author: KEY, C. J.

text:
    STEVENS et al. v. HAILE.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 3, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Wills (§ 88) — Deed or Will.
    A written instrument recited that T. H., in consideration of love and affection toward his wife and to secure “to her and her heirs a home after my death,” and of the sum of $1 paid by the wife “at or before the ensealing and delivery of these presents, * * * have given granted aliened enfeoffed released conveyed and delivered and confirmed and by these presents do give grant,” etc., unto the said wife, “her heirs and assigns forever all my right title interest and claim that I now possess in and to the tract” described, together with all appurtenances “and the reversion and reversions remainder and remainders rents issues and profits thereof and also all the estate right title interest property claim and demand whatsoever” of the said T. H., “to have and to hold the said hereby granted and described premises and every part thereof with the appurtenances unto the said” wife, “her heirs and assigns and their only proper use and benefit and behoor forever from and after my death the delivery hereof not to occur until my death.” The instrument was acknowledged for registration on the day it was executed, but was not recorded until about two years later. Held, that the instrument was a deed, and not a will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dee. Dig. § 88.]
    2. Deeds (§ 108) — Construction.
    The habendum clause of a purported deed, reading, “To have and to hold the said hereby granted and described premises * * * unto the said H. her heirs and assigns and their only proper use and benefit and behoof forever from and after my death the delivery hereof not to occur until my death,” was ambiguous as to the time of the delivery of the deed, since the phrase “the delivery hereof,” etc., might have referred either to the property or the instrument.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 294-308; Dec. Dig. § 108.]
    3. Deeds (§ 206) — Constbtjction—Evidence to Aid — Sufficiency.
    Evidence, in trespass to try title, in which one of the parties claimed under an alleged deed, held not to show whether a provision of the instrument, “the delivery hereof not to occur until my death,” referred to the property conveyed or to the deed.
    [Ed. Note. — For other cases, see Deeds, Gent. Dig. § 614; Dec. Dig. § 206.]
    4. Words and Phrases — “Hereof”—“This.”
    The word “hereof” is defined as meaning of or concerning this, and the word “this” is a demonstrative adjective, used to point out with particularity a person or thing present in place or in thought.
    [Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 6961, 6962.]
    5. Deeds (§ 90) — Construction.
    A deed should be construed most strongly against the grantor, and also in a way to effectuate the instrument.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 234-237, 247, 248; Dec. Dig. § 90.]
    6. Wills (§ 88) — Construction — Deed or Will.
    In case of doubt, a deed should be construed so as to hold it a conveyance, in which case it would be operative, and not a will which would avoid it.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dec. Dig. § 88.]
    7. Deeds (§ 208*) — Delivery—Evidence.
    Evidence, in trespass to try title, held to show a sufficient delivery of a deed under which one of the parties claimed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. § 208.]
    8. Evidence (§ 269) — Admission oe Evidence.
    In trespass to try title, in which one of the. parties claimed under a purported deed which stated in the habendum clause, “delivery hereof not to occur until my death,” evidence was. admissible by the scrivener that the grantor said he did not wish to make a will, but preferred to convey by deed in such a way that he could retain control of the property during his lifetime, and did not say anything about delivery of the deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1063-1067; Dec. Dig. § 269.]
    9. Evidence (§ 273) — Admission oe Evidence.
    In trespass to try title, in which one of the parties claimed under a deed providing that “delivery hereof not to occur until my death,” evidence of grantee’s daughter that she heard her mother mention the deed on the night her father, grantor, died, or the next night, was admissible to show that grantee knew of the existence of the deed before grantor’s death.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.]
    10. Appeal and Error (§ 757) — Briefs—Unsupported Statements.
    The court rules on the subject prohibit statements in a brief not sustained by the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    Appeal from District Court, Williamson County; Charles A. Wilcox, Judge.
    Action by Ocie Stevens and others against Will Haile. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Appellants’ brief contains the following correct statement of the nature and result of this suit: “In the above cause plaintiffs, appellants herein, entered suit against the defendant, appellee herein, in the form of trespass to try title, for the title and possession of their respective undivided interests in and to the land described in their original petition, viz., about 322½ acres of land out of the S. J. Dover survey in Williamson county, Tex. The defendant answered by general demurrer, general denial, and by plea of not guilty, and by special answer disclaiming all of said land save about 200 acres claimed by him by virtue of a deed from his mother, Rebecca Haile, wife of Thomas Haile, deceased, dated August 10, 1903, and recorded August 22, 1911, in Deed Records of Williamson county, Tex. Defendant further specially pleaded the three, five, and ten years’ statute of limitations. To the pleas of limitations the plaintiffs answered that the land claimed by the defendant was the homestead of Thomas and Rebecca Haile, and that the said Rebecca Haile continued to occupy same, as such homestead, till her death, which occurred June 30, 1911, and that no cause of action therefore arose in behalf of the plaintiffs till after her death. The uncontrovert-ed facts show that the 200 acres claimed by the defendant was the community property of Thomas and Rebecca Haile, and that the plaintiffs are all lineal descendants of said Thomas Haile, who died intestate October 22, 1880. It is conceded by appellants that the appellee Will Haile is the owner of an undivided one-half, his mother’s community interest in said 200 acres, by virtue of the above-mentioned deed of August 10, 1903. The appellee claims his father’s community interest in the said 200 acres under an instrument from Thomas Haile to Rebecca Haile, dated March 1, 1879, and recorded January 12, 1881, in Deed Records of Williamson county, Tex. It is contended by the appellants that the last-mentioned instrument vested no right, title, or interest in the said land in the said Rebecca Haile. The case was tried before the court without thei intervention of a jury, and the court found for the plaintiffs as to their interests in the land disclaimed by the defendant, and found for the appellee as to the entire 200 acres claimed by him. Appellants in due time filed their motion for new trial, which was by the court overruled, to which action and ruling of the court they excepted and gave notice of appeal to this court. Appellants, having in due time executed proper appeal bond, bring this cause before this court for review.”
    Appellee’s title to the 200 acres of land in controversy depends upon the construction and validity of the following instrument:
    “The State of Texas, Williamson County.
    “Know all men by these presents: That I, Thomas Haile, of Williamson county and state of Texas, as well for and in consideration of the love and affection which I bear towards my wife Rebecca Haile, and to secure to her and her heirs a home after my death, and the sum of one dollar lawful money of the United States to me in hand paid by my said wife Rebecca Haile at or before the unsealing and delivery of these presents, the receipt whereof is hereby acknowledged, have given granted aliened enfeoffed released conveyed and delivered and confirmed and by these presents do give grant alien enfeoff release convey deliver and confirm unto the said Rebecca Haile her heirs and assigns forever all my right title interest and claim that I now possess in and to the tract of land in Williamson county on Block House creek a tributary of Brushy creek deeded to me by John B. Lawrence, is the tract now occupied by me as a homestead and is bounded on the east and south by. a tract now owned by Judge A. S. Walker on the west by H. D. Edwards homestead tract on the north by the Mason tract of land, said tract herein conveyed being a part of the S. J. Dover head-right league and contains two hundred and sixty five (265) acres of land more or less. Together with all and singular the tenements hereditaments and appurtenances thereunto belonging or in any wise appertaining and the reversion and reversions remainder and remainders rents issues and profits thereof and also all the estate right title interest property claim and demand whatsoever of the said Thomas Haile. To have and to hold the said hereby granted and described premises and every part thereof with the appurtenances unto the said Rebecca Haile her heirs and assigns and their only proper use and benefit and behoof forever from and after my death the delivery hereo'f not to occur until my death.
    “Witness my hand this the first (1st) day of March, A. D. 1879.
    “[Signed] Thomas Haile.”
    On the same day it was executed that instrument was acknowledged for registration before the notary who prepared it, but was not recorded until the 12th day of January, 1881. Thomas Haile was married to Rebecca Haile in January,’1858, and he died October 22, 1880, and the plaintiffs and the defendant are his heirs. It was admitted in the court below that both sides were claiming under Thomas Haile, and that he was common source of title. The trial court held that the instrument above set out was a deed, executed for the purpose of conveying title to Rebecca Haile, with the reservation of a life estate in the grantor, Thomas Haile, and that court also held that the proof showed sufficient delivery of the deed prior to the death of Thomas Haile), and both of those rulings are assigned as error in appellants’ brief.
    Nunn & Love, of Georgetown, for appellants. James H. Hart, of Austin, for appel-lee.

