out the object to be worked upon or the material to be used. It means supervision as to the proper doing of the work in a skillful and workmanlike manner. In Walker v. Railway Co., 103 Tex. 259, 126 S. W. 262, Judge Gaines said:

“That the work was to be done and how to do it is, in our opinion, a very different thing from directing the work as it was done.”

In Gayle v. Car & Foundry Co., 177 Mo. 427, 75 S. W. 987, it was held that the retention of a general supervision over the place where work is done and of the right to inspect various pieces of work to see if they conform to contract does not render the relations between the parties that of master and servant, rather than of independent contractors, so as to make the. fellow-servant rule applicable.

A Canadian case is thus noted and summarized by Mr. Labatt in his work on Master & Servant (2d Ed.) vol. 1, p. 208:

“A verdict finding that the servant of a plumber who was sent to assist the employés of a gas" company in making connections between their main and the pipes leading to adjacent buildings was not their fellow servant will not be set aside, where it appears that he was paid for his work by the plumber, and was in no wise subject to the directions of the company, except in so far as their agents pointed out to him the place where the connections were to be made. St. John Gaslight Co. v. Hatfield (1894) 23 Can. S. C. 164, affirming (1893) 32 N. B. 100.”

In Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922, Chief Justice Holmes lays down the general principle that the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does make him that person’s servant, and thus discusses its applicability to the circumstances before the court:

“The contract between the defendant and the electric light company was not stated in terms, but it fairly could have been found to have been an ordinary contract by the defendant to do his regular business by his servants in the common way. In all probability it was nothing more. Of course, in such cases the party who employs the contractor indicates the work to be done, and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employs is his act.”

In volume 1, § 25, Labatt, Master & Servant (2d Ed.), it is "said:

“It is well settled that, where one person is performing work in which another is beneficially interested, the latter may exercise over the former a certain measure of control for a definite and restricted purpose, without incurring the responsibilities, or acquiring the immunities, of a master, with respect to the person controlled.”

In Stewart v. California Imp. Co., 131 Cal. 125, 63 Pac. 177, 52 L. R. A. 205, the court said:

“The company was to furnish the roller and engineer and fuel for so much a day, and the superintendent of streets was to control the movements of the roller by directing as to what portion of the street should be rolled, and when sufficiently rolled. Neither the superintendent of streets nor his foreman presumed to direct the engineer in reference to the management of the engine in regard to the pressure of the steam, or how or when it should 'be applied or shut off, or in reference to the escaping of steam through the safety valve. No one not an engineer, or having some knowledge or experience in reference to the management of an engine, would assume to direct the engineer in reference to such matters. As he was the one to know, and not the superintendent of streets or his foreman, whether there was danger in the escaping of steam through the safety valve, the duty devolved upon him to give people warning in case there was such danger; and for injury resulting from negligence in this respect he, and the owner of the engine, who put him in charge of the same, would be responsible.”

This last quotation is peculiarly applicable to the case at bar. Here, although Say-lor, a mere engineer, claimed skill sufficient to direct a boiler maker in the details of his work, though no specific direction is testified to, yet Brown testified that an engineer had no training by reason of his vocation in boiler making, and that Saylor had no such knowledge as would have enabled him to supervise him in the details of his work, and that Saylor did not, in fact, assume to do so. He merely pointed out the place to work and the material to be used. The jury was thus waranted in deducing from the testimony of Nold and Brown that Brown was not subject to the direction and control of Saylor as to the manner in which the work of putting out and putting in the new flues was to be done; that such authority as Saylor may have possessed did not go to this extent.

In this connection it may be noted the jury also found that Saylor, the engineer of Fink & Smith, applied to the Darbyshire-Harvie Company to send a boiler maker to the ice plant to perform the specific job of putting flues in a boiler; that Brown was sent to put said flues in the boiler, and that, while he was engaged in removing and replacing the flues in the boiler, he was acting in the furtherance of the business of said Darbyshire-Harvie Company. In Walker v. Railway Co., 118 S. W. 554, and in the same case in the Supreme Court, 103 Tex. 259, 126 S. W. 262, where the question arose as to who was the plaintiff’s master, stress was laid upon whether the work undertaken by the employs was in furtherance of his master’s regular business, or was done aside from and for the benefit of the person for whom he was sent to work. Whether the employs was sent to do a particular job or to do any work the party he was lent to might put him to do was also regarded as of importance by the majority of the Supreme Court. But it is not necessary for us to rest our decision upon these last-noted findings, as, in our judgment, the findings upon the issue of direction and control are authorized and supported by the evidence. This being the case, it is unnecessary to pass upon the sufficiency of the evidence to support the finding that Brown, while engaged in his task, was acting in furtherance of the business of Darby-shire-Harvie Company.

The seventh finding was that Brown, in the performance of his work about and in the boiler, failed to exercise ordinary care for his own safety; the eighth finding was that such failure did not proximately cause or contribute to his injury. It is assigned as error that the eighth finding is unwarranted, because, if he was guilty of negligence, as was established by the seventh finding, such negligence was undoubtedly a proximate cause. In support of this position we are referred to Dowlen v. Texas Power Co., 174 S. W. 675; Culpepper v. Railway Co., 90 Tex. 627, 40 S. W. 386; Railway Co. v. Rowland, 90 Tex. 365, 38 S. W. 756. But here there is nothing to indicate what act the jury had in mind when it found the plaintiff was negligent of his own safety in the performance of his work. So it cannot be said that such negligence was undoubtedly a proximate cause of his injury, as was held in the cited cases. Furthermore, their inapplicability is apparent when we consider the issues raised by the pleadings and findings thereon. The specific act of contributory negligence pleaded was the act of plaintiff in opening and leaving open the drain cock or blow-off pipe connecting the live boiler and the one in which he was working. In response to issue 5A, it was found that Brown was not guilty of negligence in so doing; in response to issue SB, that such negligence, if any, on his part was not a proximate cause of his injury; in response to 7B, that he was not negligent in going to work in the boiler without first closing the drainpipe or seeing that same was closed; in response to 8A, that he was not negligent in entering the boiler and going to work without closing or seeing that the blow-off pipe in the boiler was closed. These latter findings are abundantly supported by the evidence. Adverse findings, amply supported by the evidence, being made with respect to the specific acts of contributory negligence pleaded, the general finding that Brown was negligent in the performance of his work is of no consequence. A defense could not be predicated upon an act of contributory negligence not pleaded. Brown may have been negligent in some such respect, and the jury .may have so believed, but facts not pleaded cannot form the basis of a judgment. Ginners, etc., v. Wiley & House, 147 S. W. 629, and eases there cited.

The only remaining question in the case relates to the issue of liability upon the part of the El Paso Ice & Refrigerator Company. Its liability, if any, rests upon the theory of a partnership between the parties, created by virtue of the clause in the lease contract whereby said company acquired an interest in any net profits made by Fink & Smith in excess of 810,000 annually. In a most able argument counsel for the company urge the view that this clause is insufficient to create a partnership relation when the parties had no intention of so doing, did not so consider themselves, and there was no holding out as such. There is high authority for their position, but we understand the rule in Texas to be established that as to creditors the partnership status is deduced as a matter of law from a contract between the parties to share in the profits of an enterprise, as profits, and not merely as compensation for his time or labor. Cothran v. Marmaduke & Brown, 60 Tex. 370; Kelley, etc., v. Masterson, 100 Tex. 38, 93 S. W. 427; Fouke v. Brengle, 51 S. W. 519; Dilley v. Abright, 19 Tex. Civ. App. 487, 48 S. W. 548. The case of Buzard v. Bank, 67 Tex. 83, 2 S. W. 54, 60 Am. Rep. 7, is not an exception to this rule.

If there is to be a departure from this rule, it is the province of the Supreme Court, and not of this court, to announce the same.

Affirmed.

On Rehearing.

In their motion for rehearing appellants criticize that portion of the opinion wherein it is stated:

“The specific act of contributory negligence pleaded was the act of plaintiff in opening and leaving open the drain cock or blow-off pipe connecting- the live boiler and the one in which he was working.”

