author: CARL, J.

text:
    TRAUZETTEL et al. v. KJELLMAN et ux.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1914.
    On Motion for Rehearing, Feb. 25, 1914.)
    1. Exchange oe Property (§ 5) — Rescission —Right to Rescind.
    Plaintiff exchanged Texas lands for California lands belonging to defendant. After discovering defendant’s fraud and misrepresentations with regard to his land, plaintiff mortgaged it, and upon mortgage foreclosure, the mortgagee bought it in. This was done before plaintiff discovered that his Texas lands had been conveyed to a bona fide holder. While plaintiff claimed that the purchaser would re-<convey the California lands in event of a judgment of rescission, no tender of the deed was made. Held, that plaintiff by treating the California property as his own after he had discovered the fraud, made an election and could not thereafter rescind his contract.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. § 5.]
    On Motion for Rehearing.
    2. Exchange oe Property (§ 8) — Contracts —Rescission—Evidence.
    In a suit for the rescission of an exchange of land, evidence held to show that plaintiff treated the property, which he acquired by the exchange, as his own before he knew that the land which he parted with had been conveyed to a bona fide purchaser.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14r-18; Dec. Dig. § 8.]
    Appeal from District Court, Calhoun County; Jno. M. Green, Judge.
    Suit by William Kjellman and wife against G. O. Trauzettel and others. From a judgment for plaintiff, defendants appeal.
    Reversed and rendered.
    Davidson & Bailey, of Cuero, and Temple-ton, Brooks, Napier & Ogden, all of San Antonio, for appellants. Proctor, Vandenberge & Crain, of Victoria, for appellees.

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

   CARL, J.

Appellees Wm. A. Kjellman and Oline Kjellman, his wife, .filed this suit to rescind a sale and to cancel a deed dated October 10, 1910, made by them to appellant G. O. Trauzettel, for 102 acres of land in Calhoun county, Tex., being a part of the A. Esparza grant and herein referred to as Noble’s Point. This property was conveyed to Trauzettel for a section of land in Riverside county, Cal., being section No. 19 in township No. 2, range No. 1 west, San Ber-nardino Base Meridian, and containing 672.-72 acres of land; and for the western one-half of farm lot No. 391 of the subdivision of lands belonging to the Semi-Tropic Land & Water Company, in San Bernardino county, Cal., containing 12 acres of land on which was an orange and an olive grove. This latter is known as the “Colton farm.” The petition charged that fraud was practiced on him, in that Trauzettel pointed out the wrong boundaries to section 19, representing to him that it contained tillable land which it did not contain, and also that it had certain water supplies for irrigation which it did not have; that it had valuable grease-wood timber which was not .found there on examination; and that the amount of incum-brances exceeded what it was represented were against the land. It further alleged misrepresentations by Trauzettel as to the orange and olive grove on the 12-acre Colton farm, and the water rights in connection therewith. The petition further charges that Trauzettel and J. D. Clayton conspired together to defraud the plaintiff, and that the intervener, the Mortgage Securities Company, was really the defendant John D. Clayton. There was an alternative prayer for $19,500 damages in the event rescission was not granted, composed of (1) $5,000 excess in-cumbrance on the California property, (2) $4,500 excess valuation on Colton orange grove, and (3) $10,000 excess valuation on section No. 19, and prayed that these amounts be fixed as vendor’s lien on the Noble’s Point property in Calhoun county. This alternative prayer was abandoned on the trial.

The Mortgage Securities Company, a corporation of Los Angeles, Cal., was permitted to intervene in the case, and the defendants Trauzettel and Clayton, joining therein, entered general demurrer, general denial, and plea of not guilty. The defendants Clayton and the Mortgage Securities Company specially denied that they perpetrated any fraud on plaintiff, or had any notice of fraud being perpetrated on him. And further they set up a note for the sum of $8,000, dated October 24, 1910, signed by G. O. Trau-zettel and his wife, due 90 days after date, payable to the order of John D. Clayton, who, it was alleged, was merely trustee for the Mortgage Securities Company, and secured by a deed of the Noble’s Point property above referred to; the answer setting forth that an absolute deed on its face for this property made by G. O. Trauzettel and wife to him was.in fact a trust to secure said note, and foreclosure of the lien was asked. Clayton and the Mortgage Securities Company set forth that when plaintiff Kjellman and Trauzettel began negotiations for the exchange of their respective properties, the Mortgage Securities Company held a lien on Trauzettel’s California property, in the sum of $8,000; that such sum had been advanced to Trauzettel by the company for the purpose of taking up liens on section 19 in Riverside county, Cal.; and that plaintiff knew of the same and requested such shifting of the lien from the California property to Noble’s Point property, so that section 19 might thereby be relieved of that debt. The inter-vener Mortgage Securities Company asked for judgment against the defendant Trauzet-tel for the amount of said note and certain other amounts shown to have been advanced, and for foreclosure of the lien on the Noble’s Point property. It might also be added that the plaintiff in his pleadings tendered a re-conveyance of the California property, but this was a mere offer; no deed having been tendered.

The ease was tried by the court without a jury, and judgment was rendered for plaintiffs against all defendants for title and possession of the Noble’s Point property and for cancellation of the deed made by Kjell-man to Trauzettel, as well as the deed made from Trauzettel to Clayton and from A. B. Carlisle to Clayton. The judgment further undertoot to estop plaintiffs Kjellman and wife from asserting any interest in the California property, and gave the Mortgage Securities Company judgment against the defendant Trauzettel, but refused to establish a lien on the Noble’s Point land to secure same. The court filed conclusions of law and facts, to which findings exceptions were duly reserved. This is a sufficient statement of the case for the present, as the evidence will be more fully developed in the discussion of the various assignments.

In July, 1910, appellee Kjellman and his wife went from Port Lavaca, Tex., to Los Angeles, Cal., “prospecting” with a view of staying there if they liked it and could make suitable disposition of their Texas property. At Los Angeles they discovered an advertisement which brought them in touch with appellant Trauzettel who was in a receptive mood for Texas property on an exchange basis. After considerable correspondence and some personal interviews, Kjellman went out with Trauzettel to look over the California properties, and Trauzettel showed him the good points and, Kjellman claims, left out the bad points. The result was that Kjell-man became satisfied to make a deal, his understanding at that time being that Trau-zettel’s property was' incumbered for $8,120. This was in October, 1910. Trauzettel had not inspected the Texas property, and therefore took an option subject to inspection. Kjellman and wife made their deed and put it with John D. Clayton to be delivered to Trauzettel when Clayton should furnish certificates of the title company as to the California property showing title in him subject to $8,120 to be assumed by appellee. An escrow agreement to this effect was signed by Kjellman, but subsequently was amended when it wás discovered that there was $8,920 against the property, so as to cover that sum. On November 2, 1910, the deed from Kjellman to Trauzettel and from Trauzettel to Clayton conveying the Texas property were placed of record in Calhoun county, Tex., and on November 15, 1910, the deeds from Trauzettel and wife to Kjellman for the California property were placed of record. On December 28, 1910, appellee called at Clayton’s office and got the title certificates and other papers together with a bill from Clayton for his services and expenses incurred in the transaction. In this bill was an item for the recording of Kjellman’s deeds for the California property. This bill was for about $22 altogether. He paid the bill.

The first assignment of error complains that the court erred in rendering judgment for rescission of the contract of sale from Kjellman to Trauzettel and the cancellation of this deed for the 102 acres of land, since 'this is a suit in equity in which the plaintiffs seek equitable relief, and in which they are first required to do equity, and, having offered to convey back to Trauzettel and the Mortgage Securities Company the ■California property, it becomes their duty to do so, etc. This court agrees with appellant’s contention, and therefore this assignment is sustained.