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

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

   KEY, C. J.

(after stating the facts as above).

1. We think the trial court ruled correctly in holding that the instrument referred to was a deed, executed for the purpose of conveying title, and was.not a will. In McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, Id. 89 S. W. 284, this court was required to construe an instrument in the form of a deed, which contained this language, “This deed is to take effect at my death and not beforeand it was there held that inasmuch as we have a statute which prescribes that an estate of freehold or inheritance may be made to commence in futuro by deed or conveyance, in like manner as by will, the instrument then under consideration was a deed and not a will. The opinions of Chief Justice iftsher in the case cited refer to and quote from authorities which support the conclusion there reached. However, that ease had been transferred from the Dallas court to this court, and it was thereafter appealed to that court, which approved the opinion of this court, and the Supreme Court refused to grant a writ of error. McLain v. Garrison, 112 S. W. 773.

2. In discussing the question of delivery of the deed, learned counsel for appellants concede that delivery may be actual or constructive, and that constructive delivery may occur by the grantor, if he be the husband of the grantee, retaining the deed in his possession for the benefit of the grantee, if nothing appears to the contrary. It is conceded that this proposition is established by the decision of our Supreme Court in Brown v. Brown, 61 Tex. 56, where it was held that, inasmuch as the husband is, in law, the custodian of his wife’s property, a deed executed by him conveying property to his wife, and found in his possession at the time of his death, constitutes sufficient proof of delivery to the wife before the death of the grantor; and it is upon that theory that the action of the trial court, in holding that there had been sufficient delivery in this case, can be sustained. The trial judge made findings of fact to the effect: (1) That the instrument referred to was intended as a deed, conveying title to Rebecca Haile, subject only to the life estate reserved to the grantor; (2) that it was taken by Thomas Haile to the home of himself and his wife, Rebecca Haile, and was there kept until the death of Thomas Haile; (3) that Rebecca Haile knew of the existence of the deed before the death of Thomas Haile; that it was the intention and belief of Thomas Haile that the deed had vested title to the property in his wife, Re-beeca Haile; (4) that he was unable to determine from the evidence whether or not there was in fac't an actual manual delivery of the deed from Thomas Haile to his wife, Rebecca Haile, prior to the death of Thomas Haile.

Appellee submitted evidence which sustains the first three findings of the trial court, and we overrule the assignments which assert the contrary. However, it is contended on behalf of appellants that the rule referred to in Brown v. Brown, supra, should not be applied in this case because the deed under consideration contains a stipulation that it was not to be delivered until after the death of Thomas Haile, the grantor. The exact language referred to is the latter part of the sentence, which reads as follows: “To have and to hold the said hereby granted and described premises and every part thereof with the appurtenances unto the said Rebecca Haile her heirs and assigns and their only proper use benefit and behoof forever from and after my death the delivery hereof not to occur until my death.”

The language, “The delivery hereof not to occur until my death,” is, in our opinion, ambiguous and may have referred to the property conveyed or to the instrument which accomplished that result; and no testimony was produced showing that it was intended to apply to the deed itself, and not to the property conveyed. On the contrary, the scrivener who wrote the deed stated that he did not remember that Mr. Haile said anything about the delivery of the deed itself. It is true that on cross-examination he stated that, as near as he could, he put into the deed what Mr. Haile instructed him to. But Mr. Haile may have instructed him to put a stipulation in the instrument to the effect that the property was not to be delivered until after his death, and the scrivener may have thought that the language referred to was sufficient for that purpose.

At any rate, the proof does not show that Thomas Haile instructed the scrivener to incorporate in the deed a stipulation that the deed itself was not to be delivered until after his death; and therefore we hold that the ambiguity which appears upon the face of the instrument was not removed by the evidence that was submitted.

Counsel for appellants contend that, considering the entire instrument, the language referred to is not ambiguous, but we cannot sustain that contention. The word “hereof” is defined by the Century Dictionary as meaning of or concerning this; and the word “this” is defined as a demonstrative adjective, used to point out with particularity a person or thing present in place or thought. When the word “hereof” was written in it, the deed and not the property was present in place, but the property, and not the deed, may have been present in thought; and therefore the use of that word in that connection renders it uncertain whether it was intended to refer to the deed or the property conveyed.

We then come to the question as to what construction should be placed upon the ambiguous language referred to, and that question is solved by the rules which require such instruments to be construed strongest against the grantor and so as to give effect to the instrument.

If the uncertain language referred to be construed as referring to the property conveyed, then there was a sufficient delivery of the deed before the death of the grantor; and, by adopting that construction, the instrument becomes operative and conveys the property to which it relates, and therefore we think it should be given that construction. As bearing upon the question of delivery, we also refer to the recent opinion of our Supreme Court in Henry v. Phillips (Sup.) 151 S. W. 533, which contains a discussion of that question and tends to support the conclusion reached in this case. The proof shows that Rebecca I-Iaile, the grantee in the deed, had it in her possession shortly after the death of the grantor, and had it placed on record.

One of her daughters gave testimony tending to indicate that her mother had knowledge of the existence of the deed prior to the death of Thomas Haile, the grantor, and that the deed, as well as other documents belonging to Thomas Haile, was kept in. the bedroom occupied by Thomas and Rebecca Haile, and probably in a trunk which was the separate property of Rebecca Haile, the wife; and considering these, and all the other facts and circumstances, and construing the ambiguous language of the instrument heretofore referred to and discussed as referring to the property, and not to the instrument itself, we think the trial court properly held that there was a sufficient delivery of the deed.

3. Other assignments complaining of the action of the trial court in admitting testimony are overruled. The testimony given by the scrivener who prepared the deed was to the effect that Thomas Haile stated that he did not desire to make a will, but preferred to convey the property to his wife by a deed, in such manner as that he Cth.o grantor) could retain control of it during his lifetime; and that he did not remember that anything was said concerning delivery of the deed. We think that testimony was admissible; but, if it had been excluded, the ruling made in McLain v. Garrison, supra, would require a holding that the instrument was a deed and not a will.

The evidence given by Mrs. Houghton, a daughter of the grantee, to the effect that she heard her mother mention the deed in question on the night that her father died, or on the next night thereafter and before her father was buried, was admissible as tending to show that Mrs. Haile had knowledge of the existence of the deed, prior to the death of Thomas Haile; and the balance of her testimony, tending to some extent to show where the deed was kept prior to her father’s death, and that it was in possession of her mother immediately after that event, was also admissible. In fact, counsel for appellants concede that Mrs. Houghton’s testimony was admissible, but contend that it did not justify a finding that Mrs. Haile had knowledge of the existence of the deed prior to the death of her husband, and did not show that the deed had been delivered in such manner as to render it effective. We think otherwise, and therefore overrule both of those contentions.

4. In concluding this opinion we take note of objections made by counsel on each side to the briefs filed by the opposing counsel. Counsel for appellee objects to a consideration of appellants’ brief, because it is typewritten and exceeds 15 pages. The brief referred to contains 22 pages, but it is typewritten, double spaced, and on paper of the same dimensions as the brief passed upon and approved by this court in Powell v. Stephens, 151 S. W. 33S; and therefore appel-lee’s objection to it is overruled.

Appellee’s brief contains the following statements: “Statements made by Rebecca Haile prior to her death to the effect that her husband brought the deed home with him, gave it to her, and told her it was her deed, and that continuously thereafter until the time of her husband’s death she had the deed in her custody, were regarded by the trial court as inadmissible.” “Because of the rules of evidence obtaining, we were not permitted to show that the deed had been delivered to her immediately upon its execution and had continuously thereafter been in her possession, with the consent of the . grantor, and in pursuance of his often-expressed desire that she take under it.” .