It is insisted there is a general allegation of contributory negligence, and that there are specific allegations with respect to other acts of contributory negligence. We are referred to the third, fourth, sixth, and seventh paragraphs of the answer of Fink & Smith. The third and fourth paragraphs are not affirmative defenses, but specific denials of tbe allegations of the petition made in accordance with chapter 127, General Laws of Thirty-Third Legislature, and cannot properly be considered as presenting the affirmative defense of contributory negligence under general allegations. But, if so, such general allegations are controlled and limited by the specific allegations in subsequent portions of the answer.

Paragraph 6 purports to be a plea of assumed risk. Paragraph 7 presents the plea of contributory negligence, and we think it was correctly summarized in the quoted portion of the opinion. It may be that portions of paragraph 6 properly present issues of contributory negligence, rather than assumed risk, though, professedly, it relates to the latter. However this may be, the answers of the jury to the various issues submitted preclude the idea that defendants are entitled to judgment upon any issue of contributory negligence specifically pleaded. And, if the issues submitted to the jury do not cover all issues of negligence specifically pleaded, it will be presumed that the same were resolved against appellants by the court.

The motion for rehearing is overruled.
      <g=x>For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    TURNER et al. v. HENDERSON et al.
    (No. 5540.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1915.
    Rehearing Denied Feb. 16, 1916.)
    1. Cakeieks <&wkey;228 — Damages to Live Stock —SUFFICIENCY OF EVIDENCE — PABOL CON-TBACT.
    Evidence in an action for damages to a shipment of cattle held not to show that any parol contract of shipment was ever made.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;>228.]
    2. Cakeieks <&wkey;207 — Shipment of Live Stock —Bill of Lading — Effect.
    Where there was no contract for the shipment of live stock prior to the execution of the written contract signed by the shipper, the transportation of the live stock and the shipper under the contract constituted a valuable and sufficient consideration furnished by the carrier, rendering the contract binding upon the shipper.'
    [Ed. Note. — Eor other eases, see Carriers, Cent. Dig. §§ 129-239; Dee. Dig. <&wkey;>207.]
    3. Cakeieks &wkey;>218 — Damages to Live Stock —Notice—Reasonableness.
    A provision of a written contract for the shipment of live stock requiring written notice of loss or damage to the stock or delay in transporting it or decline in the market, etc., and the amount of damages claimed to be filed within 120 days thereafter with some traffic officer, station agent, or other convenient local agent of the carrier, in the absence of any showing that such notice could not have been given within such time, was a reasonable stipulation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. |§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;218.]
    4. Cakeieks <&wkey;228 — Damage to Live Stock —Defenses—Failuee to Notify of Loss-Evidence.
    Evidence in an action for damages to a shipment of cattle held to sustain the defense of the shipper’s breach of a stipulation in the written contract of shipment requiring notice of loss, etc., to be given within 120 days to some agent of the carrier, and declaring that failure to give such notice should bar a suit for damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. &wkey;22S.]
    Appeal from District Court, Coleman County ; John W. Goodwin, Judge.
    Action by U. Henderson and others against Avery Turner and another, receivers of the Ft. Worth & Rio Grande Railway Company, and the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff against the receivers and in favor of the Gulf, Colorado & Sante Fé Railway Company, and the receivers appeal.
    Affirmed as to Gulf, Colorado & Sante Fé Railway Company, and as to the receivers set aside, and judgment rendered for them.
    Andrews, Streetman, Burns & Logue, of Houston, and Lockett & Rowe, of Ft. Worth, for appellants. Critz & Woodward, of Coleman, for appellees.
   KEY, C. J.

U. Henderson, Will Dibrell, and H. Kingsbury brought this suit against the Gulf, Colorado & Santa Fé Railway company and the receivers of the Ft. Worth & Rio Grande Railway Company, and recovered a verdict and judgment for damages to a shipment of cattle from Menard, Tex., to Brownwood, Tex. No judgment was rendered against the Gulf, Colorado & Santa Fé Railway Company, and the receivers of the other company have appealed.

Appellants averred in their answer that the shipment was made under three written contracts, one between appellants and appel-lee Henderson, covering 219 head, another between appellants and appellee Kingsbury, covering 70 head, and the third between appellants and appellee Dibrell, covering 111 head of the cattle shipped; and appellants specially pleaded as a defense a stipulation in the contracts referred to, wherein appel-lees agreed, as a condition precedent to any right of action for loss or injury to the property shipped, or for delay in transporting same, or for decline in the market, to give notice in writing, setting out in detail a full statement of the losses, injuries, delay, and decline in the market for which damages are claimed, and the amount thereof within 120 days after the same shall have been occasioned, to some trafile officer, station agent, or other convenient local agent of the carrier. Appellants further alleged that such stipulation was, under the facts and circumstances of the case, a reasonable stipulation.

Replying to appellants’ answer, appellees denied that the written contracts pleaded by appellants were executed by appellees or either of them or by their authority. They further averred, in substance, that if they executed the contracts, they were without consideration and void, because of the fact that they were executed after appellants had received and accepted the cattle for shipment under a prior contract, that appellants demanded the signing of the contracts as a condition precedent to proceeding with the transportation of the cattle, and refused to transport same under the original contract, and that no additional consideration was received or paid for the execution of such written contracts. These allegations were specifically denied by appellants, as were all the other material allegations contained in appellees’ pleadings.

Without discussing in detail the various assignments of error presented in appellants’ brief, we announce our conclusions upon the merits of the appeal as follows:

The written contracts pleaded by appellants were introduced in evidence. The testimony shows that the stipulation in reference to notice was reasonable, and was not complied with, and fails to show any reason why the contracts are not valid and enforceable; and in support of these conclusions • we copy from the statement of facts the testimony given by appellees themselves:

“My name is Upton Henderson. I am one of the plaintiffs in this case. I live at Coleman, Coleman county, Tex. I and the other plaintiffs delivered 419 head of cattle to Avery Turner and G. H. Schleyer, receivers of the Et. Worth & Rio Grande Railway Company at Menard, Tex., 400 cows and 19 calves. They were put in the stock pens at Menard late Saturday afternoon, and loaded the next morning, Sunday morning, the 5th day of October, 1913. I had a conversation with Mr. Lang or some one Sunday morning. I think that was him; some one in the office. I don’t know whether it was their agent here that was in the office. X had the conversation there with the man that was representing the railway company Sunday morning at the Frisco office at Menard. The man I was talking to was in charge of the office there. I told him how I wanted the cattle billed. I told him to Santa Anna. He said: ‘All right.’ The cattle were then in the stock pens. I was in his presence when I asked him if the cars were ready. I took the cattle and put them in the pens, and told him that I wanted the cattle billed. I went up to the stock pens, walked on up there; it was about three-quarters of a mile; and I think they were up there to load the cattle. The train X think was there before I got there, or very shortly afterwards, and started to load. They loaded them. It was the Ft. Worth & Rio Grande, the railroad from Menardville to Brownwood. It was pretty early in the morning Sunday, I suppose, maybe, 7:30, when I went up to the stock pens. It was not raining; both Sunday and Monday were sunshine weather. It was not raining when we got to Brownwood. After the cattle were loaded, I think we all rode down on the cars to the station — about three-quarters of a mile, I guess, a good long distance. At that time neither myself nor any of these plaintiffs had signed any written documents with reference to this shipment. None had been presented to me for signing by the company at that time. The movement of the cattle from the stock pens to the depot was in the direction of Brownwood, in the direction of Santa Anna by rail. As to the condition of the cars, the floors, the way they were bedded, as to whether they were slick, wet or dry, I only examined the last two ears prior to loading, and I immediately went to look at the one into which they were fixing to load, and I says: ‘You can’t load into that car; its full of water.’ I spoke to the man loading the cattle. He said: ‘They are all that way.’ They were pretty near all that way. The water was standing in puddles in places. One place three or four feet square looked like two inches deep in the car. I looked at the rest of them there, and they were standing in mud and slush, all of them. There were 11 cars. They had been bedded prior to the time I arrived there that morning. They remained in that condition all the way to Santa Anna. I accompanied these cattle from Menard to Santa Anna. One of those cattle was injured in loading there at Menard. One was injured at Menard in putting her in the chute to the car, and as she was being loaded her hind legs dropped in between a part of the chute and the platform at the stock pens, but she got in after they helped her up, but she was hurt in the hips, and some of the other cows run over her, but there was only one hurt there. As to the condition of the cattle when they arrived at Santa Anna, they arrived 4 dead, or 5. One we could not get up, and afterwards died, and several head more of them were badly bruised up. There were 4 dead, and 1 aft-erwards ; we could not get it up, and I understand that it died afterwards. O, yes, sir; there was a market value for those cattle, those that died and those that were injured or bruised at Santa Anna at the time of the delivery. I think I was acquainted with the market value at the time of delivery. As to my experience in selling and buying cattle, I buy and sell quite a good deal, a bunch or two every year. I deal in cattle, raise them, and sell them. Right around $50 would have been the reasonable market value of those cattle that were killed and the one that I understand afterwards died, if delivered at Santa Anna alive and without any injuries or negligence on the part of the defendants — $50 a head. If one of these was a calf, then one of them about $18 or $20. Some of the other cattle that were delivered at Santa Anna were delivered in an injured condition. Some of them had rubbed against the cars and were skinned up. Some were skinned on the tail bones and had rubbed against the cars. As to whether the cars were handled so that they were jostled about or run smoothly and easily, well, the roadbed was pretty rough, and they had a good deal of switching along the road. I don’t know what was done at Brownwood. We got off and went to supper, and they was transferred from the Frisco to the Santa Fé while we were gone to supper, and when we got back they were already hooked onto the Santa Fé train that was going to bring us out. As to how many of all these remaining 410 head, or 411 head, I believe it is, 414 head, of cattle were injured, well, so far as being injured goes, there was only 4 or 5 that we saw that morning that could hardly travel. I quit the cattle after the delivery there. The other two plaintiffs took the cattle home with them, and I came on to Coleman. The freight on those cattle was paid to the Santa Fé at Santa Anna after our arrival there. I did not pay any freight to the receivers and their agents at Menard. As to whether the cattle were transported to Santa Anna in the same cars in which they were loaded at Menard, we was away from the cattle anywhere from 35 minutes to an hour at Brown-wood, but they looked like the same cars and had the same numbers and the same name that tliey had when we got there. They could not have unloaded them; that would have been a physical impossibility, except one car at Brady; we unloaded one car there. I told the conductor that we ought to unload all of them and put them in cars that were bedded, and he said that would keep us there until Tuesday. Brady is on the Ft. Worth & Rio Grande Railway, on the road between Menard and Brownwood, and the same railroad that was operated by the defendants to whom I delivered the cows. I think that the correct number of the cattle was 419 head, 400 stock cattle and 19 calves. I was supposed to own 250, or five-eighths interest in them. I owned 250 head myself, Mr. Kings-bury owned 50 head. As to whether Mr. Dibrell owned the remaining 119 head, well, the cattle was not bought exactly that way. Each man- was to get the calves that went with the mother cow when they were divided. The the division would be 150 and 250. I bought them for so much per head,, with the calves thrown in, and I supposed that we would divide them that way. We had not discussed that part of it at the time, but it was the way they were divided. I bought the cattle in Menard county. They were range cattle. You ask if they were wild cattle. I answer, about like ordinary range cattle. Ordinary range cattle are wilder than cattle that do not run on the range. I don’t think they are any more restless when confined in the cars than ordinary cattle. You ask, ‘Don’t these range cattle, when confined in a small pen or closed cars, don’t they run over each other and hook and fight ■each other?’ and I answer, not much, not more than any other cattle when put in a pen. Yes; I owned 250 head of those cattle. Mr. Dibrell owned 150 head, and Mi-. Kingsbury owned the balance, except the calves, which go with the cows to which they belong. As to whether I had a conversation with Mr. Lang at the stock pens or at the depot, I may have had a second conversation at the stock pens. I had one at the depot before I went to the stock pens. The stock pens at Menard are about three-quarters of a mile from the depot, or something like that.
“We came on down there to the depot and .signed our contract. As to whether I ship a great deal of cattle from Menard, I think X have had three shipments out of Menard. During the time I have shipped cattle from there I have never failed to sign a contract at the depot. The other shipments were previous to this shipment, one of them, and one since. You ask me -whether I went ahead and loaded my cattle and then signed the contract each time, and I answer, yes, sir; signed my contract; yes, sir. I executed my contract at the depot at Menard. It is a fact that I loaded my stock there at the stock pens and pulled the train up to the depot, and then went in and executed the contracts. You ask me during the conversation I had with Mr. Lang didn’t I state to him that I wanted three separate contracts, that I wanted one two-carload lot to Mr. IQngs-bury, three-carload lot in the name of Mr. Dibrell, and the others in my name, and I answer, yes, sir. As to whether it is a fact that I stated to Mr. Lang that the purpose for which I wanted them billed that way was that X wanted the cattle looked after, and wanted transportation for the caretakers, I guess so; I might have done it; I don’t remember. As to whether my recollection is that I had it done that way, I answer that I had the cattle billed that way. As to whether I have shipped a great deal of cattle in the course of my career, I will say not a great deal.. I have shipped a good deal. I know that I cannot secure transportation for my caretakers unless I sign a written contract. That was my experience. Therefore I desired that the three separate -contracts should be made that the proper transportation could be given to the caretakers. (Mr. Rowe here exhibits to the witness the contract of shipment. Witness is asked whether he signed the contract shown him, and he answered:) I think I signed that. This here looks like my signature. I signed something like that. I am familiar with the signature of Mr. ICings-bury. I think that (indicating signature to the contract exhibited to him) is the signature of Mr. Kingsbury. I am tolerably well familiar with the signature of Mr. Will Dibrell. That (indicating signature to contract exhibited to him) is the signature of Mr. Dibrell.