The trial court finds that Kjellman, on December 30, 1910, had discovered that the in-cumbrances were $1,200 in excess of $8,920, the amount he was to assume; and that he thereupon instructed his attorney to file suit in Calhoun county, Tex., and he says that he knew then he had been defrauded. His attorney did file suit in cause No. 1,635 in the district court of Calhoun county, and in that suit he alleged a violation of the escrow agreement, made both Trauzettel and Clayton parties defendant, and alleged the transfer from Trauzettel to Clayton, and sought to fix the $1,200 excess indebtedness as a lien on the Noble’s Point property. After he got his papers, December 28, 1910, he says he wrote the creditors and “I got replies in about a week, or something like that. It took me up to the 5th of January. After I had gotten replies as to the amount of back taxes, interest, etc., due on this property, I went to Clayton’s office and tendered the documents back to him and made demand on him for my deed. That was January 5, 1911. I told him that the incumbrances were more than had been agreed upon, and demanded back my deed to the Calhoun county property. He told me he had put it of record in Calhoun county, November 2, 1910.” He says further that he went to see the orange grove October 13, 1910, and then he told Trauzettel he did not consider it what he had claimed for it. He then learned about the water rights. A minister on the train had told him about the water contracts being assessable, about October 17,1910. He found out in February, 1911, all the facts he claims to have discovered about the orange grove and false representations in regard thereto. He had discovered all the fraud he claims was practiced on him by February 1, 1911, except as to the location of section 19. On February 7, 1911, he went on this land to have it surveyed and locate the corners, and learned. of the misrepresentations, he says, Trauzettel had made. A survey was made of this section, February 8, 1911, and he thereupon wired his attorney at Port Lavaca, Tex., to demand $4,000 additional to Ms claim by reason of these alleged misrepresentations. His suit was then pending, and be continued to prosecute tbis suit for damages until November 3, 1911, when a nonsuit was forced upon him. He and his wife borrowed $3,000 and secured it by a mortgage on section 19, on July 20, 1911, in favor of Spring (or Springer). He says he called Spring’s attention to tbe $8,920 already against tbe property which be bad assumed, and then borrowed $3,000 in addition on this quarter. Not only tMs, be bought tbe Galli and Wilson mortgages on the property. He got these notes, kept them awhile, and then sold them and got the money for them; and Springer foreclosed on them. He has put it beyond his power to return what he got. He has borrowed money on the land, which has not been paid, and permitted his friend, Spring, to buy in the land. He has dealt with this property as his own, after he has discovered all of the alleged fraud. His election has been made, and at this late date a court of equity will not permit him to have a rescission of the contract. It is not sufficient to say that there was no equity in the property and therefore nothing to return. That is a matter of opinion, and in appellee’s opinion there were hundreds of acres of satsuma oranges being grown profitably at Noble’s Point. The other man was entitled to have returned what he gave, whether it was worth anything or not. It may be that Trauzettel spread the pallets, but Kjellman has selected his and must lie on it. The law governing a transaction of this kind is clearly stated by Judge Stay ton in Allyn & Co. v. Willis & Bro., 65 Tex. 71, as follows: “Speaking of cases in which the owner of goods has been induced to make a sale by fraud of the vendee, the rule is thus stated: ‘This contract is voidable at the election of the vendor, not void ab initio. It follows therefore that the vendor may affirm it, or may rescind it. He may sue in assumpsit for the price, and this affirms the contract, or he may sue in trover for the goods or their value, and this disaffirms it.’ Benj. Sales, 433, and authorities cited. We therefore conclude that the appellees had such notice of the fraud, through wMeh they were entitled to rescind the sale to Ewing, at the time they instituted their action agamst him to recover the value of the goods, as to make their act in bringing that action a bar to their right afterwards to rescind the contract of sale. The two actions are inconsistent.” TMs doctrine is approved and again well stated in Wachsmuth et al. v. Sims et al., 32 S. W. 822.

Appellees prosecuted their first suit up till November, 1911, a period long after the last fraud is claimed to have been discovered in February of that year, and after a part of the California property had been mortgaged by them to Springer on July 20, 1911, to secure the payment of a $3,000 loan. Springer foreclosed and brought in the property. Kjellman had bought in the Galli and Wilson mortgages and then sold them to Springer. Appellee has so dealt with the property in California as to put it beyond his power to return it as he received it, and to rescind he must do this. Gibson v. Lancaster, 90 Tex. 540, 39 S. W. 1078; Aultman v. York, 71 Tex. 261, 9 S. W. 127.

The disposition we have made of the first assignment of error will likewise dispose of the second and third assignments.

It further appears from the undisputed evidence that the deed made by G. O. Trauzet-tel and Georgia Trauzettel, his wife, to John D. Clayton, was in fact a mortgage or trust deed for the purpose of securing -Trauzet-tel’s note dated October 24, 1910, for the sum of $8,000, due John D. Clayton or order 90 days after its date at 8 per cent, per annum interest, and that this note and security were assigned to the Mortgage Securities Company, and that the note also provides for the payment of expenses incurred and for attorney’s fees. The intervener, Mortgage Securities Company, is entitled to have judgment for said debt against G. O. Trauzettel and to have the deed, made • from Trauzettel and wife to John D. Clayton, declared a mortgage or trust lien to secure.said indebtedness and to have the same foreclosed against the Calhoun county, Tex., land, and the same ordered sold as under execution to satisfy said debt.

It is therefore the order of this court that the judgment of the district court of Calhoun county be and the same is hereby in all things reversed, and judgment, is here rendered:

1. That plaintiffs below take nothing by reason of this suit.

2. That intervener, the Mortgage Securities Company, a California corporation, have judgment against G. O. Trauzettel for the sum of $8,000, principal due upon said note, together with 8 per cent, interest per annum thereon from October 24,1910, until paid, and 10 per cent, of the amount of principal and interest due April 21, 1913, as attorney’s fees; and for the further sum of $1,215.68 expenses incurred together with 8 per cent, interest thereon per annum from November 1, 1912, until paid.

3. And that the deed made by G. O. and Georgia A. Trauzettel to John D. Clayton for the Noble’s Point property in Calhoun county, Tex., be declared a trust or mortgage on said land for the purpose of securing said debt, and such lien be in all things foreclosed, and said Noble’s Point-property be sold as under execution to satisfy such debt and judgment and costs.

4. The costs of the entire proceedings in this court and the court below are adjudged against the appellees.

Judgment reversed and rendered.

On Motion for Rehearing.

Appellee has filed an extended motion for rehearing, in wMch he insists that he did not deal with the property as his own after he knew all the acts of fraud alleged to have been practiced on him. Eor instance, he says he did not know that Clayton had a deed reconveying the Noble’s Point property to him until the trial began in April, 1913.

The deed from, Clayton and his wife to A. B. Carlisle was dated July 17, 1911, and acknowledged by Clayton the same day, and by his wife on July 25, 1911. In this the Noble’s Point property was conveyed, and on the same day Mrs. Clayton acknowledged the deed to Carlisle in Los Angeles, Carlisle executed his reconveyance to Clayton in Hamilton county, Tenn. This is rather rapid work, it is true; but this could not have any bearing on Kjellman in dealing with the California property as his own. He placed the $3,000 mortgage on a part of section 19 on July 20, 1911, three days after Clayton acknowledged his deed to Carlisle and two days before Mrs. Clayton acknowl-ed that same deed. So at the time Kjell-man executed the mortgage he could not have been affected by a belief that Carlisle, an innocent purchaser, had acquired the Noble’s ¡Point property, because he did not then know that Clayton had sold it. In fact, Clayton’s wife had not acknowledged the deed in California at the time Kjellman put the $3,000 mortgage on section 19. This is a rapid age, as shown by the fact that Carlisle in Tennessee executed a sale to Clayton of property he had, we assume, that morning bought in Los Angeles, Cal. But speedy as these transactions were, we do not believe that Kjellman could have been influenced by an event that did not happen until two days later, unless it be that “coming events cast their shadows before.” The Car-lisle deed could not have been an excuse for placing the mortgage loan on section 19 and thereby dealing with the property as his own after he knew all of the alleged fraudulent acts. Kjellman says: “When I found out Clayton had deeded my property to another party, I thought I was shut out; that was the way I looked at it.” He could not have thought this when he put the $3,000 mortgage on section 19, July 20, 1911, because at that time neither the deed from Clayton to Carlisle nor the one from Carlisle back to Clayton had been executed and were not till July 25, 1911. So Kjellman is in error about being in any way influenced thereby.

So we have seen that Kjellman discovered the last alleged act of fraud February 8, 1911, when he had section 19 surveyed and found, as he says, that it had been misrepresented, and that the good land shown him was not on that sectiop, and that the amount and value of greasewood under the ground was not as represented. July 20th following this, he mortgaged a part of section 19 for $3,000, bought up two other mortgages, and sold them again to Springer, who foreclosed under them and sold the land. He could not have been influenced by the Clayton deed to Carlisle because it was not Anally executed until July 25, 1911, and was not placed of record until subsequent to that time. With all the alleged fraud before him and with full knowledge thereof, he has put the land beyond his reach. True, he says he had an arrangement with the purchaser to convey it if necessary; but the purchaser makes no such offer, and no legal document appears by which he could be compelled to do so. The placing of land beyond his power to return it has destroyed his right to rescission (El Campo Co. v. Texas Supply Co., 147 S. W. 338), unless he had shown a valid excuse to explain his conduct, which he has not done (Geiser Mfg. Co. v. Lunsford, 139 S. W. 64). In the El Campo Case, supra, the pleadings themselves show, on part of the complaining party, that the property had passed beyond the control of the party seeking to rescind. It was held that a rescission could not be had and the Supreme Court denied a writ of error. The court said: “By the pleading, it will be seen that the ownership of the engine and the producer had passed to another, the Water, Light & Power Company of El Campo. By the sale of the engine and the producer, appellant put it out of its power to deliver either thereof to appellee, which, in law, constitutes an election on its part to accept the property and to proceed by some other avenue for its remedy. Kempner v. Advance Thresher Co., 54 Tex. Civ. App. 650, 118 S. W. 714. Nor does the fact that the Water, Light & Power Company of El Campo had rejected the engine and producer after its purchase from appellee, as alleged, change the situation. ' That concern, it seems, had sued appellant for damages, which appears to be inconsistent with the claim that it also had rejected the engine and producer, and that appellant, for that reason, was prepared to deliver same back to appellee. We understand that ‘contracts can only be rescinded where it is possible to put the parties back in their original position and with their original rights. A contract, voidable for fraud, cannot be avoided when the other party cannot be restored to his status quo. If it cannot- be rescinded in toto, it cannot be rescinded at all; but the complaining party must resort to an action for damages’ (9 Cyc. 437, 438), or,' as he may do under our statutes, plead failure of consideration in a suit to recover the purchase money. There may be some variation in the rule; but the pleading in the instant case presents none.”

The plaintiff’s own pleadings in this case show that Kjellman had mortgaged the property and fail to put him in a position to restore it; and the evidence of plaintiff puts it even further from his power to restore, and he could not therefore recover as was done.