Counsel for appellants have filed a supplemental brief complaining of these statements because they are not sustained by the record. The complaint is well founded. ' The record does not show that appellee offered to prove that any such statement was ever made by Rebecca Haile; and therefore the statements referred to constitute a violation of the rules relating to briefs, were improper, and have been disregarded by this court in its decision of the ease. The rules governing the manner of briefing cases forbid statements not sustained by the record; and, while the high standing and known integrity of the attorney who prepared apipellee’s brief prevents the conclusion that the statements referred to were made for an improper purpose, nevertheless we feel it to be our duty to condemn such practice.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    FIRST NAT. BANK OF COLEMAN v. MARTIN & CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 24, 1914.
    Rehearing Denied Jan. 28, 1914.)
    1. Action (§ 27) — Tort oe Assumpsit.
    Where defendants converted cotton which had been shipped to them for storage, and an action was brought wherein it was attempted to charge them with the highest price of the cotton during the season of the conversion, the action sounds in tort and not in assumpsit.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.]
    2. Venue (§ 22) — Effect of Assignments.
    Where defendants converted cotton belonging to their codefendants, who drew a sight draft upon them for the highest price of the cotton during the season of the conversion, the sale of the" draft to a bank with a statement of the facts of the transaction does not operate as a transfer and guarantee of'the payment of the indebtedness, subjecting the drawer and payee to suit by the purchaser in the county of the former’s residence, and hence defendants do not lose their privilege to be sued in the county of their residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by the First National Bank of Coleman against T. W. Martin and J. N. Grain-ger, copartners, composing the firm of Martin & Co., and S'. L. Gohlman and J. E. Lester, copartners, composing the firm of Gohlman, Lester & Co. From a judgment sustaining the last-named defendants’ plea of privilege, plaintiff appeals.
    Affirmed.
    This suit was brought by appellant against T. W. Martin and J. N. Grainger, composing the firmi of Martin & Co., residents of Coleman county, and against S. L. Gohl-man and J. E. Lester, composing the firm of Gohlman, Lester & Co., residents of Harris county, alleging that Martin & Co. during 1912 had forwarded to Gohlman, Lester & Co. two shipments of cotton, the first containing 99 and the last 144 bales, of the aggregate weight of 117,331 pounds, of the value of 10 &/i6 cents per pound, to be held by them for sale, which Gohlman, Lester & Co. had, without their consent, wrongfully sold and converted to their own use and benefit; that by reason thereof said Gohl-man, L.ester & Co. became indebted to Martin & Co. for the highest market price of said cotton during the season of 1912, which was the sum of 10 5/16 cents per pound, aggregating $12,103.02, less an indebtedness due from Martin & Co. to them of $9,059.11, leaving a balance due from Gohlman, Lester & Co. to Martin & Co. of $3,045.51. Second. That thereafter, on March 15, 1913, Martin & Co. executed and delivered to appellant the following draft:
    “Coleman, Texas, March 15, 1913.
    “On demand pay to the order of the First National Bank of Coleman, Texas, three

      thousand and forty-five and 51/ioo ($3045.51) dollars as per statement attached, same being a full settlement of all claims of Martin & Company against Gohlman, Lester & Company, by reason of the sale or conversion of 144 bales of cotton and the 99 bales of cotton mentioned in attached account and statement. [Signed] . Martin & Co. “To Gohlman, Lester & Co., Houston, Tex.”
    Attached thereto was the following statement: “Gohlman, Lester & Co. of Houston, Tex. Debtors, to Martin & Co. of Coleman, Tex. For the value of 144 bales of cotton, weighing 70,886 pounds, shipped by the said Martin & Co. to the said Gohlman, Lester & Co. and received by them prior to June 10, 1912, and sold by the said Gohlman, Lester & Co. on or about June 10, 1912, without the authority or consent of Martin & Co., and converted to the use and benefit of the said Gohlman, Lester & Co. on or about said June 10, 1912. Also the value of 99 bales of cotton weighing 46,445 pounds shipped by the said Martin & Co. to the said Gohlman, Lester & Co., and received by them prior to May 16, 1912, and sold by the said Gohlman, Lester & Co. on or about May 16, 1912, without the authority or consent of Martin & Co., and converted to the use and benefit of the said Gohlman, Lester & Co., aggregating 117,331 pounds, the said Gohlman, Lester & Co. being indebted to Martin & Co. because of said wrongful sale and said conversion of said property in the sum of 10 g/io cents per pound, the highest market price prevailed during July, 1912, aggregating the sum of $12,103.62, less an indebtedness due from Martin & Co. to said Gohlman, Lester & Co. in the sum of $9,059.11, making balance due from Gohlman, Lester & Co. to Martin & Co. in the sum of $3,045.51.”
    Appellant further alleged that it became the purchaser of said draft by paying Martin & Co. therefor the sum of $3,045.51; that it caused said draft to be duly presented to Gohlman, Lester & Co. and they refused to pay the same, whereupon it demanded payment of Martin & Co. thereof, which was refused, by reason of which it was alleged that Martin & Co. became liable and bound to pay plaintiff the full amount of said draft, with interest thereon; and by reason of the purchase thereof it became the owner and holder of all claims of Martin & Co. against said Gohlman, Tester & Co. on account of the conversion by them of said cotton, as per said statement, as well as of all the indebtedness due from them to said Mhrtin & Co. growing out of said transaction, and that Gohlman, Lester & Co. thereby became indebted to it in said sum of $3,045.51, and prayed judgment therefor against both of said firms.
    Defendants Martin & Co. answered by cross-action, reiterating and admitting the facts set up by appellant, and prayed for judgment against Gohlman, Lester & Co. for the amount claimed in said statement, and that the same be applied in payment of the draft drawn by them on said firm. Appellees Gohlman, Lester & Co. answered by plea of privilege, and in connection therewith urged that they were improperly joined as defendants, because the pleadings of appellant, as well as the cross-bill of Martin & Co., showed that the cause of action asserted against them grew out of a tort committed in Harris county.
    It was shown that Gohlman, Lester & Co. resided in Harris county, and that Martin & Co., prior to this transaction, were indebted to appellant by note in a sum in excess of the amount of said draft; that said draft was drawn by them, and delivered to appellant, who gave them a credit on their note for the amount thereof, and forwarded said draft in due course to Houston for collection. That, upon presentation to Gohlman, Lester & Co., payment thereof was refused, and that Martin & Co. had likewise failed to pay the same or any part thereof. It was not shown that there was any parol or written transfer of said account from Martin & Co. to the bank, nor any guaranty by them of its payment.
    At the conclusion of the evidence, the court peremptorily instructed a verdict on said plea of privilege in behalf of appellees Gohlman, Lester & Co. and verdict and judgment were rendered in accordance therewith, and the venue of the case changed to Harris county, from which judgment this appeal is prosecuted.
    Woodward & Baker, of Coleman, for appellant. Snodgrass, Dibrell &' Snodgrass, of Coleman, for appellees Martin & Co. Andrews, Ball & Streetman, of Houston, for other appellees.

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

   RICE, J.

(after stating the facts as above). Appellant urges that the court erred in.peremptorily instructing a verdict in favor of appellees on their plea of privilege, and insists that the evidence showed that it was a bona fide purchaser for value of the draft sued upon, and the cause of action held by Martin & Co. against the defendants Gohl-.man, Lester & Co., and that Martin & Co. were residents of Coleman county at the time of the institution of this suit; for which reason they assert said suit was properly brought against all of the defendants in said county. It is contended by appellees Gohlman, Lester & Co., however, that this suit cannot be maintained against them in Coleman county, for the reason that the transaction out of which it is alleged to have arisen was a tort, and that plaintiff’s claim is one sounding in damages for tort, and that therefore they were improperly joined as parties defendant with Martin & Co. But appellant, while denying that this is a suit based upon tort, insists that, even if it were, it had the right to waive the tort and bring its suit for the value of said cotton, which it claims it did, and that hence the rule invoked against it does not apply.

We think it is clear in this case that the cause of action is based upon a tort, as shown by the pleadings. The suit was not brought to recover the proceeds of th'e cotton alleged to have been converted, nor was it brought for the value thereof at the time of its alleged conversion; but it was brought to recover the highest value of the cotton during the cotton season of 1912, which may have been greatly in excess of the proceeds realized from its sale, or in excess of its actual value at the time of the alleged conversion, thereby making it a suit for damages, the amount of which was wholly and entirely uncertain; so that appellant did not waive the tort, but, on the contrary, relied upon it for a recovery. See Gould v. Baker, 12 Tex. Civ. App. 6G9, 35 S. W. 708, wherein,, quoting from Elwell v. Martin, 32 Vt. 217, it is said: “Where property hag been tortiously taken and converted into money, the plaintiff may sue in tort, or he may waive the tort and sue in assumpsit. When it is said that he waives the tort, it is not meant that he does any act or makes any averment in his declaration to that effect. He simply brings assumpsit instead of trespass or trover, and thereby foregoes the advantage he would have if he sued tortwise to claim higher or exemplary damages, and to proceed against the person of the defendant.”