“I knew the name of the agent at Menard for the receivers of the Ft. Worth & Rio Grande Railway Company. His name was Mr. Lang. I. think I met him on that trip. I have known him ever since. I don’t know who was the agent of the receivers of the Ft. Worth & Rio Grande Railway at Brownwood, Tex. I don’t think I know Mr. Grizzard there. I know they have an agent there. I also know that the Gulf, Colorado & Santa Fé Railway Company has an agent at Brownwood. I did not know his name. At the time of this shipment, at the time this shipment arrived at Santa Anna, Mr. Brown was agent of the Gulf, Colorado & Santa Fé at Santa Anna. I do not know how long I have known him. I might say four or five, maybe seven or eight, years. I cannot recall the time that I met him. I suppose I have known him ever since he has been there. So far as I know, he is there now. He was there the last time I saw him. I do not know whether I know any of the general officers of the Gulf, Colorado & Santa Fé Railway Company. I don’t think I know the names of any of the officers of the Gulf, Colorado & Santa Fé Railway Company residing at Galveston, Tex. I know Mr. Allen, their live stock agent. I do not know Mr. Pettibone. As to whether I know Mr. Dickinson, the live stock agent, I do if he lives at Ft. Worth. I am not acquainted with any of the general officers of the Ft. Worth & Rio Grande Railway Company or the receivers. I do not know the president. I know Ed Tillman, the live stock agent of the receivers. I think he is located at Ft. Worth.
“I filed my claim for damages with Mr. Dalton, the agent at Coleman. I spell it D-a-l-t-o-n. That was on March 18, 1914. I had made no written claim of my damages to any one previous to that time — not to any one. That was the only claim with reference to this particular shipment of cattle that I filed. As to whether it is a fact that I said the market value of the cattle that were killed was around $50, and that in my pleading I say that I paid $42.50 for them, we bought them when it was dry, and it rained, and they would be worth more. I think they would be $7.50 higher when they were shipped than when we bought them. As to whether I got the market that day at Santa Anna, we could sell them there. It was higher there. As to whether I got the market from Santa Anna that morning, I don’t know that there was any market there. As to whether I got any market quotations at Santa Anna, I don’t think they make any chalk marks on a blackboard. As to whether any one telephoning me that day and told me the market value of that cattle, grade, etc., on that day in Santa Anna, I talked to several the day I arrived at Santa Anna with the shipment. The statement as to the general market value of cattle on that day of that kind and grade was around $50. I mean to ‘say that $42.50 was not the market value of those cattle; they were worth more money. You ask, ‘As a matter of fact, you mean to state to the jury, don’t you, that there was not any regular cattle market at Santa Anna where cattle are bought and sold?’ and I answex, well, there are no pens there like the pens at Ft. Worth, no pens in which cattle are 'bought and sold daily; no, sir.
“In reference to tlie time I told Mr. Lang how I wanted the cattle billed out, and what I told him, I told him I wanted these cattle billed six cars to me, three to Dibrell, and two to Kingsbury. I don’t know whether ‘billed’ is the word I used on that occasion. We wanted to get a special out of Brownwood, but he said he could not get the special. I don’t know whether or not at the time I had this conversation there was anything said there by me or Mr. Lang in reference to the execution of a written contract on this Sunday morning. No, sir; I don’t remember about that. You ask me, ‘Do you remember whether or not there was anything said by you or Mr. Lang in reference to embodying in any contract the stipulation in reference to the plaintiff’s giving written notice of any claim for damages?’ and I answer, there was not. At the time I signed this written document shown to me here, alleged to be a contract, I did not read it. As to the circumstances under which I signed this written document, called a contract, we had been up at the pens loading the cattle and counting them. After they were loaded, why, we pulled on down to the station, the Frisco station in Menard. After the train was made up we rode on down to the station. We came back on the train, and went in to sign up. Mr. Lang said, ‘Sign here and here and here’ (indicating). As to how long it was from the time we got off the train there until we got in the station and signed them, just as fast as a bunch of men could work. The train was standing there waiting for us. As to what was said by the managers of the train in reference to shoving us up, Mr. Lang was working as fast as he could. The train was ready to go, they said. I don’t know whether anything was said in regard to matter of transportation, as to whether or not it was necessary to get transportation for parties with the cattle. You ask, ‘At the time you signed this document here shown to you by counsel for the defendant did you know the contents of it?’ and I answer, T knew I had to sign to get transportation.’ I did not know the wording of it. To the question, ‘Was that document that was shown to you by Mr. Rowe just now that you stated was your signature, was that delivered to you or kept by them?’ I answer that one was kept by them. I think that is a carbon copy. As to whether I know that is a carbon copy, that is my signature. No, sir; I don’t know whether I received a copy of that contract or not.
“I had several conversations with Mr. Dalton in reference to my claim for these injuries prior to the time I filed this claim with Mr. Dalton about filing it at Santa Anna or here, Coleman. The first conversation I had with him a day or two after we arrived here. Mr. Dalton was at that time agent for the Santa Fé. You ask me to state the substance of that conversation. That was about all there was to it. I spoke about it, and he said he could handle it here for me and that I would be here. I had a conversation with Mr. Tillman in Ft. Worth. He is the general live stock commissioner or commission agent for the Frisco, the Ft. Worth & Rio Grande Railway Company. As to any pri- or conversation with any of the receivers or representatives of the receivers, I don’t know whether I had a conversation with Mack-Alien or not. I tried to, but I don’t remember. I wanted to get them together. I don’t know the time of day, some time during the day. I signed the alleged contract that has been shown me here, I guess, about 10 or 10:30 in the morning, or maybe 11. We commenced to load the cattle, I guess, about 8:30. We put the cattle in the pens Saturday afternoon about dark the preceding day.
“You say, T don’t know that I understand you, Mr. Henderson; your first conversation with Mr. Dalton you spoke to him about this matter, and - your recollection is that he said that it would be best for you to file the claim with the agent here at Coleman; that it would be best to file the claim here,’ and I answer, I think that was the substance of it. Yes; he said for me to file the claim here; that he could take it up as well as the agent there.
“My interest in the cattle was 250 head, Mr. Dibrell 100, and Mr. Kingsbury 50. At the time of the shipment they had not been divided. I did not own all of any particular cows. I bought all of the cattle, and paid for them out of my own check, my individual cheek. At the time they were shipped they were still owned in the same way. Each of us had an undivided interest in the cattle, but I still had my check out for them. They had not been divided up to the time of the shipment. We all went down together to buy these cattle. I paid for all of the cattle myself; gave my check for them. There were no bills of sale executed.
“I think these written instruments, these three contracts, cover all the cattle, 419 head in all. As to whether I looked at the contracts and saw if they covered all, you will have to add them up and see. No, sir; I don’t suppose they covered the calves. I do not know whether the calves or cows were left out of my own knowledge. The contracts cover 400 head. We shipped 419 head. I don’t remember whether the ones left out were cows or calves. As to whether I told them that there were this many cattle, I told them how many cattle in the cars. I think somebody counted the number of them as they were loaded. I don’t know whether that was me or my agents or some of defendants’ agents. No, sir; I didn’t say how many cattle were in the cars, I was at the pens at the time of the loading. All the calves were young calves; I suppose all July calves. The calves were with the cows; they were late calves.”