Appellee’s very able motion for a rehearing has caused us to go more into detail than we otherwise would have done. But we do not believe that he has shown any right to rescission of the contract, and therefore adhere to our original opinion, and overrule the motion.


source: Caselaw Access Project

author: HADD, J.

license: Public Domain

text:
    DENNIS v. KENDRICK.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.)
    1. Trial (§ 390) — Conclusions on Daw and Fact— Consideration.
    Findings of fact and conclusions of law filed after the time fixed by statute cannot be considered on appeal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 913; Dee. Dig. § 390.]
    2. Tbial (§ 392) — Findings on Fact — Conclusions on Daw — Requests.
    Under Rev. Civ. St. 1911, art. 1989, providing that, on a trial by the court, the judge shall, at the request of either party, state in writing his conclusions of law or fact, where the court acted on a verbal request, and had an order reciting the request entered, a written request is not a condition precedent, even though it is a better practice.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. § 392.]
    3. Tbial (§ 392) — Findings on Fact — Conclusions on Daw — Requests.
    Where plaintiff’s counsel, after an adverse finding, orally requested the court to file his findings of fact and conclusions of law, and the court had the request entered upon the docket, his failure to file such findings will necessitate a reversal, even though he did not understand the purport of the request; it not appearing that plaintiff’s counsel knew that he did not understand.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. § 392.]
    4. Appeal and Eeboe (§ 670) — Recoed—An-nidavits.
    The verity of the record filed in the appellate court cannot be controverted by affidavits.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2865, 2866; Dec. Dig. § 670.]
    Appeal from Dallam County Court; T. S. Mills, Judge.
    Action by F. R. Dennis against A. S. Kendrick. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Moore, Harrington & Powell, of Dalhart, for appellant. W. B. Chauncey and Clifford Braly, both of Dalhart, for appellee.

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

   HADD, J.

On a former day of this term we affirmed the judgment of the trial court, stating in the opinion that the record showed no application to the judge for an extension of time in which to file bills of exception, and that no time was granted- We were correct in the first part of this statement; but appellant’s motion has called, to our attention permission by the trial court, appended to the order overruling plaintiff’s motion for new trial, to file bills of exception within 60 days. • In accordance with this permission, appellant’s bill has been filed within due time.

The first assignment of error is based upon the failure of the court to file findings of fact and conclusions of law. The bill of exception taken to this action of the court contains the following qualification and explanation: “Request for findings of fact and conclusions of law was made to me by counsel for plaintiff after motion for new trial had been overruled, and the case passed on the docket, and while other cases on the docket were being called, and also at a time when neither of defendant’s counsel were in the courtroom, but were in courtroom immediately before request was made to the court. I was at the time busily occupied with other matters on the docket, and did not fully understand the request made by counsel for plaintiff, and simply told said counsel to write on the docket exactly what he wanted. Said counsel thereupon made the entry cited in bill on docket. Nothing further was said or done about the matter, nor did I know the exact nature of counsel’s request, until on or about the 22d day of June, 1913, when I received the foregoing bill of exception through the mail. At all of the times from the adjournment of my court, on May 10, 1913, up until I left Dal-hart for Baird, Tex., June 17, 1913, I was in Dalhart, where plaintiff’s attorneys resided, and there accessible at all times. I was called to Baird by the serious illness of my daughter at that place, but was only absent from Dalhart between the 17th and 21st days of June, 1913. At no time prior to said 22d day of June, 1913, was my attention called to this request for findings and conclusions by counsel for plaintiff or any one else, nor did I have occasion to look over my docket, and see said entry made by counsel for plaintiff, as heretofore stated. Had I been informed that plaintiff desired said findings and conclusions, I could and would have promptly prepared same. Since the matter has been recalled to me by receipt of the foregoing bill, I have prepared said requested findings of fact and conclusions of law, and have caused same to be filed with the clerk of this court on this date, and same are hereby tendered to plaintiff this June 30, 1913. T. S. Mills, County Judge, Dallam County.”

Appellee offers in his brief to consent to the filing of the findings and conclusions since prepared by the court. Even if we should permit this to be done, findings and conclusions filed after the time allowed by law could not be considered by us. State v. Pease, 147 S. W. 649; Velasco Fish & Oyster Co. v. Texas Co., 148 S. W. 1184.

Appellee further insists that, because the appellant’s request to file findings and conclusions was not in writing, the court should not have considered it. R. S. of 1911, art. 1989, is as follows: “Upon a trial by the court, the judge shall, at the request of either of the parties, state in writing the conclusion of fact found by him, separately from tile.conclusions of law; which conclusions of fact and. law shall be filed with the clerk and shall constitute a part of the record.” While it is true that in some opinions of the Supreme Court and of the Courts of Civil Appeals the statement is made that requests for findings and conclusions “were filed,” we have found no ease in which the question was squarely considered, and the rule that written requests should be made is announced. It is held, in People v. Little-john, 11 Mich. 60, that under circuit court rule 87, requiring a written request for findings, a written request is not necessary, except where a party desires a detailed finding on the facts of the case as well as on the questions of law; and in 8 Stand. Enc. of Prae. 1007, it is said: “It is the usual and proper practice simply to request the court to make separate findings of fact and conclusions of law upon all material points involved in the case, it not being necessary to .prepare and submit written requests for particular findings as is required where the trial is to a jury and special findings of fact are desired, except in those jurisdictions where additional request for the incorporation of specified facts in the findings is provided for.” Vickers v. Buck, etc., Co., 70 Kan. 584, 79 Pac. 160; Atchison, etc., Ry. Co. v. Ferry, 28 Kan. 686. Whatever the rule may be, and notwithstanding it is our opinion that the safer and better practice would be to make the request in writing, although the statute does not seem to require it, we are not willing to hold that a written request was a condition precedent in this case where the court acted upon a verbal request, and had the order entered.

By referring to the court’s qualifications, set out above, it will be seen that he was ignorant of the purpose and effect of the request and order which counsel for appellant made and entered upon the docket. It has been held, in Lumpkin v. Marress, 102 S. W. 1169, and Kemp v. Everett, 126 S. W. 899, that it was the duty of appellant’s counsel to do more than make the request; but these cases seem to.have gone off upon the failure of appellant to-present the matter by proper bills of exception. The general rule is that the court has no right to qualify a bill of exceptions. As said by Reese, Justice, in Brunner Fire Co. v. Payne, 54 Tex. Civ. App. 501, 118 S. W. 603: “In the absence of something in the way of a bill of exceptions signed by the judge or bystanders, under the statute, we cannot say that the qualification of the bill by the court was not done with consent of appellant. Without such consent the judge had no right to qualify the bill, but should have either signed it, or, if not correct, should have indorsed his refusal to do so, and should then have made out and filed what he considered a proper bill, leaving appellant to his remedy of a bill by by- ] standers, under the statute, if he was not satisfied with such bill. The statute (Sayles’ Annotated Civil Statutes 1897, arts. 1367, 1369) prescribes very clearly the duties of the judge and the rights of litigants in such cases, and should be observed.” In this case however, while the trial judge states that he did not fully understand the request, and did not know that he was expected by appellant to file his findings and conclusions, it does not appear that appellant’s counsel was aware of the court’s want of understanding. The bill, and the qualification as well, shows that the request was made in open court, and entered by order of the trial judge upon the docket by appellant’s attorney, and in our opinion appellant had the right to expect that the request would be-granted, and the findings and conclusions filed. We know of no rule requiring plaintiff’s counsel to make the request more than once, nor to follow this request by repeated applications to the court to perform a plain statutory duty.

Affidavits have been filed by one of appellant’s counsel and by a bystander, controverting in some particulars the statement of facts set out in the court’s qualification. It has been frequently held that the verity of the record filed in this court cannot be impeached by such affidavits. Hamilton v. Saunders, 37 Tex. Civ. App. 141, 84 S. W. 253; Paris v. Du Bose, 27 Tex. 6; King v. Summerville, 80 S. W. 1050; Albright v. Corley, 40 Tex. 106. We think, if the record disclosed that.appellant’s counsel knew that the court did not fully understand the request, and he then failed to call the court’s attention specifically to it, then the judgment should be affirmed, and appellant’s first assignment should be overruled.

Because of the failure of the court to file the findings and conclusions, the judgment must be reversed, and the cause remanded.

One other assignment of error is urged by appellant, to the effect that the court erred in not sustaining plaintiff’s plea of estoppel, as set up in plaintiff’s first supplemental petition. This assignment has already been discussed in our original opinion, and no further discussion of it is deemed necessary here.

Reversed and remanded.

       Opinion withdrawn.


author: HARPER, C. J.

text:
    SEWALL v. COLBY et al.
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 29, 1914.
    Rehearing Denied Feb. 26, 1914.)
    1. Exceptions, Bill op (§ 39) — 'Time op Filing.
    Where the term of court may by law continue more than 8 weeks, bills of exception must be filed within 30 days after adjournment, unless the court shall, by order entered of record, extend the time for.filing.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 51, 52, 54-56, 60; Dec. Dig. § 39.]