So that, if the cause of action is one sounding in damages far a tort, and the plaintiff has seen proper to sue upon the tort, as we think in this case it has done, then the question arises, admitting that the cause of action based thereon is the subject of assignment (see Ry. Co. v. Freeman, 57 Tex. 156), as to whether or not such claim was assigned and its payment guaranteed by Martin & Co. in such manner as to render ap-pellees Gohlman, Lester & Go., liable to be sued thereon as joint defendants with Martin & Co. in a county other than their residence as against their plea of privilege.

It is true that in Provident Nat’l Bank v. Hartnett Co., 100 Tex. 214, 97 S. W. 689, it was held that the mere drawing and sale of a draft to a bank, with a statement thereto attached showing an indebtedness upon a contract, would operate as a transfer and guaranty of the payment of such indebtedness, subjecting the drawer and payee thereof to suit by the purchaser in the county of the former’s residence;' but we do not think it follows that it ought to be held that, where the suit is based upon a tort, or is one for un-liquidated damages, this rule would obtain, because it does not fall within the reason of the rule as announced in the case above cited. Indeed, it seems to be intimated in that case that such would not be the rule where the cause of action was, as here, for unliquidated damages. The transaction under consideration in the ease above referred to was one frequently and commonly occurring in com mereial dealings, and seems to be based upon this idea. In the present case, there was no transfer or guaranty of said claim for damages, unless it arose out of the transaction itself.

In two of the cases referred to by appellant to support its contention, to wit, Kenedy Town & Development Co. v. First Natl. Bank, 136 S. W. 558, and Leahy v. Ortiz et al., 8S Tex. Civ. App. 314, 85 S. W. 824, there were not only transfers of the account so assigned, but written guaranties thereof as well. And in the case of Vaughn v. Farmers’ & Merchants’ Nat’l Bank of Alvord et al., 126 S. W. 690, the transaction is not fully stated, so that it cannot be determined whether or not there was a written transfer and guaranty therein of the claim. So far as we are advised, the exact question here presented is an open one, never having been passed upon by our courts; but we think, in the absence of an express guaranty of payment of the account in the present case, that none existed, and that therefore there was no privity between the defendants Martin & Co. and Gohlman, Lester & Co., for which reason we think that they were not liable on the alleged guaranty, and therefore Gohlman, Lester & Co.’s plea of privilege was properly sustained.

The other assignments in appellant’s brief have been fully considered by us, but are not deemed well taken, and hence are overruled.

Finding no error in the record, the judgment of the court below is affirmed.

Affirmed.


author: C. J.

text:
    WILLIAMS et al. v. WOODS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1914.)
    Elections (§ 48*) — Election District — Power oe County Commissioners.
    While the court of county commissioners has considerable discretion as to the mode of dividing a new county into election districts, an arbitrary division so as to give one set of officials control of the county polities by gerrymandering the district will not be upheld, particularly where the division lines practically deprived some voters of their right of franchise.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 42; Dec. Dig. § 48.]
    Appeal from District Court, Duval County; W. B. Hopkins, Judge. .
    Suit by Charles H. Williams and others against S. H. Woods and others. From a judgment denying a temporary restraining order, plaintiffs appeal.
    Reversed and remanded, with directions.
    Terrell, Walthall & Terrell, of San Antonio, Dougherty & Dougherty, of Beeville, and Perkins, Leslie & McCampbell, of Alice, for appellant Williams. Hicks, Hicks & Teagarden, of San Antonio, for appellees Woods and others.

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

   C. J.

The appellants, Charles H. Williams, Rafael H. Palacios, John B. Peal, and Casamiro Salinas, applied to the district court of Duval county for a temporary order restraining S. H. Woods, county judge, and-J. W. Shaw, A. Parr, E. Carrillo, and J. M. Corkhill, county commissioners, of Duval county, and O. G. Allen, N. E. Martinez, J. C. Wall, H. B. Roach, S. C. Navarro, and Juan Saens, presiding officers of an election ordered by said judge and commissioners to be held on January 15, 1914, for the election of officers and location of the county site of Dunn county, which was established by an act of the Thirty-Third Legislature, from holding said election. The restraining order was sought to prevent an election before the merits of the cause could be inquired into on a final trial. Evidence was heard by the trial judge¡ and the restraining order denied. An appeal has been perfected to this court from the order refusing the temporary injunction, and upon application of appellants this court has granted a writ of injunction to prevent an election while this cause is pending before this court.

It appears from the petition that by the act of the Legislature creating Dunn county, the commissioners’ court of Duval county was authorized and directed to lay off and divide Dunn county into four convenient commissioner’s precincts, and not less than four convenient justice’s precincts, and to designate convenient places throughout the county for voting boxes; that the commissioners’ court, on December 22, 1913, had divided Dunn county into four commissioner’s precincts, into six justice’s precincts, and six election precincts; that the division so ordered was “arbitrary, unfair, unjust, and unlawful,” because of the great disparity in the area, property, and population of the commissioner’s precincts, precinct No. 1 having approximately 150,000 acres and including in its boundaries about one-half of the town of Benavides, precinct No. 2 having about 38,000 acres, precinct No. 3 about 40,000 acres, and precinct No. 4 about 354,000 acres, including in its boundaries a part of the town of Benavides and the town of Realitos; that precinct No. 1 has about 2,600 inhabitants and 300 qualified voters, precinct No. 2 has about 325 inhabitants and about 50 qualified voters, and that precinct No. 4 has about 1,600 inhabitants and 200 qualified voters; that the precincts are so divided that 120 voters will elect two members of the commissioners while the 500 voters in the other two precincts would only elect two commissioners; that there are about 80 miles of public roads in precinct 1, 7 in precinct 2, 25 in precinct 3, and 30 in precinct 4; that. commissioner’s precinct 1 is about 25 miles long and 10 miles wide, precinct 2 9¾ miles long and 6 miles wide; and that precinct 3 is 7½ miles wide by 15 miles long. It was alleged that the election precincts were laid off without regard to the convenience of the voters, and that the boundaries of the voting precincts were so vaguely defined that many voters are unable to ascertain in what precincts they reside. The disparity in population and acreage was practically admitted in the answer of appellees, and the following allegation was made: “And in this connection defendants would allege that the county of Dunn is inhabited by native Americans of the-Angle-Saxon blood and Mexicans of the Latin blood, and that the Americans live in closely settled communities of said county, and the Mexicans who have become citizens of this country live in other portions of the county in communities of close proximity to each other, and that it was the intention and desire of the commissioners’ court of Duval county to give to the Americans as nearly equal representation in the government of the county as was given to the.Mexicans, and in order to bring about such result the said defendants were compelled to make the divisions of the commissioner’s precincts as hereinbe-fore stated, and, unless such divisions were so made, either the Americans or the Mexicans would absolutely dominate in the governmental affairs of the county; and it was and is for this reason only that there appears a disproportion of the voters in the various commissioner’s precincts as hereinbefore set out, and that is the reason why said precincts have been so framed and the reason that a portion of the town of Benavides will be in one of the commissioner’s precincts, to wit, No. 1, and the other portion of said town will be in another commissioner’s precinct, to wit, No. 4, the town of Benavides having approximately 1,020 inhabitants.”

In the act creating Dunn county (page 86, Gen. Laws [1st Called Session, 33d Leg.]), it is provided that its territory should be taken from the territory of Duval county; that at as early a date as practicable it should “be the duty of the commissioners’ court of Duval county to employ a competent surveyor to run the lines of said county, make field notes thereof, and establish its corners and boundaries and lay off and divide said new county into four convenient precincts for the election of county commissioners and not less than four convenient precincts for the election of justices of the peace and constables, particularly defining the boundaries of such precincts, and also to designate convenient places-in said new county where elections shall be held, and appoint a presiding officer for such place designated in such new county for holding elections.” It will be noted that in laying off the different precincts the convenience of the voters was to be the object and aim of the commissioners’ court, but that object seems to have been lost sight of, and the commissioner’s and justice’s precincts were laid off in utter disregard of the rights of voters. The great disparity in acreage and population is sought to be justified only on the ground that the county should be so divided as to give the Anglo-Saxons a part of the precincts and the Mexican population the others. Convenience of the voter did not enter the consideration of the court, but divisions of the territory were made that will tend to foment strife among citizens of different races. The Legislature never contemplated a division upon any such lines. It is the object and aim of our form of government to assimilate the foreigner and transform him as quickly as possible into an American citizen, and divisions of territory of a county upon the basis of having one precinct American, another Mexican, and ianother Chinese or Japanese would merely tend to accentuate race differences and create strife and dissension. But, outside of all that, the convenience of the voters should not be disregarded in order to divide a county on racial or any other lines.