Will Dibrell, plaintiff, testified as follows:

“My name is Will Dibrell, I am one of the plaintiffs in this case. I was present at the time the cattle in controversy were put in the stock pens and loaded at Menard. We put them in on Saturday night and loaded them on Sunday, October 4, 1913. Personally I had nothing to do with the making of the original agreement with reference to shipping these cattle and loading them. I accompanied the cattle from Menard to Brownwood, and from Brownwood to Santa Anna. I did not observe the condition of the floors of the cars in which the cattle were shipped until they were loaded. I observed them then. They were wet, and water was standing in places in them, a good deal in some of them, and not so much in others. There was water in some of them. They were slick and hard for cattle to stand up in, the jostling and jerking cars. As to how the cars were handled, the roadbed, of course, is rough. It had been raining, and all the way it was more or less jerky. I don’t think there was any more jerking than usually attends the running of railroad cars upon a rough roadbed. I was present when the cattle were unloaded at Santa Anna. They arrived there that night between 11 and 12 o’clock. I don’t know exactly the time. Some of the cattle were dead when we got there, 4 cows and a calf, I think, or 3 cows and a calf; I don’t remember. Am acquainted with the market value of cattle at Santa Anna at the time and place they arrived. As to what would have been the reasonable market value of the cattle that were killed at Santa Anna if they had been delivered there alive and without any injuries, they would have been worth around $50. As to whether I remember whether 4 or 5 of them were killed, one of them was not dead in the car, but died afterwards; that was included with the 4. One of them was a calf; $16 or $18 would have been the reasonable market value of that calf if delivered alive. I handled the cattle after they were unloaded and taken out of the pens. Some of the cattle that were not killed were injured; they were bruised; some of them had their horns knocked off, were stiff and drawed from standing in the wet cars; some of them were skinned; some of them had fallen on the floor and had been trampled on by other cattle. A good many of the cattle were injured besides the 4 or 5 that were killed. 1 didn’t • count them. Eight, or maybe 10, had their horns knocked off, and 25 or 30, maybe 50, were bruised some. All were injured more or less. Standing on that wet floor would make them sore and stiff. Yes; they were all injured in that respect to some extent. Having their horns knocked off and skinned, etc., would decrease the value.
“There was a market value for these cattle that day at Santa Anna at the time they arrived. I was acquainted with that market value. I have had experience buying cattle — a little. There is a local market there. I am certain I am acquainted with the market. You ask me to state to the jury what was the difference in the market value of those cattle at Santa Anna at the time and in the condition they were delivered and the condition they would have been delivered if delivered without these injuries, and I answer, $2.50 to $5 per head. The cattle had never been divided among the three plaintiffs at the time these cattle were delivered at Me-nard.
“At the time this written instrument here was signed I had not read it. It was signed at the same time Mr. Henderson signed the document of the same kind there (indicating). It was signed after they were loaded and pulled up to the freight office. I suppose the time of day was about 10:30 or 11. The cattle were put on the cars between 7:30 and 8 o’clock. As to the circumstances under which the contract was signed, I think the train was about ready to leave, and we walked into the office, and these documents were shoved out, and we signed them and went back and got on the train. We had no other conversation and agreement with Mr. Lang, or any one representing any of the defendants, in reference to signing any agreement of any kind. At the time I signed the document I did not know what it contained. Mr. Lang just shoved the papers out and said, ‘Sign here.’ I had no conversation with reference to it. I did not know when I signed that instrument that it contained a clause in there providing that as a condition precedent to any right of action for damages or loss of stock or decline in the market, etc., that you had to give notice of the damages and the statement of your claim within 120 days after the damages had been occasioned. The cattle shipped to Santa Anna were in the same cars in which they were loaded, except one car changed at Brady. They came over the Gulf, Colorado & Santa Eé from Brownwood to Santa Anna, and were delivered at Santa Anna by that railroad. Those cattle were range cattle. These cattle are not much more inclined to be restless or to horn or run over one another than other cattle. As to whether it is a fact that all range cattle, when confined in the narrow confines of a cattle car, will hook and fight each other and skin each other up, I say, not very much. Of course, they will a little, but they haven’t room to fight and hook very much. They will fight and hook each other some. The bed was so slick that they didn’t fight very much. I don’t say they didn’t, but I don’t think they did very much. They were 11 cars. I didn’t keep count of the cattle that were down. At every stop we got some cattle up. There was about one dead to each car; only one in each car dead. I don’t think there was two in any one car. I would not be sure, because I don’t remember. There were 11 cars in the shipment. I suppose all bedded the same.
“There was no market for cattle marked on the board at Santa Anna. There was no market like Ft. Worth and sales every day. It is a fact that the only transactions that occurred at Santa Anna, Tex., were transactions that occurred occasionally between individuals, who bought and sold to one another. We had no daily report of the market on cattle. No daily report came out in Santa Anna. They must have been 40 or 50 head injured, more or less, other than the ones killed. You ask me to describe the injuries. They were bruised and horns knocked off. Eight or 10 had their horns knocked off. The other cattle about which I will speak were bruised, I suppose by the cars. I expect there would be about 40 or 50 head that were bruised. Some were bruised more than others. The injuries would not be the same in evei’y case. I don’t know whether, when we reached Brownwood, the Santa Fé took the cars and put them on the transfer track. 1 went to supper when we pulled into Brownwood. I don’t remember how long I was on the way from there. The only stop was to take out a car at Bangs. I didn’t file any claim in writing until the 18th day of March, 1914. At that time it was filed with the Gulf, Colorado & Santa Fé Railway Company, Mr. Dalton here at Coleman.
“None of the cattle hooked their horns off pri- or to leaving. I have never known of cattle to hook their horns off out on the range. I never knew cows to hook one another so as to produce injuries like those out on the range. The balance of the cattle when they arrived at Santa Anna were sore and stiff. They were in good condition when delivered to the defendants at Menard. As to what, if anything, was the difference in the market value of these particular animals in the condition they were delivered to me at Santa Anna and without the bruises I have mentioned, and as to what, if anything, was the difference in these particular animals 1 have mentioned, with the conditions at the time of the delivery to me and the conditions without the bruises I have mentioned, I answer, $2.50 to $5 per head. As to whether I mean to tell the jury that these cattle that were stiff and sore were not injured more than those that were not stiff and sore, I didn’t say that; I mean the cattle that were not bruised up and that had their horns knocked off and were bruised and skinned up were damaged something like $5 per head.”

U. Henderson, recalled by plaintiffs, testified:

“I said I had a conversation with the claim agent for the Frisco receivers at the cattle convention, but it was at the fat stock show in the fall. I told Mr. Tillman about the shipment of the stock, and asked him if he could get Mr. McAllen and they get together and settle the matter without going to court. I told him what I thought the damages were. I told him what I thought the condition of the cattle was. He said to me to put it in would have plenty of of time to file a claim.”

H. Kingsbury, plaintiff, testified as follows:

“My name is H. Kingsbury. My initials are H. T. I am one of the plaintiffs in this ease. My given name is Howard. I was in Menard at the time this shipment of cattle in question was put in the pens, and at the time they were loaded in the cars. I accompanied the shipment from Menard to Brownwood, and from Brown-wood to Santa Anna. I was present at Santa Anna at the time they were unloaded. I did have something to do with taking them away from the pens, driving them away. I took some of them home with me; was acquainted with their subsequent condition after the time of the delivery at Santa Anna. They were in good condition when out in the pens of the receivers at Menard. None of them were bruised, skinned, or with horns knocked off or stiff when I took them there. They were loaded Sunday morning about 7 or 8 o’clock. I observed the condition of the cars into which these cattle were loaded — the condition of the floors. Water was standing on the floors, and the water was gathered around in puddles around in the cars. The weather was clear. It was not raining; the sun was shining, and wasn’t raining any at all. It did not rain on the way to Santa Anna. The cars were not bedded that day, so far as I know. They had been bedded when I got there. That was about 7 o’clock when they were bedded. The water was in there then. They had this water and mud in them. They were slick, and the cattle would slide on the floor. The cattle left the stock pens on the trains about 11 o’clock on the same day. They then went down to the depot, about somewhere close to a mile. We then went in and signed these documents. At the time I signed that document I did not know what it contained. I had had no previous conversation with the receivers or with any agent acting for them in reference to the matter of being required to give any notice within any specific time of a claim for damages, or anything of that character. At the time I signed that document I did not know it contained any provisions with reference to giving notice in writing of a claim for damages. As to whether I signed it at the time that Up. Henderson and Will Dibrell signed it, I think all signed it together. We all got off the train there about the depot. Mi\ Lang was standing there in the depot, and put this paper out and told us where to sign it. I don’t know whether he noticed the place where we signed. As to how much time we had between the time the contract was handed out there and the time we signed our names there, was done right now, a second or two. You ask, ‘Did you. at the time you put your signature to that see the other side, or did you just see that side?’ and I answer, I think I just saw that side. As to whether in that connection I can state to the jury how many paragraphs of that document, how many of these particular paragraphs are on the side that I saw, I saw 13, 14, 15, and 16. I did not read any of these paragraphs. With reference to the other side, containing paragraphs from 1 to 12, I had never seen that at the time I put my signature to it on the other side. I think the other parties signed their documents in my presence. I could not say, but I think they signed theirs under the same conditions. I did not know at the time I signed that document the contents of it, and did not know what was printed on it, and what it contained.
“At the time this shipment was made I was acquainted, and am now acquainted, with, the market value of these cattle at Santa Anna. Four of the cattle were dead, I think; 5 head dead, 4 in the cars. I believe 4 cows and a calf was dead; that is my recollection. I think around $50 would have been the reasonable market value, if they had lived; $15 or $16 would have been the reasonable market value of that calf, had it been delivered alive. The other cattle were injured. Some of them were skinned; others had been trampled on in the cars; others had their horns knocked off; some of them were injured internally. I had one that was down in the loins. I think 2 or 3 of the 50 head I took home from Santa Anna had their horns knocked off. I guess 10 or 12 head in all; 40 or 50 head were skinned and bruised. The rest of them that were not skinned and bruised and didn’t have their horns knocked off were sore and stiff. In my opinion, they were stiff from 'being down in the ears. In reference to these cattle that had their horns knocked off and bruised, and the difference in their market value at the time they were delivered in Santa Anna and their value if they had been delivered without these injuries, some of them were practically unsalable, at that time and others were injured, and one that I didn’t get home for a week. As to the difference in the market value of that one,' she was unsalable; had to lift her in the road; $18 or $20, I think. As to the others would be from $2.50 to $5, I think. I was talking about those that were stiff. In reference to the cattle that had their horns knocked off and were bruised, and the difference in the market value of these cattle at Santa Anna at the time of the delivery there by the railroad company and in that condition and the market value if they had been delivered without these injuries, I will say, from $12.50 to $15. In reference to the cattle that were stiff and not bruised, and the difference in their market value at Santa Anna at the time they were delivered by the railroad company in the condition in which they were delivered, and the value if they had 'been delivered there without this stiffness, I will say, $2.50 to $5 per head.
“I think we went out to the train immediately after signing these contracts at Menard. It may have been some minutes before we left after we got to the train; I think so; I think it was some time. Mr. Henderson, Mr. Dibrell, and I rode on the transportation furnished in the throe contracts executed by us. No; I filed no claim with anybody until March 18, 1914, when the other parties, my copartners in this transaction, filed theirs. That was the only one I filed with anybody. The cattle were shipped for the purpose of selling at any time; nothing was said about selling; they were put on the pasture. As to what was our intention in shipping these cattle for the purpose of selling them or for the purpose,of pasturing them, we took them to a pasture.’ We did not ship to Santa Anna for the purpose of selling them. We intended to graze the cattle after we got to Santa Anna.”