      2. Appeal and Eeboe (§ 547) — Reooed — Bill op Exceptions — Necessity.
    Where it is desired to present on appeal the refusal of the trial court to file conclusions of law and fact as requested, the matter must he presented by an appropriate bill of exceptions.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    3. Tbial (§ 390) — Conclusions op Law and Fact — Time op Filing.
    Conclusions of law and fact not filed for over two months after the trial come too late and cannot be considered for any purpose.
    TEd. Note. — For other cases, see Trial, Cent. Dig. § 913; Dec. Dig. § 390.]
    4. Teial (§ 393) — Conclusions op Law and Fact — What Constitute.
    Findings of fact and conclusions of law made by the court without request from either party cannot be considered, particularly where it was impliedly conceded by the parties and the court that they were not full but were merely memoranda for the private use of the judge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 920-923; Dec. Dig. § 393.]
    Error to District Court, Harris County; Norman G. Kittrell, Judge.
    Suit by Cleveland Sewall against Frank Colby and others. There was a verdict for defendants, and plaintiff brings error.
    Affirmed.
    E. P. & O. K. Hamblen, of Houston, for plaintiff in error. L. B. Moody, of Houston, for defendants in error.

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

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

   HARPER, C. J.

This suit was brought by the plaintiff in error against defendants in error to recover a judgment for $4,000, or so much thereof as the evidence might show him entitled to, as the value of certain lumber and building material used by one Davidson in the construction of certain houses belonging to the defendants. Trial before the court without jury resulting in a decree that plaintiff have nothing, and that defendants recover costs.

Appellant’s first three assignments of error request a reversal of this cause for the reason that he was deprived of a material legal right in that he was deprived of the findings of fact and conclusions of law by the trial court, based upon the following bill of exception, which, not denied, recites the facts: “Be it remembered that on August 8, 1911, in the above-numbered and entitled cause (which had theretofore been tried before the court without a jury and which the court had taken under advisement), the court entered judgment in said cause, decreeing that plaintiff therein take nothing by his suit against defendants, being a suit to recover a money -judgment, which said judgment was entered by the court about 4 or 4:30 o’clock on the afternoon of said date. That on said afternoon the court also hastily prepared findings of fact and conclusions of law in said cause, which findings of fact and conclusions of law, however, were not made in response to any motion therefor by any party to said suit, but were prepared by the court of his own accord, for his own guidance, and the court thereupon instructed the clerk to file same, and the judge of said court left the state that night and was absent from the state until September 10th. That, upon the return of the judge of said court on such date, the plaintiff in the case told the court that plaintiff had filed a motion on August 15, 1911, for the court’s findings of fact and conclusions of law, but that, on account of the court’s absence from the state, nothing could be done except that plaintiff had caused to be prepared a draft of the findings of fact in said case according to plaintiff’s idea, which he tendered to the court and asked the same to be filed in accordance with said motion. The court had some recollection that such findings had been prepared and filed, but the matter not being clear, and said findings not having been found, the court thereupon again prepared findings of fact and conclusions of law, which are attached hereto as part hereof, marked ‘Exhibit F’ for identification, with the suggestion that plaintiff take said matter up with defendants’ counsel and have same inserted in the record by agreément. That upon plaintiff taking said matter up with defendants’ counsel, as the court is informed, defendants’ counsel got the clerk and made a search to see if any findings of fact and conclusions of law had heretofore been filed, and said counsel and clerk found that same had been filed, but found same, as shown by the clerk’s affidavit made part hereof, in the-record room for ‘disposed of cases’ in said clerk’s office in a box for ‘appeal papers’; but not with the records and papers in the case, and that no entry or record was made of such findings in the case upon any docket or minutes, except that the clerk in his current ledger had entered a charge for filing same. In this respect the attached affidavits marked Exhibits A, B, O, D, E, and F, are referred to as part of this bill. In preparing the findings that were filed the court did so hastily on account of leaving, and in preparing the second set of findings, which are attached hereto as part hereof, the court made certain findings of fact that were not in said original findings so filed, but which were facts that the court found in disposing of the ease, and which, at the plaintiff’s request, were incorporated in said findings so attached hereto. In this connection I state such were facts as found by me in the disposition of said cause, and that their omission from said original findings was by oversight, and, in so far as I may have the right or authority at this time, I now state that such are my findings, and that such findings appearing in the attached set that may not appear in the original findings are found by me as facts in the case. In this connection, I state that the term of my court expired by law on August 10, 1911, and that I did not return until September 10, *1911, and from August 9, 1911, to September 10, 1911, I was absent from the state of Texas, and I make this bill at the request of the plaintiff in order to show that the court, during such time, was not accessible to him in order to have such additional findings of fact made by motion as would have been his right during such time, and before ten days after the expiration of said court term; and I further state, if I had been present and accessible to plaintiff as aforesaid, that X would have made such additional findings of fact in response to his request just as I actually did make them after my return upon his request that the findings of fact be made upon such points. In the original findings of fact it is stated that defendants declined to enter into any agreement or contract with plaintiff in respect to plaintiff’s asserted rights in the lumber used in defendants’ houses, but upon reflection and reference to the record in said cause, and stenographic report of the testimony, I find that the evidence shows that the agreement sought was one of security for plaintiff, which Davidson agreed to'procure from defendants, and that defendants at first declined to make any written agreement for fear same would be placed on record, but that, upon Davidson agreeing that same should not be placed on record, the written instrument referred to above was executed. In the original findings filed August 8', 1911, I inadvertently omitted a debit of $280 against defendants, which appears in the attached findings and which increases the amount of the balance. Norman G. Kittrell, Judge Presiding.”

Appellee objects to this court considering the said assignments because they do not comply with the rules of this court, invoking rules 24 and 25 (142 S. W. xii), but they are not subject to the criticisms made. Also an objection is urged to the consideration of the above bill of exception because it was filed more than 60 days after the adjournment of court.

It is very doubtful whether or not the document above set out is sufficient in form to constitute a bill of exception, but, conceding that it is, this court cannot consider it. The rule is that, where the term of court may by law continue more than 8 weeks, bills of exception must be filed within 30 days after adjournment, unless the court shall, by order entered of record, extend the time for filing same; and in the case at bar, the court being one in which the term might continue 8 weeks, and the time for filing bills of exception was extended for 30 days, which extension expired September 18, 1911, and no further time having been granted by an order to that effect entered of record, this bill of exception, filed October 23, 1911, came too late and cannot form the basis of an assignment of error. Hamill v. Samuels, 104 Tex. 46, 133 S. W. 419.

It is uniformly held by the appellate courts of this state that a bill of exception must be taken to the failure of the trial court to file conclusions of law and fact as requested, in order to entitle the matter to consideration upon appeal. Cotulla v. Goggin Bros., 77 Tex. 32, 13 S. W. 742; Michie Dig. vol. 7, p. 107, and cases there cited. It is equally true that, in the absence of statement of facts through no fault of the appellant, the failure or refusal of the trial judge, upon request in reasonable time, to file his conclusions of law and fact usually necessitates a reversal of the case upon appeal. Fitzhugh v. Franco-Texas Land Co., 81 Tex. 306, 16 S. W. 1078.

It is absolutely essential to a proper consideration of the merits of a cause upon appeal that findings of fact and conclusions of law or a statement of facts be in the record, because in the absence of both, when a case is tried without a jury, and questions of fact upon which the testimony was conflicting, and the trial judge has not filed his conclusions of fact, this court is bound to presume that his determination of the question has been such as will support the judgment, when in truth he may have made a contrary finding and has erred in his conclusions of. law based upon it. In such a case the appellant fails to secure by his appeal a review of the determination of the legal question, and the reversal of the judgment for the error in the ruling, if error has been committed. It is for this reason, in part at least, that the statute provides that upon a trial by the court the judge shall, at the request of either of the parties, also state in writing the conclusions of fact formed by him separately from the conclusions of law. Article 1989, Rev. Oiv. Stat. 1911. It is true that in this case the court filed his conclusions, but more than two months after the adjournment of the term of court at which the case was tried. This is not in compliance with the statute, and is «so likely to work injury to one of the parties to the case that when properly brought to the attention of this court, as in this case, cannot be approved. For instance, if the conclusions had been filed within the ten days after adjournment, and they were found not to contain a finding upon some material issue, or if either party to the suit thought any one or more of the findings were not supported by the facts, he could take proper steps to have- additional findings or to attack the findings as made and to have his statement of facts prepared and filed with the record, and thus fully present his case in appeal for review.

And litigants are not required to follow the trial judge-into foreign states, summer resorts, or favorite fishing places to secure his action upon motions filed with the court. But matters complained of in the trial court must be brought to the attention of this court in the way prescribed by the statutes and the rules of the court (in this case by bill of exception) in order to authorize their' consideration at all, and herein is where appellant’s fault lies, for since the appellant has neglected to keep the record straight as above indicated, his assignment of error based upon the bill of exception in the record cannot be considered.

Appellant presents some assignments in his brief based upon the finding of fact and law filed by the court on the 8th day of August, which were made, as the record discloses, without request from .either party; that by reason of this fact they cannot be considered, especially in view of the further fact that appellant and the trial court both indicate that such were not full, complete, or possibly correct so far as they go. Neither party was required to notice them, and even appellant only does so as a case of last resort. City of Houston v. Kapner, 43 Tex. Civ. App. 507, 95 S. W. 1103.

There being no findings of fact and conclusions of law in the record which can be considered, and no statement of facts, and being no fundamental error apparent, the judgment of the lower court is affirmed.