One of the chief ends desired in laying out and designating precincts in a county is to secure to all legal voters equal and ample opportunity to vote, and, if the precincts are so laid out that voters are left in grave doubt as to where they are to vote, that end is not regarded or kept in view. The division of the county, as indicated in this record, is the second one made by the commissioners’ court of Duval county, the former division having been set aside by order of this court on December 20, 1913, and yet on December 22d, with surprising haste, another division oi the county was made, in the town of San Diego, without being near Dunn county, and lines, courses, and distances prescribed without reference to natural or artificial objects, and without calls for lines of surveys. Voters, whether the numbers be great or small, residing in proximity to any of the unmarked, imaginary lines would be utterly ignorant of the location of their voting boxes. There are lines running “about” 6⅛ miles and “about” 6⅜ miles from a given point to an unmarked, unlocated point, and one of the commissioners swore that voters could locate themselves by whether they were above or below a pecan tree not called for in the field notes, and of whose location, with reference to the precinct line, no voter could know. This witness admitted that the boundaries of precincts 2, 4, and 5 were laid out without reference to natural or artificial objects, and stated that, if a man “did not know exactly where he voted, he should go and ask the presiding officers in which precinct he voted.” The right of an American citizen to vote should never be left at the arbitrary disposal of a presiding officer appointed by three men, two of whom are candidates for office in the new county, and one of whom is actively pushing the claims of Benavides to be the county seat.

That the convenience of voters cut no figure in the districting of the county is apparent from the admissions of at least one of the commissioners. He admitted that the offices of both were parceled out and allotted to certain men, and it is apparent that everything was done with that allotment in view. They named the candidates, and it was admitted that Realitos was not made a voting place in the precinct in which it was placed in order that the voters of that town might be deprived of the right to vote at their homes and forced to travel to Benavides in order to vote.

The northwest portion of the county is deprived of a voting box, as stated in one part of the testimony, because there were so few votes in that section, but in another part it crops out that no voting box was placed there so that they could appoint a presiding officer from that section to conduct the election at Realitos. The commissioner testified r “At the last redistricting we located a polling place at Chapa and did not locate one at Realitos. We did not locate it at Realitos because we located this one up here (indicating on map), and made all these people go across here and vote there, and Realitos was here. Concepcion was down here, and we just figured that we would make all .these voters go to Benavides to vote. When we first started out to organize this county, Mr. Ed. C. Lasater jumped into this fight 'against us and sent Mr. Temple Henry throughout Dunn county making speeches. Mr. Henry was running over the county in an automobile, and Judge Brooks, of Brooks county, was making speeches and telling these people that if they didn’t vote for them they would not credit them any more, and that they would make them pay up their accounts-; and then we just said to ourselves: If Mr. Lasater is in this fight and has got all these people down below digging stumps for him, and he proposes to vote these people at Realitos, we will not make their polling place at Realitos, and make these go to Benavides, and see that we get a fair deal, and see that nobody should vote a Brooks county tax receipt. That’s why we did it.” This was a frank confession that the precinct was established, not for the convenience of the voters, but to punish them for daring to advocate other men than those named by the commissioners’ court.

The mode of dividing the county of Dunn into commissioner’s precincts is not made with any reference to the convenience or desires of voters, but to make it possible that certain men shall obtain and hold the government of the county, perhaps for years. This court will not lend its aid in furthering the desires of any set of men to the detriment of the people, but will endeav-or with all the power placed in its hands to protect the voters of the county in the free and unrestricted right of suffrage.

A portion of Benavides, in which one of the commissioners lives and owns property, is placed in one commissioner’s precinct and the other portion in another, .and the circumstances indicate that the object in so dividing the largest town in the county is to use its votes in controlling two precincts, which could not be accomplished if it were placed in one precinct. The votes of Benavides that are placed in the precinct with Realitos will overcome the vote of the latter. In the former appeal involving the validity of the first districting of the county, the fact that both Realitos and Benavides were placed in the same precinct was condemned by this court. In order to meet that objection, Benavides was divided. That action did not relieve the establishing of the precincts of its unfairness. The object of both orders of the commissioners’ court was the same and cannot meet with the approval of a fair and unprejudiced court.

The law confides a sound discretion to the commissioners’ court of Duval county in dividing Dunn county into convenient precincts, and this court is not disposed to interfere with that discretion, unless, as in this case, and the former, it is exercised in an arbitrary, unfair, and unreasonable manner, with the undisguised purpose of furthering the aims and desires of certain men bent upon acquiring control of the new county. The commissioners’ 'court has the authority to divide the county into precincts, but it must be done with some degree, at least, of respect for the rights of the voters of the county.

The judgment is reversed, and the cause remanded, and the temporary writ of injunction herein granted is continued in full force and effect until the mandate of this court is issued, restraining appellees from ! holding an election with the county divided as it is.


author: HENDRICKS, J.

text:
    MOORE v. KELLEY.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    On Motion for Rehearing, Jan. 24, 1914.)
    1. Bkokers (§ 67) — Compensation.
    A broker authorized to sell or exchange property is not entitled to compensation from his principal,' where he receives compensation from the purchaser.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 52-54; Dec. Dig. § 67.]
    2. Brokers (§ 65) — Compensation — Fraud by Broker.
    Defendant placed land with plaintiff for sale on commission and instructed plaintiff to report to him any offers of a cash sale, and plaintiff found a purchaser for defendant’s property in W., who told plaintiff to find a purchaser for defendant’s land, and that he would buy it and immediately resell. W. procured an oral option from defendant for the purchase or exchange of defendant’s land, and about the same time plaintiff found another cash purchaser for the land which defendant was to exchange to W., without communicating such cash offer to defendant, however; whereupon W. exchanged land with defendant and immediately accepted the cash offer for defendant’s land, and the cash purchaser of the land from W. paid plaintiff a commission. Held, that plaintiff’s failure to communicate the cash offer to defendant was a fraud upon defendant, precluding recovery of commissions by plaintiff.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    3. Principal and Agent (§ 84*) — Good Faith oe Agent.
    An agent who fails to disclose any fact which would naturally influence his employer’s conduct or acts adversely to his employer is guilty of a fraud upon him, so as to forfeit his right to compensation.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 221; Dec. Dig. § 84.]
    On Motion for Rehearing.
    4. Appeal and Error (§ 712) — Record.
    An ex parte document not made a part of the appellate record cannot be considered on appeal.
    TEd. Note. — For other cases, see Appeal ■ and Error, Cent. Dig. §§ 2951-2954; Dec. Dig. § 712.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    Action by Ed Kelley against N. B. Moore. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    (Perkins & 'Perkins, of Snyder, for appellant. Higgins & Hamilton and M. E. Ros-ser, all of Snyder, for appellee.

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

   HENDRICKS, J.

We make the same disposition of the motion to strike the statement of facts and bills of exception in this cause as we made in the cause of Beaver v. Wills, decided December 20,- 1913; the grounds of the motion in both causes being the same, except that in the motion in the other cause a ground for suppressing the statement of facts on account of two separate statements, having been presented in that record (one with reference to a plea of privilege and the other with reference to the merits), is not presented in this record for the purpose of suppressing the statement.

The appellee, Kelley, a real estate agent, sued the appellant Moore in the county court of Scurry county, Tex., alleging that he effectuated a sale of the latter’s land, having found a purchaser of same at a price of $10,000 in trade and $5,000 in cash, upon a commission of 5 per cent, upon the amount realized in trade and 2½ per cent, upon the amount realized as cash by said Moore for the sale of his land.