Appellee Henderson, being called as a witness for the Gulf, Colorado & Santa Fé Railway Company, testified:

“With reference to the conversation I had with the agent at Menard, as to whether I told the agent to get up the contract of so many of the cars in my name and so many in Dibrcll’s name, and so many in Kingsbury’s name, I told him to bill the cattle that way. I did not use the word ‘contract’ in that connection. As to why I answered ‘Yes’ to that question, I did not understand the question, if he asked me the question in that way. I did not at any time request Mr. Lang to get up written contract. I. know what the custom of railroads is with reference to issuing waybills on freight; issue waybills from one place to another.
“As to the cow that I testified about that fell through there as she was being loaded at Me-nard, she was injured at the pens, and she didn’t stand up well. I think she was in the car when we transferred at Brady. I am not sure of that, however. As to what would have been the reasonable difference in the market value of that cow at Santa Anna in the condition she was put in the pens there and immediately before she was loaded and immediately after she was loaded, $50.
“As to whether I answered this morning that I instructed Mr. Lang, the agent of the Frisco at Menard, to make out three sots of contracts, one for two cars in the name of Kingsbury, three cars in the name of Dibrell, and the balance in mine, I told him to bill them. I instructed him to bill them that way. I expected to sign a contract in order to get that transportation. I did not expect to sign a contract containing a stipulation providing for giving written notice to the company as a condition precedent to my suit for damages arising from that shipment. As to why I expected to sign a written'contract in order to get transportation, I have understood that was their rules, if you didn’t sign the contract, you have to buy a ticket to pay your fare. There had been no conversation between me and the agent with reference to that matter.”

We hold that the foregoing testimony fails to show that a parol contract of shipment was ever made, and therefore the written contract was binding. In Chicago, R. I. & T. Ry. Co. v. Halsell, 36 Tex. Civ. App. 522, 81 S. W. 1243, the Ft. Worth Court of Civil Appeals, speaking through Mr. Justice Stephens, said:

“In signing the contract of shipment, which limited the liability of appellant to damages occurring on its own line, appellee did but carry out the agreement which was implied when he had the previous oral negotiations with McCabe. He admitted very frankly, while testifying as a witness, that he expected to sign it when he talked with McCabe, ten days before the shipment. It was therefore but the consummation of this negotiation or contract with McCabe, and appellee was not in a position to avoid the binding force of the written contract, which took away none of the rights appellee would have had in the absence of any contract, oral or written. His own testimony made a clear case against him. The court therefore erred, as assigned, in giving the fifth paragraph of the charge. The case is not to be distinguished from that of Railway v. Wright [24 Tex. Civ. App. 291] 58 S. W. 847. The error was material, because the evidence undisputedly showed that the delay complained of occurred on the Choctaw, Oklahoma & Gulf Railroad; and it would be our duty to reverse, and render the judgment in favor of appellant, but for the joint liability alleged in the petition as a ground of recovery, in support of which some evidence was offered, though it may have been insufficient to prove such joint liability.”

The only witness who gave any testimony in this case as to anything that was said) prior to signing the written contracts was the appellee Henderson, and the substance of his testimony shows, as did the testimony of the appellee in the Halsell Case, that what occurred between him and appellant’s agent' was but an incomplete negotiation, intended to be consummated, as it subsequently was, by signing the written contracts relied upon by appellants. In the conversation referred to neither the number of cattle to be shipped and the freight charges to be paid nor any other details of the contract were mentioned; but Henderson merely told the agent that he wanted the cattle billed to Santa Anna, and testified, in substance, that he expected at the time he was talking to the agent to sign a written contract in order to get transportation. In other words, his testimony shows that he did not understand that the conversation between him and the agent constituted a verbal contract by which he had a right to have the cattle shipped, and that it was not his purpose in ‘the conversation referred to to make a binding contract, and that he expected to have to sign a written contract. This being the case, we hold that no contract of shipment was made prior to the execution of the written contracts. There being no prior contract for the transportation of the cattle, their transportation and the transportation of appellees under the written contract constituted a valuable and sufficient consideration furnished by appellants to render the contracts binding upon appellees. Railway Co. v. Wright, 24 Tex. Civ. App. 291, 58 S. W. 847; Railway Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 474; Railway Co. v. Gallagher, 70 S. W. 97. It is true the jury found that a prior oral contract of shipment was made, but, as that finding is without evidence to support it, we hold that the shipment was made under the written contracts.

The jury also found that the stipulation requiring notice was unreasonable, and that is the only remaining question which it is necessary to decide, and its decision is free from difficulty. The clear and undisputed proof coming from appellees themselves shows that they knew that appellant had station agents at Menard, where the cattle were shipped, and at Brownwood, where they were delivered to the connecting carrier; and they knew that the latter carrier had such agents at Brownwood and Santa Anna, the destination of the shipment. In fact, the proof shows that after the expiration of the 120 days allowed for giving written notice of the damages sustained appellees gave such notice to an agent of the Gulf, Colorado & Santa Fé Railway Company, the connecting carrier, at Coleman, Tex., which is the county seat of the county in which appellees reside; and no testimony was offered tending in .the slightest degree to show that such notice could not have been given within the time required by the contract. In view of these facts, we feel compelled to hold that the stipulation referred to was reasonable, and that the finding of the jury to the contrary is wholly without support in the testimony. Railway Co. v. Honea, 84 S. W. 267; Railway Co. v. Heittner, 42 Tex. Civ. App. 617, 94 S. W. 189; Railway Co. v. Mayes, 44 Tex. Civ. App. 31, 97 S. W. 318.

So our conclusion is that the undisputed proof sustains appellants’ defense of a breach by appellees of the stipulation in the contract referred to, which requires the notice therein stipulated, and declares that the failure to give such notice shall constitute a bar to any suit for damages.

In regard to the points upon which we rest our decision, the record shows that the case has been fully developed, and, there being no indication that appellees can make it any stronger upon those points, it becomes our duty to reverse the case and render judgment for appellants.

Therefore the judgment in favor of the Gulf, Colorado & Santa Fé Railway Company is affirmed, but the judgment for ap-pellees against appellants is set aside, and judgment is here rendered that appellees take nothing as against appellants, and that all the costs be taxed against appellees.

Affirmed in part, and in part reversed and rendered.