Affirmed.


author: HALL, J.

text:
    STANLEY v. SUMRELL.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1914.
    Rehearing Denied Feb. 21, 1914.)
    1. Sales (§ 335) — Remedies oe Seller — Resale.
    Where, upon refusal of a landlord to purchase a tenant’s share of a crop of corn and pay the market price, as he had agreed to .do, the tenant sold the corn elsewhere, the tenant was bound, whether he sold the corn as agent of the landlord or as a seller whose vendee had refused to complete the sale, to make the sale fairly and for the best price reasonably obtainable.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 921; Dec. Dig. § 335.]
    2. Pleading- (§ 21) — Rebugnant Allegations — “Market Value.”
    Where a petition alleged that plaintiff sold property at the best price obtainable for $425, and that the market value at the time of the sale was $870, and prayed for the difference as damages, the allegations were repugnant, since market value means the best price obtainable by reasonable efforts.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 44; Dec. Dig. § 21.

    For other definitions, see Words and Phrases, vol. 5, pp. 4383-4388; vol. 8, p. 7717.]
    3. Contracts (§ 171) — Construction—Entire or Severable Contracts.
    Where a lease of land for farm purposes was in the ordinary form, except that in addition the landlord agreed to purchase the tenant’s share of corn raised, and the parties performed all the conditions except as to the purchase of the corn, the contract was severable, and the stipulation as to the purchase of corn was not dependent upon the lease proper.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 754-757; Dec. Dig. § 171.]
    4. Contracts (§ 9) — Requisites and Validity-Certainty as to Subject-Matter.
    A contract by which a landlord agreed to purchase all the tenant’s kaffir corn except the amount the tenant wished to feed his teams, was rendered certain as to the subject-matter .when the tenant tendered to the landlord a definite amount of the corn.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.]
    5. Contracts (§ 10) — Requisites and Validity-Mutuality oe Obligations.
    Where a landlord agreed to purchase all the tenant’s kaffir corn except the amount the tenant wished to feed his teams, any want of mutuality was eliminated by the tender by tenant of a definite amount before repudiation by the landlord.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-^0; Dec. Dig. § 10.]
    6. Sales (§ 333) — Remedies oe Seller-Place and Time oe Sale — Notice.
    Where a landlord refused to comply with his contract to purchase his tenant’s share of’ corn, and refused to accept it when tendered by the tenant, no notice of the time and place of a resale by the tenant was necessary.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 919; Dec. Dig. § 333.]
    7. Evidence (§§ 113, 323) — Similar Facts and Transactions — Market Value.
    Testimony as to what plaintiff and other witnesses with property similarly situated would take for their property was inadmissible upon the issue of market value, as was also evidence of an unaccepted offer for the property.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296, 1214-1217; Dec. Dig. §§ 113, 323.]
    Appeal from Wheeler County Court; L. D. Miller, Special Judge.
    Action by C. F. Sumrell against J. E. Stanley. From a judgment for plaintiff, defendant appeals.
    Reversed and rema'nded.
    J. B. Reynolds, of Wheeler, for appellant. N. P. Willis, of Canadian, for appellee.

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

   HALL, J.

November 13, 1911, appellant Stanley leased to appellee a certain farm in Wheeler county, and, among other stipulations in the written contract of lease, is the following: “Party of the first part [appellant] agrees to buy of party of the second part [appellee] all his kaffir corn at market value at the farm, excepting the amount second party wishes to feed his teams.” The lease contract, in addition to the one quoted, contains the usual terms, and it is not necessary to state them further. On November 30, 1912, appellee sued the appellant in the county court of Wheeler county, alleging the execution of the lease contract, its expiration on December 31, 1912; that it bound him to plant and cultivate 140 acres, of the land leased to kaffir com; that the defendant specially agreed that he would purchase all of such kaffir corn, except the amount plaintiff wished to feed his teams at market value at the farm; that plaintiff’s portion of the kaffir corn so grown upon said land became and was 96% acres, upon which there was matured an average of three tons of kaffir corn to the acre, and which became marketable on or about the 15th of November, 1912; that on said date plaintiff offered the said corn to the defendant at market price thereof upon said farm, which he alleges was $3 per ton, or the sum of $9 per acre, aggregating $870; that thereupon defendant refused to purchase the same, saying that he needed no kaffir corn, and that he was willing to pay only $384 therefor, and instructed plaintiff as to the disposition of the corn, to the effect that if plaintiff could find any person within 10 days who would pay more than $384 for said corn, plaintiff should sell said kaffir corn within 10 days to said person. Plaintiff further says that at said time it was known to defendant that plaintiff had worked an entire farm year upon the crops, and that plaintiff’s share of the kaffir corn represented the bulk of plaintiff’s compensation for a year’s work, and that plaintiff had contracted debts in and around the town of Wheeler near said farm; expecting to pay said debts from the proceeds of the sale of said kaffir corn, and that said debts were due, and that it was necessary for plaintiff to make immediate disposition of said corn to pay said debts, on account of which plaintiff was obliged to sell, and did sell, the same for the sum of $425, which was the best price obtainable at said time, though less than the market value of said corn, because the market value thereof at the time of said sale was $870, on account of which plaintiff lost the difference, amounting to $445, which he alleges to be the amount of his loss and damage, and that said sum constitutes special damage, of which defendant had notice, in that plaintiff was obliged to make immediate sale of said kaffir corn, and at a sacrifice, to pay his debts, as defendant further instructed him to do, and, further, because, as was shown to defendant, said kaffir corn must be speedily sold for the reason it would soon be destroyed and eaten up by wild ducks, in the condition.and place in which it was at said time. Plaintiff further proceeds to allege facts under which he claims a lien upon the appellant’s share of the kaffir for the payment of his damages. By trial amendment plaintiff alleges that defendant gave him instructions to sell the kaf-fir corn within 10 days for more than $384, and that plaintiff accepted the defendant’s instructions in such respect, and undertook to carry them out, to sell said corn for defendant’s account as defendant’s agent, of all of which defendant had due notice.

Appellant’s answer consisted of a general exception, special exceptions to that part of plaintiff’s petition in which it is alleged that defendant instructed plaintiff to sell the com to any person whom he could find who would pay more than $384, because the allegation is vague, indefinite, and uncertain and does not undertake to give what were the supposed instructions, but simply states the construction placed upon the instructions by plaintiff, and because the allegation leaves it uncertain whether the instructions were intended to empower the plaintiff to make such sale as the agent of defendant, or merely waived his right to purchase at the price offered, and consented that plaintiff might do better if he could. Exception was further urged to that part of the petition seeking special damages because it attempts to hold the defendant liable for loss occasioned by his sacrifice of the corn, without showing an excuse for such supposed sacrifice, except the stress of financial circumstances of the plaintiff, whigh would constitute no justification for sacrificing the property, and afford no grounds for special damages, and because it was not alleged that the defendant was notified by plaintiff that he was holding the corn as the agent of the defendant and was selling it for his account. There was a further special exception upon the ground that the contract shows upon its face to be without consideration, and that it lacked mutuality of obligation, in that defendant promised to buy such corn as plaintiff did not wish to feed to his teams, leaving it altogether with plaintiff as to how much defendant was to take, if any at all, of the corn, and was therefore not enforceable, and was void. All of the defendant’s exceptions were overruled by the court. The court charged the jury that the measure of plaintiff’s damages would be the difference between the contract price of the kaffir corn and the price at which plaintiff subsequently resold the same, provided they believed that plaintiff exercised reasonable care and diligence in reselling it, and further charged that before they could find for plaintiff they must find, by a preponderance of the evidence, that the plaintiff elected to resell the kaffir corn, and that defendant had due notice thereof, and that plaintiff exercised reasonable diligence to resell the same within a reasonable time, and at the best price he could reasonably obtain. There was a verdict and judgment for the plaintiff in the sum of $445.

The first assignment is that the court erred in overruling the defendant’s general exception to the plaintiff’s petition. It is alleged, as shown above, that plaintiff sold the corn because he was obliged to do so to meet his financial obligations, and because the wild ducks were destroying it. Whether he sold it as the agent of the defendant at the defendant’s request or as the seller, whose vendee had refused to complete the sale, the duty rested upon him, in either event, to make the sale fairly, and for the best price reasonably obtainable. If he sacrificed the property, as alleged, in order to meet obligations of his own for the existence of which the defendant was in no way responsible, he could not charge appellant with the difference between the contract price and the price obtained by him under this sale at a sacrifice.' We think if the value of the kaffir corn deteriorated by reason of the depredations of the wild ducks, or from any other cause for which appellee was not responsible, between the time the appellant refused to accept the corn and the date of the sale, appellant could have been made to bear such loss, and this fact was no excuse for the sale at a sacrifice. It will be observed that the plaintiff alleges that when appellant refused to accept the corn he instructed plaintiff to sell it to any one whom he could find within 10 days who would pay more for it than $384 (this being the amount of appellant’s offer). It is further alleged that the sale for the sum of $425 was at a sacrifice, but that it was for the best price obtainable, and the petition also alleges that the market value of the corn at the time of the sale was $870. “ ‘Market value’ is defined to be the price which the property will bring in a fair market after fair and reasonable efforts have been made to find a purchaser who will give the highest price for it.” 5 Words & Phrases, 4383; Winnipiseogee Lake Cotton & Woolen Mfg. Co. v. Town of Gilford, 67 N. H. 514, 35 Atl. 945. Our Courts of Civil Appeals have defined the term in the same way. Souther v. Hunt, 141 S. W. 359; Burr’s Perry Railway v. Allen, 149 S. W. 358; M., K. & T. Ry. v. Murray, 150 S. W. 217. Market value, as alleged in the petition, implies the existence of a market in which the price alleged was obtainable after fair and reasonable effort to that end. The allegation- that the market price was $870, and the statement in the same count that $425 was the best price obtainable, and the further statement that the sale was made at a sacrifice, are repugnant and inconsistent. Applying the rule that equivocal expressions in pleading are to be construed against the party using them, to the plaintiff’s petition, we think the appellant’s exception should have been sustained. Barry v. Screwmen’s Benevolent Ass’n, 67 Tex. 250, 3 S. W. 261; Rowe v. Horton, 65 Tex. 89.