The appellant, additional to other things pleaded by him, alleged, in substance, that appellee acted in bad faith with reference to the representation of his interests and was guilty of a double agency between him and the purchaser of the land, and received certain offers for said land which were not communicated to appellant. The appellant asserts that the following spe'cial instruction should have been given, which was not sufficiently covered in the main charge: “You are instructed in this case that if you believe from the evidence that Ed Kelley was the agent of N. B. Moore during the months of December, 1912, and January, 1913, and that while so acting as N. B. Moore’s agent for tlie sale of Moore’s land located in Garza county, Tex., he, Kelley, received an offer or offers to buy the said land of said Moore, and that Kelley did not disclose such offers to Moore, you are instructed to return your verdict in favor of the defendant, although you might believe that Ed Kelley intended no fraud on the said Moore.” He also says that the verdict of the jury is contrary to the law and the evidence, for the reason that his allegations of fraud in regard to appellee’s agency were so clearly established that the jury should have been peremptorily instructed, for the reason, as suggested by his proposition, “when an agent claims a commission by virtue of having procured a purchaser for his principal’s land, and the evidence plainly shows that he concealed material facts of vital importance from his principal, it is the duty of the court to instruct the jury to return a verdict in favor of the defendant.”

Moore was the owner of the land, and Kelley was his agent for the purpose of selling the same upon a commission contract of 2½ per cent, commission upon the cash, and 5 per cent, commission on trade, to be realized upon the sale. Kelley testified: “I had this Moore land listed with me somewhere between the 1st and 15th of July. Mr. Moore told me on this trade if I got any cash offer to bring it to him. I submitted no entire cash offer to him. I did not submit any offer to him of part cash and the rest in notes.” Moore, the owner of the land also testified that he instructed Kelley, the agent, that if he received any cash offer for the land to bring the same to him.

Kelley found a purchaser of the land in one Wellborn. When he first spoke to Mr. Well-born with reference to purchasing or trading for the Moore property, Kelley says that Wellborn “told me to find a purchaser for the Moore land. He said he would buy it and turn it immediately. He said before he would make the deal I would have to find some one to trade the Moore land to.” Wellborn had a business house and a residence in the town of Snyder, the county seat of Scurry county, when he desired to put in on the deal with Moore at the price of $10,000. The list price made by Moore to Kelley, the broker, was $15,000 and whatever valuation was placed upon the property as a part of the consideration, the remainder was to be paid in cash; Moore, however, as stated, instructing Kelley, if he secured an offer entirely of cash, to bring the same to him. After Kelley’s conversation with Wellborn, and in pursuance of Wellborn’s statement that before he would make the deal he would have to find some one to trade- the Moore land to, Kelley found one Boren, who at first it seems agreed to pay $13,000 for the property, which proposition Kelley immediately communicated to Wellborn and which Wellborn accepted. Boren, however, withdrew his offer, renewing it in another form and upon a different consideration, which Wellborn refused. After this, Well-born procured an option, so called in this record, from Moore, upon terms not stated for the purchase or trade for the latter’s land. This was an oral arrangement between Moore and Wellborn without any consideration whatever, and we gather conclusively that it was not binding on either party. During the pendency of this oral option, Kelley found another purchaser, one Pete Scoggins, for Wellborn at $13,000 for the land, without communicating the offer to Moore. Wellborn had told Kelley that he would take $13,000 for the Moore property in the event that he could trade his business and residence property in Snyder, with the additional cash for the land, and Wellborn immediately accepted the Scoggins offer; the former closed a deal with Moore on the basis of $15,000, valuing his property at $10,000 and paying $5,000 in cash. Well-born had also informed Kelley that he would take $2,000 less than the whole amount of the consideration from him to Moore. Kelley says that Wellborn “told me I would have to look to the other man for my commission as he [Mr. Wellborn] was taking $2,000 less than what he was giving for it. I got $325 commission on the Wellborn-Scoggins deal” — the commission was paid by Scoggins. Of course Kelley admits that during this period he was representing Mr. Moore as his agent.

It is thoroughly settled in this state, and the weight of authority outside of this state is to the effect, that a broker acting without the knowledge of his principal, as agent for the sale or exchange of .the principal’s property, and receiving compensation from the purchaser, is not entitled to compensation from the principal. Mechem on Agency, §§ 643, 698; Armstrong v. O’Brien, 83 Tex. 635, 19 S. W. 268.

The case of Armstrong v. O’Brien, 83 Tex., supra, in so far as it is pertinent to the proposition involved here, is as follows; The executors of an estate employed agents to sell the land of the estate. Under the will of the testator, it seemed that the land could only be sold for cash. The agents communicated with one party with reference to certain land he had for sale for the executors —Dart being another real estate agent in another county. The correspondence between the respective agents developed this condition; Dart found Lutcher & Moore as purchasers for the property, but the latter were unable to pay the cash consideration prescribed in the will as a limitation upon the sale of the property, but were only able to pay half cash, the balance to be evidenced by deferred vendor lien notes. Dart arranged to hypothecate the notes so that the full cash consideration could be realized to the executors, but the latter refused to consummate the deal. It seems that Dart and the agents of the executors agreed that the deed would be made to Dart, and Dart was to sell to Lutcher & Moore, and Dart, as the payee in the notes, to negotiate them. The executors’ refusal to consummate the trade was not on account of the nature of the transaction — of course they were receiving all cash —but on the ground of an increased value in price which they claim they placed upon the property. Dart was to receive a commission from Lutcher & Moore, to be evidenced by an increased price he placed on the. land in the sale from him to the former. There was evidence suggesting that the agents of the executors and Dart had an agreement between them to divide both commissions, the one Dart was to receive from Lutcher & Moore, and the commission O’Brien and Johns, the executors’ agents, were to receive from the latter. The Supreme Court said: “It is well settled that a person cannot act in the capacity of agent for both the buyer and seller, and receive commissions from both: and from principles of public policy, such an agent would not be allowed to recover compensation from either party unless he should so act with the full knowledge and consent of both principals. * ⅜ ⅜ It makes ño difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith.” In this case a special charge was reguested which the court refused, embodying the foregoing principle, and the Supreme Court further said: “There was evidence tending to show that Dart was acting for O’Brien and Johns in assisting them to obtain a purchaser for the land, and that there was an agreement between them to divide commissions, which were to be collected both from the executors, who were the sellers, and from Lutcher & Moore, who were the buyers, and the charges requested should have been given * ⅜ * ; and it would be inconsistent with O’Brien’s duties to his principals to sell the land * * * to Dart, ⅜ ⅜ * if Dart was acting in the capacity of agent with O’Brien, and to resell them to Lutcher & Moore for a profit or commission.”

Of course, the Supreme Court ease quoted from and the case at bar are not strictly together upon the facts. We are inclined to think, however, that the similarity is considerable. In that case, Dart, it is true, was to constitute himself a vendee for the purpose of effectuating the deal on account of the cash consideration prescribed in the will, which was in the chain of title. In the case at bar, the testimony is quite suggestive that he would not take the land from Moore unless Kelley found him another purchaser, which Kelley did in one Scoggins. Of course this assisted the deal between Moore and Wellborn, and appellee contends that this being true, and the fact that Wellborn did not pay Kelley any commission and that Scoggins did, eliminated any fraud upon the part of Kelley. While in the Supreme Court case Dart would have been only a nominal purchaser, if the executors of the estate had consummated the deal, and in this case it may be that Wellborn was a real purchaser, the incompatible and inconsistent position Kelley places himself in, in regard to his agency, was that he was instructed by his principal, and it was a part of his contract, to submit cash offers made to him from a prospective purchaser to Moore, and which in this instance he failed to do. It may be that the Boren matter with reference to the offer of $31,000 does not assist the proof of appellant’s issue, and should not be considered except as corroborative of intent. The oral option between Wellborn and Moore was, of course, worthless. As long as the option existed and the trade was not finally consummated of course Kelley had no commission. There was a chance for a double commission, and, as between Kelley and Moore, there had to be another purchaser before Wellborn would consummate his deal with Moore. It is conclusive that if Well-born had paid Kelley a commission, Kelley could not recover, if he failed to communicate his relation to his principal.