On motion for rehearing the court reversed and remanded the case without writing a further opinion. In other respects the motion for rehearing was overruled.
      <&n»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    STARK et al. v. ADAMS et al.
    (No. 34)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1915.
    Rehearing Denied Feb. 24, 1916.)
    1. Boundaries <&wkey;37 — Establishment—Sub-vets — Evidence.
    in an action of trespass to try title, the controlling question was whether the S. E. corner of the C. survey, made in 1846, admitted to be on the north line of the W. survey, made in 1840, was identical with the N. E. corner of the W. survey, as claimed by plaintiffs, or 132 varas west thereof, as claimed by defendants. There were no bearing trees or marks showing that the two corners were identical, and the surveyor who located both tracts stated in the field notes of the C. survey that the line of such survey running south “intersects the north line” of the W. survey “and corners on same.” The field notes showed the north line of the W. survey to be 1,344 varas from a certain point, while those of the C. survey showed the length of its south line to be 1,212 varas from that point, and called for the north line of the W. survey. No reason appeared why the north line of the W. survey as run by the original surveyor should have been short, since all other surveys near the same were junior surveys. Held,, that the N. E. corner of the W. survey should be fixed at a point 132 varas east of the S. E. corner of the 0. -survey, though there were no bearing trees on the N. E. corner of the W. survey as set out in the grant to same, and that hence a verdict for plaintiffs was unauthorized; the presumption being that the bearing trees were at the corner, as stated in the grant, at the time of the survey.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 184^-194; Dec. Dig. <&wkey;37.]
    2. BOUNDARIES «&wkey;l — Establishment — Objects Found on Ground — Calls—Grant.
    Lines and boundaries cannot be constructed with reference to objects that may be found on the ground as indicating the footsteps of the surveyor, where there are no calls in the grant for such objects.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. § 1; Dee. Dig. &wkey;>l.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by Emma G. Adams and others against W. H. Stark and others.
    From judgment for plaintiffs, defendants appeal. Reversed and rendered.
    Holland & Holland, of Orange, for appellants. Wightman & Hancock, of Newton, for appellees.

      Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is an action of trespass to try title brought by appellees against appellants to recover 160 acres undivided out of S. P. R. R. Co. survey No. 1, Newton county, Tex. Plaintiffs’ claim is founded solely on the ten-year statute of limitation, they claiming occupancy for the time required, but holding under no instrument of purchase, while appellants, by the admission.' of the parties, own the complete record title from the sovereignty. There was a jury trial, and upon the answers of the jury to the several questions submitted to them by the court a judgment was entered in appellees’ favor, and, after motion for new trial was overruled, the cause has been properly appealed.

Appellees own and have occupied continuously during the time they have claimed to occupy the land sued for a 50-acre tract of land in the northeast corner of the E. Williams survey. Their deed, under which they own this 50 acres, has during that time been of record, and describes their land as beginning at the northeast corner of the E. Williams, running thence south and west and north to the north line of the Williams, and thence east to the beginning. The deed describes the land as a part of the Williams survey. The land sued for lies immediately east of this land of appellees. The Williams survey was made in 1840. The Crooks survey, joining the Williams on the north, was made in 1846 by the same surveyor. The call for the north line of the Williams running from its northwest to its northeast corner, according to its field notes, reads:

“Thence west rich dark soil at 300 varas middle Cow creek 5 varas wide running south at 330 varas, high hammock land, timber, oak, holly, gum, pine and dogwood, at 630 varas, white oak timber at 865 varas red oak line tree with some XX timber pine, oak, dogwood, hickory at 1,344 varas, stake.”

The length of this north line of Williams is 1,344 varas. The Crooks survey, made by Lewis, who surveyed the Williams, establishes its southeast corner in the north line of the Williams, and makes bearing trees and runs west with the Williams north line, passing the northwest corner of the Williams at 1,212 varas, leaving thereby the northeast corner of the Williams 132 varas east of the Crooks southeast corner. This southeast corner of the Crooks survey seems to be well identified, and now on the ground. No other point in the two surveys is located by evidence of corners and bearing trees called for in the grant.

By his first assignment the appellant assails the action of the lower court in refusing the defendant’s requested peremptory instruction to return a verdict for the defendants, for the following reasons:

(a) The undisputed evidence shows all occupancy and possession of the plaintiff Emma G. Adams to have been in a portion of the Erasmus Williams survey, and to no portion of S. P. R. R. Co. section No. 1 sued for.

(b) The undisputed evidence shows plaintiffs’ possession proven in the case commenced in 1885, and continued until 1903, when she married one George Shankle, after which slie moved from said property, and the possession of same was from said period of 1903 to 1910 jointly in said plaintiff and Shankle, who asserted a joint claim to said property, and after said period, 1910, was exclusively in the plaintiffs’ possession, and the evidence fails to show any ten-year continuous occupancy and possession in the plaintiffs of the premises sued for.

(c) That the undisputed evidence showed that there is a conflict between S. P. R. R. Co. section No. 1 and Erasmus Williams; that the said Williams is a senior survey, and they claim there can be no hostile or adverse holding by an occupant holding under a recorded title of a senior survey of any portion of said junior survey, unless such possession extends beyond the conflict, and onto the junior survey, beyond the conflict, sufficient in character to amount to an ouster by an occupant of the true owner of the junior survey not in conflict with the senior.

While this is a case of trespass to try title, it is dependent primarily upon the true location of the east boundary line of the Erasmus Williams survey. The Williams survey was located in 1840, and the Samuel Crooks survey in 1846, by Lewis, who had previously^ located the Williams survey. A careful investigation of the testimony develops the fact that there are no bearing trees called for in the original grant to be found at the northeast corner of the Williams which are now standing. While some of the surveyors testified concerning the northeast corner of the said Williams, and as to its true location, they admitted, when tested, that the bearing trees called for in the Williams grant, together with the marks called for on said trees, were absent, and where they fixed the corner, or attempted to fix the same, the marks on the trees were admittedly made by a surveyor named Cox, in 1885, and none of the surveyors could, with certainty, show any mark or indication of the footsteps of the original surveyor made at the place where the appellants claim the northeast corner of said Williams survey to be or tending to show that it was at the point claimed by ap-pellees. The field notes of the Wililams survey are as follows:

“Surveyed for Erasmus Williams for 320 acres of land situated on Middle creek adjoining the N. B. of William S. Cahay 320-acre tract, being the quantity of land to which he is entitled by virtue of certificate No. Ill issued by the board of land commissioners for Jasper county, beginning 125 varas from the northeast corner of said Cahay survey, stake from which a sweet gum mark 6. W. bears N. 15 E. 5.6 varas and a sweet gum mark G. B. W. bears N. 25 W. 1.8 varas; thence north rich land black soil at 620 varas sweet gum line tree, at 900 varas, small branch brushy oak, pine land, dark soil at 1,344 varas, second corner, black rich land, a stake from a sweet gum mark G. W. bears S. 38 deg. 30' E. 5.6 varas sweet gum, mark G. W. bears N. 58 deg. 30' W. 19.6 varas; thence W. rich land dark soil at 300 varas middle of Cow creek 5 varas wide, runs S. at 330 varas, high hammock land, timber oak, holly, gum, pine and dogwood, at 630 varas, white oak timber at 865 varas, red oak line tree, land here some ir-roack timber pine, dogwood, hickory, etc., at 1,344 varas, stake from which a black gum G. W. bears S-. 16 W. 8.6 varas from black gum G. W. N. 63 E. 5.6 varas; thence S. land some broken dark soil at 300 varas, small branch runs E. 450 varas, level dark soil at 800 varas, pine line tree at 1,344 varas, a stake, fourth corner, from which a sweet gum marked G. W. and W. R. bears S. 84 deg. 30’ W. 11.6 varas, and a post oak marked G. W. and W. R. bears N. 70 E. 5 varas; thence E. good hammock land at 250 varas, a branch runs S. E. at 300 varas, rich land, dark soil, stiff land, at 985 varas, middle Cow creek or West creek 6 varas wide, runs S. at 1,344 varas, place of beginning; two-thirds of this survey is good land, the remg. land one-third second grade land, surveyed June 27, 1840. M. B. Lewis, Practical Surveyor.
“James King. Sidney Wortham, C. B.”