Since the failure of the court to sustain the general exception and the special exception urged to the allegations above set out will require a reversal of the judgment, it is proper that we should discuss briefly such remaining assignments as may be pertinent upon another trial. We think the contract was severable, and the stipulation with reference to the sale of the kaffir corn was not, as shown by the contract itself, dependent upon that portion constituting the lease proper. Smith v. Crosby, 47 Tex. 128. “A contract is entire when its terms, nature, and purposes show that it is contemplated and intended that each and all of its parts, material provisions, and consideration are common each to the other .and interdependent. A divisible contract is one which from its nature and purposes is susceptible of division and apportionment, and has two or more parts in respect to matters and things embraced by it, and not necessarily dependent on each other, and the parties do not intend that they shall be. The fact that the contract is embraced in one instrument does not make it entire and indivisible. Whether or not the contract is entire or divisible depends on the intention of the parties. - The intention is to be ascertained from the language used, the subject-matter of the contract, and from a consideration of all the circumstances.” 2 Elliott on Contracts, § 1543. On this question the record seems to disclose that all the conditions of the contract, save the one relating to the sale of the corn, have been performed by the parties respectively, and such performance accepted. If we are to decide that question in the light of their acts, then they intended to make a severable contract. It is the rule that the acts of the parties under a contract are generally convincing, if not conclusive, of what they understood the contract to mean, and are explanatory of what their intent was in making it. Hagelstein v. Woods, 127 S. W. 854.

Nor was there such a want of certainty in the description of the subject-matter of the sale as rendered it void. The case of Crosby v. De Bord, 155 S. W. 647, construes a contract almost identical with the one in question and its validity was upheld. Under the clause of the contract in question it is true that Sumrell had the right to retain as much of the kaffir corn as he desired with which to feed his teams, and appellant may have had the right to repudiate the contract in that particular prior to the time the appel-lee made an offer of a specific amount of feed, but not afterwards. The question of uncertainty, and we think also the question of mutuality, were fixed and determined by ap-pellee’s offer of a definite amount before repudiation by appellant. “An offer leaving certain matters to the determination of one party or the other is definite enough. * * * An offer to buy all the coal used for certain years at a price established for certain grades, though the purchaser ha? the right to select the grades to be furnished,” is sufficiently certain. 1 Page on Contracts, § 27. “If from the contract the court can determine the terms and conditions thereof and can determine the measure of damages in case of breach, the contract is sufficiently definite. The surrounding facts can be looked to to determine whether the offer is sufficiently definite. Thus an offer to pay one-third of the money received from all the privileges on fair grounds; an offer to sell goods to be resold for cash, the money thus received, less certain specified expenses to be turned over to the original vendor, out of which money the goods bought are to be paid for; an offer to sell a certain number of scales to be selected out of several different kinds which were sold at different prices ; an offer to allow the buyer of corporate stock to retain out of the purchase price an amount equal to the unpaid debt of the corporation; an offer to sell a certain fraction of the total amount of the capital stock to be thereafter issued in a corporation to be formed; an offer not to compete in the practice of medicine, nothing being said as to time, and not to compete in business while the purchaser of the good will is engaged in it; an offer to A. in consideration of his assisting to make a success of a wholesale cigar business — are sufficiently definite. So an offer to furnish goods for an electric light plant so long as the gas well holds out is definite enough, though the owner of the well can sell and use gas for other purposes.” 1 Page on Contracts, § 28.

In the description of property covered by chattel mortgages, where, as to the rule as to definiteness of description of contracts of sale, it has been held in this state that a description in a chattel mortgage which will enable third persons to identify the property, aided by inquiries which the mortgage indicates, is sufficient, and that written descriptions in such instruments are to be interpreted in the light of facts known to and in the minds of the parties at the time (Harless v. Jester, 97 S. W. 138; Ft. Worth Nat’l Bank v. Red River Nat’l Bank, 84 Tex. 369, 19 S. W. 517); and the doctrine is further declared in this state that a lien' created upon certain property included in a greater amount is not void for uncertainty, as it confers on the mortgagee a right to, select from the mass such property as shall be deemed included in the mortgage (Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466, 66 Am. St. Rep. 863).

If we construe. the contract in question under these decisions, then Sumrell had the right to select a sufficient amount of feed for his teams, shown to consist at that time of eight animals. On the issue of mutuality, it has been held that where A. was to have one-half the oil which might be located on B.’s land by A.’s drilling, but A. was not bound by the contract to drill, his drilling in pursuance .of B.’s promise is the consideration making a contract which equity will enforce specifically. Boyd v. Brown, 47 W. Va. 238, 34 S. E. 907; Spires v. Urbahn, 124 Cal. 110, 56 Pac. 794. “If the party to whom the election is given has elected to perform, and has performed, the want of mutuality is thereby eliminated.” 3 Page on Contracts, § 1619; Rose v. S. A., etc., Ry., 31 Tex. 49; Williams v. Rogan, 59 Tex. 438. It is held in Ben C. Jones & Co. v. Gammel-Statesman Pub. Co., 100 Tex. 320, 99 S. W. 701, 8 L. R. A. (N. S.) 1197, that a contract of like kind implied a duty resting on the part of appellee to select the amount required by him. When Sumrell offered to appellant the com raised on 96% acres, it was tantamount to a segregation of the feed which he was entitled to hold under 'the contract, and related back, eliminating the question of mutuality, making the contract good from the beginning. Taber v. Dallas County, 101 Tex. 241, 106 S. W. 332.

If appellee positively refused to accept the corn (Heidenheimer v. Cleveland & Cameron, 11 Tex. Civ. App. 546, 32 S. W. 826), or if appellant told appellee to sell to a third party, then it seems no notice of the time and place of the sale by Sumrell was required (Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727). There is some improper testimony in the record upon the question of market value. Testimony as to what plaintiff and other witnesses with property similarly situated would take for their property was inadmissible (E. T. Ry. v. Scurlock, 97 Tex. 305, 78 S. W. 490), and evidence of an unaccepted offer for the com in question or other com, was also inadmissible on the question of its market value (T. & P. Ry. Co. v. Randle, 18 Tex. Civ. App. 348, 44 S. W. 603). Testimony as to the price at which the owners of other corn had offered it for sale was also incompetent. Sullivan v. M., K. & T. Ry. Co., 29 Tex. Civ. App. 429, 68 S. W. 745.

The questions raised by the other assignments, and which have not been disposed of by what has been previously said, will either not arise on another trial, or are unimportant, and will not be considered.

The judgment is reversed, and the cause remanded.


author: KEY, C. J.

text:
    WITHERSPOON et al. v. DAVISS, District Judge.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 4, 1914.)
    1. COURTS (§ 247) — JUBISDICTION—TRANSEEB-eed Case.
    C°.?st- art- f 6, declares that the Courts °f Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, and * * * shall have such other jurisdiction * * * as may be prescribed by law.” Rev. Civ. St. 1911, art. 1587, provides that the Court of Civil Appeals to which a ease shall be transferred from another such court because of the pressure of business upon the latter’s docket “shall have jurisdiction of all such cases transferred without regard to the district in which the cases were originally tried and returnable on appeal.” Held, that the Court of Civil Appeals for the Third District had the same jurisdiction over a case arising in Navarro county in the Fifth District as it would have had had the case been originally appealed from a county within the Third. District.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    2. Mandamus (§ 58) — Grounds — Eneorcement oe Mandate.
    Under Rev. Civ. St. 1911, art. 1592, which declares that the Court of Civil Appeals and the judges thereof “shall have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts,” where a case has been reversed, with instructions to enter a particular judgment, and the trial court enters a judgment materially different from the one directed, the remedy of the dissatisfied litigant is by mandamus to compel entry of the proper judgment.
    [Ed. Note. — For other cases,, see Mandamus, Cent. Dig. § 121; Dec. Dig. § 58.]
    3. Appeal and Error (§ 1198) — Mandate-Construction — What Constitutes Disobedience.
    Where a mandate of the Court of Civil Appeals directing the entry of a perpetual injunction was directed to the district court of a certain county, and not to the particular judge thereof, such judge’s refusal in chambers to grant the application for such injunction was not disobedience of the mandate.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4668; Dec. Dig. § 1198.]
    4. Mandamus (§ 164) — Answer—Threats to Disobey Mandate.
    Allegations, in an application to the Court of Civil Appeals for a peremptory mandamus against a district judge, that such judge has threatened to disregard a mandate will not justify the Court of Civil Appeals in resorting to summary measures, especially where the judge in his answer denies making such threats.
    [Ed. Note. — For other case¾ see Mandamus, Cent. Dig. §§ 34⅜-360; Dec. Dig. § 164.]
    5. Mandamus (§ 164) — Answer—Eeeect.
    On an application to the Court of. Civil Appeals for a peremptory mandamus against a district judge to compel him to obey a mandate, the fact that the judge in his answer does not state what course he will pursue when the matter of enforcing the mandate is properly brought before him will not be regarded as evidence against him; it being. commendable for a judge to refrain from stating how he intends to rule in regard to any particular matter which may in the future come before him as a judge.
    [Ed. Note. — For other case¾ see Mandamus, Cent. Dig. §§ 344-360; Dec. Dig. § 164.]
    6. Mandamus (§ 172).
    Where a trial judge refuses to obey a mandate of the Court of Civil Appeals directing the rendition of a particular judgment, such court will, on proper showing, adopt such means as may be proper to enforce its mandate, even though an application for a peremptory mandamus against the judge to compel obedience of the mandate has been previously denied, because at the time of the denial there had been no disobedience by the judge.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385; Dec. Dig. § 172.]
    Original application for peremptory writ of mandamus by C. L. Witherspoon and others against H. B. Daviss, District Judge.
    Mandamus refused.
    W. J. MeKie and J. S. Callieutt, both of Corsicana, for relators. Richard Mays and R. S. Neblett, both of Corsicana, for respondent.

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

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

   KEY, C. J.

C. B. Witherspoon and Lucy P. Hines, joined by her husband, Frank Hines, have made application to this court for a peremptory writ of mandamus against Hon. H. B. Daviss, judge of the Thirteenth judicial district, to compel him to obey the mandate of this court, issued on the Sth day of January, 1914, in a case decided at the last term of this court, in which case this court determined and settled the rights of the litigants, and by its opinion, judgment, and mandate remanded the case to the district court of Navarro county, with instructions to that court to render a certain specified judgment. The case originated in the district court of Navarro county, and involved the right of possession to a certain tract of land. Frank Hines and his wife were owners of the land, and on the 30th day of September, 1910, they executed a mineral lease contract to W. H. Staley; and thereafter, on the 3d day of February, 1911, Frank Hines and his wife executed another lease contract, covering the same land, to O. L. Witherspoon. The suit referred to was a contest between Witherspoon and Hines and his wife on one side, and Staley and T. N. Barnsdall, who was claiming under Staley, on the other side, as to the validity and legal effect of the lease contract between Frank Hines and Staley. When the suit was first brought, a temporary injunction was issued against Staley, which was afterwards dissolved, and from the order of the judge dissolving that injunction, Witherspoon prosecuted an appeal to the Court of Civil Appeals for the Fifth District, which court approved and affirmed the action of the district judge in dissolving the temporary injunction, but did not direct or instruct the trial court what character of judgment to render when the main case was tried. Witherspoon v. Staley, 138 S. W. 1191. Thereafter the main ease was tried by the district court of Navarro county, and judgment rendered for Staley and his codefend-ant Barnsdall, from which judgment an appeal was prosecuted to the Court of Civil Appeals for the Fifth District; and, by order of the Supreme Court, the case made by that appeal was transferred to this court.

Afterwards, and in due order, the case was heard and decided by this court, and judgment rendered in favor of the appellants, with instructions to the district court of Navarro county “to render judgment for appellants canceling, annulling and setting aside said lease from Hines to Staley, and perpetually enjoining and restraining said appellees, their agents, employés, and contractors from going on the said Hines’ property for the purpose of developing oil or minerals, or any other purpose whatsoever. And, further, that they be likewise enjoined from interfering in any way with appellants in their effort to develop said property.” Witherspoon v. Staley, 156 S. W. 557.

Being dissatisfied with that judgment, the appellees Staley and Barnsdall presented a motion in this court for a rehearing, which was overruled; whereupon they applied to the Supreme Court for a writ of error, which application was refused by that court. After this court was properly apprised of the action of the Supreme Court in refusing to grant a writ of error, this court issued its mandate to the district court of Navarro county, commanding that court to observe, obey, and execute the judgment rendered by this court. The mandate was filed in the district court of Navarro county on the 12th day of January, 1914. Whereupon C. L. Witherspoon and Prank Hines and his wife made application to Judge Daviss in chambers for a writ of injunction against W. H. Staley and T. N. Barnsdall, requiring them to cease taking oil from the Hines farm, and not to interfere with or impede the right of Witherspoon and the Hineses to enter and take possession of said property. That application was heard in chambers, and was refused by Judge Daviss, and thereupon the Hineses and With-erspoon applied to this court for relief. The matter was set down for hearing, and was submitted upon the sworn application referred to, the sworn answer of Judge Daviss, the respondent, and written and oral argument by counsel for both sides.

Without dwelling upon minor matters, we will now consider the-principal questions discussed at the bar. The respondent’s answer raises the question, which was argued at length by counsel, that, inasmuch as Navarro county is not within the limits of this the Third supreme judicial district, but is within the limits of the Fifth supreme judicial district, therefore this court is without power and has no,further jurisdiction to issue any writ or do anything else for the purpose of enforcing the judgment of this court, or for any other purpose. By section 6 of article 5 of the Constitution of this state it is declared that the Courts of Civil Appeals “shall have appellate jurisdiction coextensive with the limits of their respective districts,” and that they shall also “have such other jurisdiction, original and appellate, as may be prescribed by law.”

This latter provision places it within the power of the Legislature to enlarge or diminish the jurisdiction of the Courts of Civil Appeals by changing either the character of cases that may be heard and determined by those courts, the method of bringing eases before them or their territorial limits. In 1895 the Legislature, acting in pursuance of that provision of the Constitution, and by the authority thereby conferred, enacted a statute for the purpose of equalizing the dockets of the different Courts of Civil Appeals, by which statute the Supreme Court was authorized to direct the transfer of cases from such Courts of Civil Appeals as might have a greater amount of business upon their dockets to those having a less amount; and we quote as follows from that statute, which is article 15S7 of the Revised Statutes of 1911: “And said Courts of Civil Appeals, to which such cases shall be transferred, shall have jurisdiction of all such cases transferred without regard to the districts in which cases were originally tried and returnable on appeal.”

The constitutionality of that statute was challenged in Bond v. Carter, 96 Tex. 359, 72 S. W. 1059, but the Supreme Court held that the clause of the Constitution last referred to was ample authority for the enactment of the statute. By the very terms ,of that statute, when a case has been transferred from one Court of Civil Appeals to another, the latter acquires jurisdiction, without regard to the county or district in which the ease originated and was tried. That phrase must have been put in the statute for the purpose of removing all possible doubt and rendering it absolutely certain that it was the intention of the Legislature, when a case had been transferred from one Court of Civil Appeals to another, that the latter should have as much jurisdiction over that case as over those which originated and were tried within the territorial limits of that court. So this court has no shadow of doubt upon the proposition that, when the case of Witherspoon v. Staley was placed upon its docket, it acquired jurisdiction thereof, to the same extent as it would have if the case had been originally tried by and appealed from the district court of Travis county, or any other county within the limits of the Third supreme judicial district. It does not seem to us that plausible room for difference of opinion can ■ exist upon that subject. It cannot be denied that the Constitution authorizes the Legislature to confer such jurisdiction, and the Legislature has declared that, when a case has been transferred, as authorized, by the statute, the court to which it is transferred has jurisdiction, without regard to where the ease was originally tried. If this language does not mean that, in determining the extent of the jurisdiction conferred, the place, the district, or the couhty in which the case was originally tried is not to be considered, then we confess our inability to understand the English language. This is all that we deem it necessary to say upon the subject of the jurisdiction of this court, as affected by the fact that the suit originated and was tried in another district and the appeal transferred to this court. In fact, we think that the statute above quoted answers the objection referred to, and it is difficult to make it any plainer than the Legislature has written it in that statute.

Article 1592 of the Revised Statutes of 1911, declares that the Courts of Civil Appeals, and the judges thereof, “shall have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” In the. leading case of Wells v. Littlefield, 62 Tex. 28, our Supreme Court held that mandamus was the proper remedy to compel a subordinate court, from which a case had been appealed, to render such judgment as the appellate court had directed that court to render. The Supreme Court had reversed that case, with instructions to the district court to render a particular judgment, which that court first did, but afterwards set the judgment aside, and was about to proceed to retry the entire case; whereupon Wells applied to the Supreme Court for a mandamus to compel the judge to obey the mandate of the Supreme Court, and render judgment for him, as directed by its mandate. After full consideration, and in pursuance of a luminous and instructive opinion by Chief Justice Willie, the Supreme Court issued a peremptory mandamus, requiring the judge of the trial court to obey its former mandate. In that case, it was contended by learned counsel that the Supreme Court had no power to deprive the district court and the judge thereof, of the judicial discretion vested in the latter court by law, and compel the judge of that court to render any particular judgment. We quote as follows from the opinion in that case: “Under our Constitution the Supreme Court has appellate jurisdiction only, and issues the writ of mandamus for the purpose solely of enforcing that jurisdiction. Const, art. 5, § 3. So soon as the jurisdiction attaches under an appeal or writ of error, this court has full control of the cause, and can make such orders concerning it as may be necessary to preserve the rights of the parties and enforce its mandates. This jurisdiction continues until the case, as made by the appeal or writ of error, is fully determined by this court, and its judgment is completely executed by the court below. If the judgment below is affirmed, or reversed and rendered or reformed, this court can see that the party in whose favor its decision has been given has the benefit of all proceedings below necessary to enforce its judgment. If remanded for a new trial, it retains control until the new trial is allowed in accordance with its mandate. If reversed and sent down to have some special judgment rendered by the court below, jurisdiction remains till that particular judgment is entered up, and the mandate of the court obeyed. Eor the purpose of enforcing all such orders coming within the appellate jurisdiction of the court, it may resort to the writ of mandamus, or any other appropriate writ known to our system of jurisprudence. * * ⅞ We think this court had authority to remand the cause to be disposed of as required in the opinion of the court. But it is further contended that, in giving its directions to the lower court as to the further proceedings to be had in the suit, this court allowed the former a judicial discretion which could not be controlled by a mandamus. To ascertain what judgment was to be rendered, we must look as well to the opinion of the court accompanying the mandate as to the mandate itself. West v. Brashear, 14 Pet. 51 [10 L. Ed. 350]. The opinion directs the court to render judgment in favor of Wells. That part of it is peremptory, and certainly leaves no discretion with the district court as to the party in whose favor the judgment must be entered up. If upon a new trial it should appear, by newly discovered evidence or otherwise, that such a case had been made out as entitled Littlefield to recover, and the court should accordingly give judgment against Wells, the order of the court would be disobeyed. The very terms of the opinion preclude all possibility of a new trial upon any issues already made, or facts transpiring before the time of the former trial.”

■ If we are correct in holding that this court has as much jurisdiction over the case of Witherspoon v. Staley as it would have possessed had that ease originated within the territorial limits of the Third supreme judicial district, then the foregoing excerpt from the opinion of the Supreme Court settles the question that this court has' not lost, but still possesses, jurisdiction and power to make such orders concerning that case as may be necessary to preserve the rights of the parties and enforce its mandate. Furthermore, although the case was disposed of finally by this court at a former term, still it is by no means clear that this court is without power to withdraw and cancel the mandate sent to the trial court, and enter upon its minutes the judgment which it directed the court below to enter, and issue the necessary process for the enforcement of that judgment. In other words, we are strongly inclined to the view that the decision rendered by this court, as disclosed by its written opinion and the entries made upon its minutes, was equivalent to, and, in effect, constituted, a judgment rendered hy this court in favor of Witherspoon and the other appellants. Black on Judgments, § 3. However, we do not mean to intimate what course will be pursued by this court in the event the trial court refuses to obey its mandate; and we also deem it proper to say that it has long been the practice of this court, when its decision settles the rights of the parties and requires the issuance of an injunction or some other like action, to reverse with instructions to the trial court. We have proceeded upon the assumption that the trial courts have more time, and it would perhaps be more convenient for such process to be issued from those courts, and that is the sole reason why that course was pursued in this instance; but what has since occurred in this case furnishes grounds for doubting the wisdom of the course pursued, and in the future that practice may not be adhered to. In pursuing the course referred to, it has never been the purpose of this court in any wise to disparage trial courts or the judges thereof. Before an appeal has been taken, those courts very properly have the power to decide any case as they believe it should be decided; and even after appeal, if the ease has been reversed, without instructions to render a specific judgment, the trial court can exercise its discretion, and, if it sees proper, decline to follow the views announced by the appellate court. But, when a case is reversed with specific instructions, both discretion and responsibility are withdrawn from the trial court. When a ease has reached that stage, the rights of the parties have already been adjudicated and settled by the appellate court; and, while the latter court may require the judgment to be entered on the minutes of the trial court, it is, in substance and effect, the judgment of the appellate court. In other words, the course referred to is merely a means adopted by the appellate courts for the enforcement of their own decisions settling the rights of the parties. When a case has been reversed, with instructions to enter a particular judgment, not only can the trial court be compelled to enter and enforce the judgment, but its enforcement cannot be obstructed by appeal or otherwise. No right of appeal exists from the means adopted for the enforcement of a judgment or decision of an appellate court In such a case, if the trial court should enter a judgment materially different from the one directed by the appellate court, the remedy of the dissatisfied litigant would be mandamus to compel the trial court to enter the proper judgment.

However, although we are satisfied that this court has jurisdiction and power to compel obedience to its mandate, we are of opinion that the relators are not entitled to the relief sought. The mandate of this court which pursues its judgment is directed to the district court of Navarro county, and not to Judge Daviss, when he is not acting as judge of that court. In other words, the judgment of this court and the mandate issued in pursuance thereof do not require or direct any action by Judge Daviss while the district court of Navarro county is not in session, and therefore his refusal in chambers. to grant relators’ application for an injunction does not constitute any disobedience of the mandate of this court And this is true, although he may have acted erroneously in ruling upon the application referred to, as to which we express no opinion.

But it is stated in the application presented to this court that, by setting the case of Witherspoon v. Staley for hearing at a particular day of the next term of the district court of Navarro county, and by certain statements to the effect that he did not consider that he was bound by the decision of this court, and did not intend to comply with its mandate, the respondent has manifested such a spirit of disobedience as entitles the relators to some character of remedy. No authority has been cited, and we know of none, which would justify holding that a mere threat by Judge Daviss to disregard the decision and mandate of this court would constitute such disobedience as would justify this court in resorting to summary measures. But, as a matter of fact, in his answer Judge Daviss denies that he has ever made the statements attributed to him, and that of itself is sufficient reason for this court’s declining to base any action upon the alleged statements.

It was also urged in argument that re-lators have stated in their application that, unless further action is taken by this court, when the district court of Navarro county convenes and the case in question is reached, Judge Daviss will disregard the mandate of this court, and will proceed to retry the case referred to, and that in his answer he has not denied that allegation, nor stated what course he would pursue in that regard. We do not think that the circumstances referred to would justify this court in issuing any other writ at this time. Generally speaking, it is regarded as commendable and not as reprehensible for a judge, or any one seeking a judgeship, to refrain from stating how he intends to rule in regard to any particular matter which might in the future come before him as a judge; .and therefore we are not disposed to consider respondent’s silence in regard to the matter referred to as evidence against him.

Finally, in the event this court grants no other relief, we were requested by counsel for relators to hold this proceeding in such an attitude that, if respondent, when he reaches this case upon his docket, should decline to obey the mandate of this court and enter the judgment required thereby, re-lators may supplement the present application, and then ask for the relief which is now denied; and we see no objection to pursuing that course. In fact, we see no reason why relators would not have that right without anything being said upon the subject; but we deem it proper to say that, while the record here made does not furnish sufficient reason to suppose that respondent will defy the mandate of this court, and refuse to execute its judgment as directed by that mandate, still, if he does so, and the proper supplemental showing is made, it will then become the duty of this court to award relators' relief by adopting such means as may be deemed proper to accomplish that result; and that duty will then be performed.

Mandamus refused.


author: DAVIDSON, J.

text:
    LEWIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.)
    1. Intoxicating Liquors (§ 205)—1Offense —Prosecution—Indictments.
    In a prosecution for the offense of selling intoxicating liquor in local option territory, the information or indictment should allege the date of the adoption of the local option law, for, iff the election was held subsequent to the passage of the felony statute, the county court would not have jurisdiction, and, if held before, it would have jurisdiction.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Criminal Law (§ 1086)—Appeal—State-ment oe Facts.
    The statement of facts cannot be changed or added to, and hence, where the statement of facts, in a prosecution for unlawfully selling intoxicating liquors in local option territory, failed to show that the local option law had ever been adopted, the conviction must be reversed.
    • [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    3. Intoxicating Liquors (§ 239)—Instruc-tions.
    In a prosecution for selling intoxicating liquor in local option territory, it is improper to refuse a charge on the question of agency, where that issue is raised by the evidence.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Will Lewis was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    Collins & Cummings, of Hillsboro, for appellant. C. E. Lane, Asst. Atty. .Gen., for the State.

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

   DAVIDSON, J.

The affidavit and information charges that on or about July 21, 1913, appellant “did then and there unlawfully sell intoxicating liquor to Walter Blackman, after the qualified voters of said county of Hill, Tex., had determined at an election, held in accordance with the laws of the said state of Texas, that the sale of intoxicating liquors should be prohibited in said Hill county,” etc. It will be noticed the date of the election is nowhere stated. The sale is alleged to have occurred on the 21st day of July, 1913, long subsequent to the enactment of the felony statute as a punishment for violating the local option law. This question is raised, but not in such way as can be considered in the light of the decisions of this court. These will be found collated in Nobles v. State, 158 S. W. 1133.

The writer would suggest that, in view of the fact that local option may be punishable according to the time at which the election was held as a misdemeanor or felony, it would save much trouble and many questions if the indictment or information would charge the day, month, and year on which the election was held. This would avoid complications. It would prevent those questions coming before this court on appeal. It the election was held subsequent to the passage of the felony statute, the county court would not have jurisdiction; if the election was held prior to the passage of that law, the county court would have jurisdiction, and it is well enough to avoid these complications by stating the date of the election.

The statement of facts fails to show that a local option election was held at any time, and in fact it is entirely silent as to whether or not local option was ever in effect. In this attitude of the record the judgment must be reversed. The statement of facts cannot be added to or changed. The certificate of the judge is conclusive of th« correctness of the statement of facts. Branch’s Crim. Law, § 43.

There is another question, as to the name of the alleged purchaser. 1-Iis real name is Blackburn. Some of the witnesses say he is sometimes called Blackmon or Blackman. To avoid any trouble of this sort, it would be well enough to prepare new pleadings and charge the real name of the party.

The question of agency is raised in the case. The court failed to charge on it; exception was taken and a special requested charge refused submitting this issue. Upon another trial this charge should be given.

The judgment is reversed, and the cáuse is remanded.