We believe the policy of the law underlying the legal principle, with reference to a strict representation of the interests of the principal by the agent, precludes the right of recovery on the part of Kelley. If Wellborn agreed to sell the ■ property he was getting from Moore for $2,000 less than the recited consideration between him and Moore, it was evidently based upon a real valuation he placed upon his business house and residence in Snyder. Moore said that he/ considered the $13,000 offer of Scoggins to Wellborn, which he knew nothing about until he conveyed his land to Wellborn, was a better proposition than the trade with Wellborn. Appellee seems to think that because Moore and Well-born traded upon an agreed valuation in pursuance of an oral option, and that Kelley received his commission from Scoggins, and not from Wellborn, all fraud is eliminated. However, if Moore and Wellborn even agreed on $15,000 cash, and the latter actually paid it to the former, and also paid Kelley $325 commission, Kelley could not recover commissions from Moore unless Moore knew such fact before the trade was closed. “It makes no difference that the principal was not in fact injured or that the agent intended no wrong, or that the other .party [the purchaser] acted in good faith.” It is not specifically stated in the testimony that Wellborn received $13j000 in cash, but appellant asserts in his statement that Scoggins’ offer was $13,-000 cash, and it is not denied by appellee, and we construe the record conclusively — the Scoggins deal was cash. Appellee contends that his relationship with Wellborn and Scog-gins js not incompatible with his duty to Moore.

“An agent is held to uberrima tides in his dealings with his principal; and, if he acts adversely to his employer in any part of the transaction, or omits to disclose any intent which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services.” Murray v. Beard, 102 N. Y. 505, 7 N. E. 553. Both Wellborn and Moore were interested in a cash proposition for the .land; Moore had instructed Kelley, which the latter admits, if he received such an offer to report the same to him. Wellborn, with this in view, obtains an oral option from Moore, and Kelley, acting with Wellborn, attempts to find another purchaser for cash.for Wellborn, and does so, and omits to disclose the fact of a cash purchaser to Moore, whom he still represents, and in violation of the very instructions given him. He knows that Wellborn will take $2,000 less for the land if he can get the cash; a reduction of $2,000, of course, to apply on the value of the Snyder residence and business house, which he was trading to Moore at $10,000. Both Wellborn and Moore being interested in procuring a cash purchaser for the land, Kelley necessarily, in attempting to represent both parties in obtaining such a cash purchaser, placed himself in an incompatible position — at least to that extent.

The case of Kinsland v. Grimshawe, 146 N. C. 397, 59 S. E. 1001, cited by appellee as to some features, and superficially examined, may evidence an analogy, but, properly sounded, we do not believe it applies. The landowner in that case employed the broker to sell on certain terms, and the broker found a purchaser who was buying for speculation, and an option contract was finally consummated in writing upon a valuable consideration, the landowner agreeing to convey to the purchasers “or their assigns at the price and according to the terms of May 27, 1903; ” and the landowner executed the deed to an assignee of the purchaser under the option contract, and not directly to the as-signee, the property having in the meantime been sold by the broker for the option contract purchaser, and upon an agreement with the broker for a commission. The Supreme Court of North Carolina said in that case, 146 N. C. 402, 59 S. E. 1002: “Instead of plaintiff’s contract with Graves [the option contract purchaser]! preventing a sale, it was conducive to it. He was, in a certain sense, ‘serving two masters,’ but both were working to a common end.” It may be true in this cause that Kelley in working for Wellborn it was conducive to the trade Moore had on with Wellborn, but here Well-born wanted a cash purchaser in order to complete the deal, and Moore had also instructed Kelley if he procured one to report it to him. Wellborn says: “I am not sure that I had reached an agreement with Scog-gins-before I told Moore I would take the land. ⅜ ⅜ ⅜ I was pretty sure Scoggins would take it before I traded with Moore [probably meaning the final word to Moore that he would consummate the verbal option]. * * * This option I had with Moore was for the purpose of raising money, and if I could raise it I would trade with him.” Wellborn again says: “Kelley interested me because of the fact that those fellows would take it off my hands. * * * I did tell Mr.

Kelley I would let him have all he could make over $13,000.” Here they were not altogether working to. a “common end” as in the Kinsland-Grimshawe Case, supra. Kelley and Wellborn were working to a “common end,” but Moore did no.t participate. “It is also a fundamental duty of the agent to obey all of the reasonable and lawful instructions given him by his principal.” Mechem on Agency, § 473. It was Kelley’s duty to report a cash purchaser to Moore for his consideration; it was Wellborn’s desire also to obtain a cash purchaser for Moore’s land, which he probably would not take from Moore unless he was so procured, and at this point the antagonism of interest and position arose, Kelley procuring the excess in the price of the land by a direct commission from Scoggins. It may be that Kelley, by his conduct, intended good faith, but we think the law nevertheless condemns it, and the cause is reversed and rendered in favor of appellant against appellee, and for all costs.

Reversed and rendered.

On Motion for Rehearing.

The appellee in this cause, in the motion for rehearing, insists that we misunderstood the statement of facts in concluding that the deal between Scoggins and Wellborn, for the property sold by Moore to Wellborn, was a cash transaction, and appends to the motion aliunde evidence and an affidavit as a presentation of the transaction. Wellborn, who had the oral option with Moore, testifies that it “was for the purpose of raising money, and if I could raise it I would trade with him,” meaning Moore. Kelley, the appellee, in referring to the Wellborn-Scoggins deal, whereby Wellborn sold the Moore land to Scoggins, testified that Wellborn “realized something near $13,000 for the ranch property in Garza county that he got from Mr. Moore.” Wellborn further said: “In letting the Moore land go at $2,000 less than he paid for it, he figured he could buy another piece of property that would suit him better.” The serious and important issue in this cause was a complaint of the violation of instructions by Moore to Kelley to report offers of a cash transaction and was specifically raised by the appellant, and the argument in his brief was based upon the theory, as we construe it, that Scoggins’ offer and trade with Weliborn constituted a cash transaction. We construed the record conclusively, and think it a fair and reasonable construction from the testimony that the same was a cash transaction, and we are compelled to act upon the record as we find it.

As stated by us, in the ease of Kell Milling Co. v. Bank of Miami, 155 S. W. 328, where stenographer’s notes, upon motion for rehearing, were attempted to be adduced as evidence of the real transaction: “The consideration of an ex parte document to the extent of basing a review upon same would of course be highly improper.” If we considered such matters we would be constantly reviewing cases upon appeal, not upon the record, but upon ex parte statements of fact, which, as a matter of policy, would lead to inextricable confusion and destroy the purpose and province for which this court was created. Though we find that the record is compatible clearly with that conclusion of fact and excludes any other (and upon reconsideration of the statement of facts our view is strengthened in this respect), however, if we did conclude something that the record does not show, that is, that Scoggins’ deal was part cash and part something else, we are not sure as a result of the principle, based upon the duty of agent to principal in protecting the latter’s interest, that the result of this appeal would have been different, which, however, we do not decide. We think the legal merits of this case have been solved, and the motion for rehearing is in all things overruled.


text:
    HOUSTON & T. C. R. CO. v. MENEFEE.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 10, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. TRIAL (§ 260) — Instructions—Refusal.
    The refusal of charges covered by those given is not error, this being particularly true where the charge refused imposed a greater burden on the requesting party than the ones given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    2. Master and Servant (§ 295) — Injuries to Servants-Triaí>-Instructions.
    In a personal injury action by a servant, an instruction on assumption of risk which fails to except from the general definition of “assumed risk” those resulting from the master’s negligence is properly refused, being misleading and erroneous.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.]
    3. Damages (§ 132) — Personal Injuries— Verdict — Excessiveness.
    In a personal injury action, where plaintiff, a man of 37 years, earning about $130 a month, claimed that the injury had caused ermanent paralysis of his legs, a verdict of 15,000 held not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action by J. A. Menefee against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    V. B. Hudson, of Bryan, Will C. Perry, of Franklin, Baker, Botts, Parker & Garwood, of Houston, and Stribling & Stribling, of Waco, for appellant. Woods & Harris, of Houston, and H. S. Morehead, of Franklin, for appellee.

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

   KEY, C. J.

This is a personal injury suit, the trial of which resulted in a verdict and judgment for the plaintiff for $15,000, and the defendant has appealed.

On the occasion in question the plaintiff was switch foreman in the defendant’s yard at the town of Hearne, and while he and the other members of the crew were attempting to place an engine and tender on the main track of defendant’s road by running it onto and along what is known as a passing track, such engine and tendel’ were derailed, and as a result of which the plaintiff alleged that he sustained certain injuries. In the yard in question the defendant maintained an interlocking plant. The plaintiff alleged that the defendant’s employé who was operating the interlocking plant was guilty of negligence in giving the signal and notifying the plaintiff and his crew that the tracks were properly lined, so that the engine and tender could enter upon the passing track and go onto the main track, and was also guilty of negligence in taking away and changing the main line switch before the engine and tender had stopped.

With the possible exception of the twelfth paragraph, the main charge of the court comprised what we regard as a full and reasonably accurate statement and presentation of the law of the case; and, in addition thereto, the court gave four special charges requested by the defendant. But one complaint is urged against it, and that is that there was no testimony tending to show that the employé who was operating the interlocking plant took away and changed the main' line switch before the engine and tender had stopped, and therefore it was error for the court to submit that question to the jury. We overrule that objection, and hold that the plaintiff submitted testimony which justified the court in submitting that issue.

Appellant has also assigned error upon the action of the court in refusing to give special instructions Nos. 2, 6, 7, and 8. No. 2 embodied an instruction to the effect that if the jury found that if the injury complained of was caused by the plaintiff’s negligence in giving the engineer the signal to move the engine forward along the passing track before the operator of the interlocking plant had time to line the tracks, and found that the defendant was not guilty of negligence, 'tlien to return a verdict for defendant. The court had already instructed the jury that if they did not find that defendant was guilty of negligence as to one or more of the issues submitted, to return a verdict for it, and therefore it was not error to refuse the instruction requested. In fact, the court’s charge in that respect was more favorable to the defendant than the refused instruction, because the former required a verdict for the defendant if it was not guilty of any act of negligence, while the latter, in order to justify a verdict for the defendant, required a finding, not only that it was not guilty of negligence, but also that the plaintiff was himself guilty of negligence.

Instruction No. 6 related to the question of assumed risk, and was properly refused, because it failed to except from the general definition of assumed risk such risks as result from the master’s negligence. Without that qualification, that instruction would have been misleading and erroneous. Railway v. Kelly, 98 Tex. 123, 80 S. W. 79. Moreover, the court instructed the jury correctly upon the subject of assumed risk, and the requested instruction was properly refused.

Special charges Nos. 7 and 8, relating to the question of assumed risk as to latent defects, were properly refused, because, in so far as they correctly stated the law, they were embraced in the eighth paragraph of the court’s charge and appellant’s requested instruction No. 9, which was given.

The only other question presented in appellant’s brief is the contention that the verdict is excessive. At the time of the injury the plaintiff was 37 years of age, and was earning about $130 per month. He sustained no external injury of any consequence, but claimed to have been internally and permanently injured to such an extent as to paralyze his legs. At the time of the trial he was still on crutches, but several physicians who had examined him gave it as their opinion that the impaired use of his legs was the result of nonuser, and not from any traumatic injury. On the other hand, several other physicians who had examined him gave it as their opinion that the impaired use of his legs could have been caused by such an injury as he claims to have sustained, and that if so caused, it would probably be permanent. In view of this condition of the testimony, while the verdict is large, we are not prepared to hold that it is excessive.

While the assignments presented in appellant’s brief do not controvert the proposition that defendant’s employé operating the interlocking plant was guilty of negligence, and while it is not contended in this court that the plaintiff was guilty of contributory negligence, we deem it proper to state that the verdict of the jury, which in effect finds that the defendant’s employé was guilty of negligence in the respect referred to, is sustained by testimony; and we find no evidence in the record that would justify a finding that the plaintiff was guilty of contributory negligence.

No error has been shown, and the judgment is affirmed.

Affirmed.


author: RICE, X

text:
    HOUSTON & T. C. R. CO. v. BARLETT.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 10, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. New Trial (§ 102) — Newly Discovered Evidence-Diligence.
    In a personal injury action by a switch-man against a railroad company, a new trial cannot be granted, on the motion of defendant, on the ground of the newly discovered testimony of the yardmaster, who was with the towerman at the time of his alleged negligence in sending a switch engine into an open switch, for proper diligence on the part of the railroad would have disclosed the knowledge of the yardmaster.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    2. New Trial (§ 99) — Newly Discovered Evidence.
    A new trial will not be granted for newly discovered evidence which is cumulative, and which would probably not have changed the result.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. § 99.]
    3. Master and Servant (§ 258) — Action eor Injuries — Petition—Sueeiciency.
    In a personal injury action by a servant of a railroad company, where the acts of negligence relied on for recovery, and which were alleged to be in violation of the company’s rules, were particularly and specifically set out, it was unnecessary to set forth the rules or their substance.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig-. § 2581
    4. Damages (§ 132) — Personal Injuries— Excessive Award.
    An award of $10,000 damages in favor of a switchman 30 years of age, who was earning over $100 a month, is not excessive, where his right leg was broken at the ankle, resulting in flat foot, and his left leg was so injured that he was unable to use it for any considerable length of time, 12 months after the accident, and the injuries appeared permanent.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dee. Dig. § 132.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action by J. R. Barlett against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Y. B. Hudson, of Bryan, Perry & Woods, of Franklin, Baker, Botts, Parker & Garwood, of Houston, and Stribling & Stribling, of Waco, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for ap-pellee.

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

   RICE, X

Appellee brought this suit to recover damages for injuries suffered by him while in the discharge of his duties as switch-man in the employ of appellant at I-Iearne, on December 8, 1911, on account of being thrown from and run over by a switch engine upon which he was riding, occasioned, as alleged, by false and improper signals given to the switch crew by the towerman in charge of the interlocking tower (jointly used by the International & Great Northern Railway Company and appellant), to the effect that the switch was open, thereby causing the accident. After a general denial the defense urged was assumed risk and contributory negligence. A jury trial resulted in a verdict and judgment in'behalf of appellee in the sum of $10,000, from which this appeal is prosecuted.

This is a companion case to that of Houston & Texas Central Railroad Co. v. X A. Menefee, 162 S. W. 1038, this day passed upon by this court in an opinion handed down by Mr. Chief Justice Key, and is based upon the same facts; the negligence alleged being the same in each case. The main charge of the court in both eases is identical; hence we refer to the former opinion as disposing of the objections made thereto in this case.

The court did not err, in our opinion, in refusing a new trial on account of the newly .discovered evidence of Plannigan, for the reasons: (1) That sufficient diligence was not exercised to discover his testimony; (2) because the same was cumulative; and (3) because, in our opinion, it would not probably change the result on another trial. The interlocking tower as I-Iearne was jointly used by appellant and the International & Great Northern Railway Company, and Elannigan, for whose testimony the new trial was sought, was yardmaster of the latter company at the time of the accident, and appears to have been in the tower when it occurred, making out his report, which it was customary for him to do about that time of the evening, and this fact was known to the agents of appellant. The Menefee Case was tried at the same term of the court, and within two days after the trial of this case, in which he appeared and testified as a witness, contradicting the testimony of appel-lee’s witnesses to the effect that Houghton, the towerman, signaled the switching crew with his lantern, and called to them that the track was all right, properly lined, and to come ahead. Epps, a witness for appellant had testified that Houghton, immediately after the accident, had given a similar account thereof; and, notwithstanding Givens, the appellant’s assistant claim agent, investigated the accident soon after its occurrence, he failed to make any inquiry of Elan-nigan as to how it had occurred. It is true he states that he did not know that Elanni-gan knew anything about it; but we think due diligence on his part would have required an inquiry at least from Flannigan, the yardmaster, as to what, if anything, he knew about the accident.

Appellant excepted specially to the < petition on the ground that the rules of defendant alleged to have been violated were not set forth nor their substance given, which exception was overruled. We think the court did not err in such ruling, because the acts of negligence relied upon for a recovery, and which were alleged to be in violation of such rules, were particularly and specifically set out.

We think the evidence sufficient to justify the verdict, and overrule the fifth assignment complaining thereof. The judgment, in our opinion, is not excessive. The facts show that plaintiff was 30 years of age, earning for $110 to $115 per month; that his right leg was broken at the ankle, resulting in what is known as flat foot, and his left leg was so injured that he was unable to use it for any great length of time at the time of the trial, some 12 months after the accident; and physicians testified that these injuries in both legs were permanent, and rendered him unfit to discharge the duties of switchman, which he had followed for many years.

The remaining assignments have been considered, and are regarded as not well taken.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.