The field notes were filed in the land office July 7, 1840. Six years later Lewis, the surveyor, surveyed the Samuel Crooks land on the north, and the field notes of the Crooks were as follows:

“State of Texas, County of Jasper.
“Survey for William F. Cahay, assignee of Samuel Crooks, 320 acres of land situated on waters of Big Cow creek and adjoining the N. boundary of Erasmus Williams, being the quantity of land to which he is entitled by virtue of a land warrant No. 3933, issued by Secretary of War, dated Houston, 25th day of June, 1838, beginning at a post 260 varas west from the northwest corner of said Williams, from which a red oak mark X bears N. 67 deg. 30' E. 8 varas and a post oak marked X bears N. 48 W. 13.2 varas; thence N. at 1,200 varas post oak from which an ash marked X. bears S. 24 E. 5.2 varas and a red oak marked X bears N. 52 W. 7.8 varas; thence E. at 940 varas creek 6 varas wide runs S. at 147 varas, a post from which a post oak marked X bears N. 29 deg. 30' W. 2.4 varas, and a white oak marked X bears E. 4 varas; thence S. at 1,200 varas intersect the N. boundary of Erasmus Williams, a post from which a sweet gum marked X bears N. 10 E. 4.4 varas, and a post oak marked X bears N. 41 deg. 30' west 4.4 varas; thence W. with said line, passing over the creek and continuing at 1,212 varas, past Williams N. W. corner at 1,472 varas, place of beginning, surveyed March 26, 1846. _
_ “N. B. Lewis, Practical Surveyor.
“P. T. and Jonathan McGee, C. C.”

There are no marks or bearing trees to identify any of the corners of the Williams survey, so far as this record shows, that is, bearing trees called for in the original grant. The north line of the said Williams survey is well known, and the northeast corner of said Williams survey and the northwest corner of the same can be fixed with comparative certainty by the field notes of the Samuel Crooks, which lies immediately north and calls for the Williams north line. There is one corner of the Crooks, to wit, the southeast corner, on the north line of the Williams, which seems to be by the surveyors fully identified. This southeast comer of Crooks, according to the field notes of the Crooks, is 132 varas west from the northeast corner of the Williams. The southeast corner of the Crooks cannot be shown to be identical with the northeast corner of the Williams by any bearing trees or marks, and we are assured that Lewis, who located both tracts, would, if tlie corners had been identical, thus make the call. He says, on the contrary, that the line of the Crooks running south intersects the north line of the Williams and corners on same. (Italics ours.)

There is no discoverable reason why the north line of the Williams, as run by the original surveyor, should have been short. All the surveys near the same are junior surveys. S. P. R. R. Co. section No. 1 was located in 1885, 45 years after the Williams survey was located, and the S. P. R. R. Co. No. 1, in case it conflicts with the Williams, must yield to the lines called for in the Williams field notes. There seems to be an unanimity among the surveyors that the bearing trees, as called for at the northeast corner in the Williams grant, cannot now be found and identified, but one of the surveyors, McMahon, admits that there is an old line running north and south about 100 yards east from what they call the Crooks southeast corner.

The above statement brings us to the question as to whab are the rules of law that should be applied to the facts of this case in determining the issue of the boundary as to the Williams survey.

It seems to be well established that lines and boundaries cannot be constructed with reference to objects that may be found upon the ground as indicating the footsteps of the surveyor, when there are no calls in the grant for such objects.

Appellees claim, and there is some testimony that there is a line running from what is called the Crooks corner south, which line runs just in front of the doorstep of appellee Emma Adams. There is, however, testimony that this line was made by a surveyor named Cox, who surveyed the west line of the S. P. R. R. Co. section No. 1, and that the marks at the northeast corner of this line were placed on the trees by the said Cox. Whether or not this line is the west line of S. P. R. R. Co. section No. 1, or made in the subdivision of the various tracts on the Williams or otherwise there are no indications that this line was established by the surveyor who originally surveyed the E. Williams, and no marks or trees to indicate his footsteps. As said before, there is also testimony of a line about 100 yards further east that runs north and south, and which more nearly satisfies the call in the grant for the east line of the Williams.

In the case of Railway Co. v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781, the court said:

“The contention is that the footsteps of the surveyor who located the right of way could be found at places other than that called for in the descriptive matter contained in the deed, and to go to this point would extend the right of way some distance further north than 25 feet from the center of the track. The difficulty that lies in the way of supporting this contention is that the objects sought to be established by the appellant as found upon the ground, as indicating the boundaries of the right of way, according to its theory, are not called for in the field notes of the deed under which it holds; and in cases of this character the rule seems to be well established that lines and boundaries cannot be construed with reference to objects that may be found upon the ground as indicating the footsteps of the surveyor, when there are no calls in the grant for such objects” — citing Anderson v. Stamps, 19 Tex. 460; Ratliff v. Burleson [7 Tex. Civ. App. 621] 25 S. W. 983, 26 S. W. 1003.

In the case of Guill v. O’Brien, 121 S. W. 593, it is said:

“It is a settled rule of law in determining the true dividing line between surveys, as in this case, that if from a definite beginning point course and distance alone will with certainty locate and identify the line, as in this case, they will be held sufficient. Course and distance will control, then, under the surrounding and connecting circumstances. They are the most certain and reliable evidences of the true locality of the grant [citing Robinson v. Doss, 53 Tex. 506].
“Where no marked trees are on the ground identified by the evidence as those of the grant, as in this case, the true boundary must be ascertained by course and distance given in the Latent. Luckett v. Scruggs [73 Tex. 519] 11 S. W. 529.”

See, also, Keystone Mills Co. v. Peach River Dumber Co., 96 S. W. 64; Hamilton et al. v. Blackburn, 43 Tex. Civ. App. 153, 95 S. W. 1094; Brodbent v. Carper, 100 S. W. 183; Blackwell v. Coleman, 94 Tex. 216, 59 S. W. 530; Sloan v. King, 33 Tex. Civ. App. 537, 77 S. W. 48; Reast v. Donald, 84 Tex. 653, 19 S. W. 795; Coleman County v. Stewart, 65 S. W. 385; Hermann v. Thomas, 168 S. W. 1037.

The line appellees claim to be the east line of the Williams, neither from its age, from marks or bearing trees or circumstances, and especially from the fact that it does not run from the corner called for in the Williams grant as the northeast corner of same, cannot be and was not in any manner identified as having been made by the original surveyor of the Williams on the ground. If, therefore, the Williams north line, as called for in the original field notes, can be discovered at any place (and it is conceded that the said north line is well established, and is for the greater part identical with the south line of the' Samuel Crooks), then no fact is shown in the record why the said line should not run its complement of varas. There is nothing to show why the said line should be arrested. Therefore we can begin at any given point on the north line of the Williams, which can be positively fixed, such as the Crooks southeast corner has been, and it is only a question of course and distance to find either the northeast or the northwest corner of the Williams, and, if the bearing trees called for in the grant are not found, they will be presumed to have been there. It is conceded that none of the improvements of the appel-lees are on the S. P. R. R. Co. section No. 1, if the northeast corner and the east line of the Williams be fixed as stated above. The boundaries, or rather the northeast corner, of the Williams survey, being fixed at a point 132 varas east of the southeast corner of the Samuel Crooks, is decisive of all questions raised on this appeal. The boundaries of the Williams are fixed by its calls and the calls of the Crooks survey located by the same surveyor, near the same time.

As stated before, if the southeast corner of the Crooks was identical or nearly so with the northeast corner of the Williams, no reason can be imagined why it was not so nominated. We are of the opinion that the north line of the Williams should be fixed by course and distance, and, nothing in this record being shown to arrest same, and no bearing trees being now found at the northeast corner of the Williams, as set out in the grant, they will be presumed to have been there.

We are of opinion that the northeast corner of the Erasmus Williams survey should be, and we find the same to be, 132 varas east from the Crooks southeast corner, which is shown to have been on the north boundary line of said Williams survey.

What has been said disposes of the case.

The judgment of the lower court is therefore reversed, and judgment here rendered for appellant.

Reversed and rendered.
      <S=^For other cases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes