author: SWEARINGEN, J.

text:
    HAMILTON v. HARRIS.
    (No. 6067.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.)
    1. Trial <⅜»203(1) — Instructions—Submitting Defenses. -
    It is error to fail to submit affirmatively to the jury a defense supported by pleading and evidence.
    2. Physicians and Surgeons ⅞=^15 — Liability for Negligence.
    A physician is not liable for injury to patient in using X-ray, if the cause of the injury was the abnormal hypersensitiveness of the patient’s skin, which could not have been discovered prior to the treatment.
    3: Appeal and Error <⅜=31068(4) — Harmless Error.
    In malpractice case, where the amount of the verdict, together with the extent of injuries, indicated that omission to limit jury to reasonable expenses for physicians, etc., was not harmful, the error was not reversible.
    4. Damages <⅜=>40(3) — Measure o.f Damages.
    In action for physician’s negligence, loss of business is a remote consequence for which the physician is not liable.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Action by J. A. Harris against Dr. W. S. Hamilton. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Hertzberg, Kercheville & Thomson, of San Antonio, for appellant. T. II. Ridgeway and T. M. West, both of San Antonio, for appel-lee.
   SWEARINGEN, J.

Appellee, J. A. Harris, brought this suit against Dr. W. S. Hamilton, the appellant, to recover damages for personal injuries alleged to have been inflicted upon appellee by the negligent application of X-rays to the body of appellee for the purpose of treating eczema, which application resulted in burning appellee. The cause was submitted to a jury in a general charge. There was a verdict and a judgment in favor of appellee against appellant for $2,500.

The cause alleged was that the X-ray is a dangerous agency; that appellant was negligent because he failed to protect, with a blanket of lead, or a composition of rubber and lead, appellee’s body from being burned, such protection being usual and customary; that the opening in the protecting blanket was too large; that the current applied by appellant was too much and too intense, making it too powerful; that appellant exposed appellee to the current for too long a time; and that appellant left the room in which the treatment was administered during the application of the X-ray, whereas he should have remained and watched the effect of the treatment. Injury, pain, suffering, loss of time, permanent injury, etc., were fully alleged.

Appellant answered by general demurrer, general denial, and specially alleged in defense that the injury to appellee was caused by the peculiar condition of appellee’s skin, which was alleged to be hypersensitive to X-ray current, and that this idiosyncrasy of appellee’s could not have been discovered by appellant prior to the treatment. Other defenses were pleaded, consideration of which is not invoked.

The facts are that appellee was severely burned by an X-ray current while being treated professionally by appellant, who was a practicing physician and an expert in treating skin diseases with the X-ray. The controlling issue of fact made by the evidence is whether the injury was caused by one or more of the acts of negligence alleged by appellee or whether the injuries were suffered because appellee’s skin was hypersensitive to the X-ray current. Naturally whether or not appellee did in fact have a hypersensitive skin was an issue. There was evidence of the extent of the injury and loss.

The first and second assignments assail the court’s general charge because it did not affirmatively submit to the jury appellant’s defense that the proximate cause of the injury was the hypersensitive skin of appellee.

The court’s charge defined “negligence” to be the failure to exercise ordinary care, defined “ordinary care,” and further instructed to find for appellee if the jury believed from the evidence that appellant was negligent as alleged and believed that such negligence was the proximate cause of the injuries; otherwise to find for appellant. The defense of abnormal skin made by appellant’s pleading and evidence was not affirmatively submitted. Appellant, by timely objection made in due £orm, doniplained of .this omissfion. The rule that it is error to fail to affirmatively submit to the jury a defendant’s defense, which' is supported by pleading and evidence, is established, and does not seem to be disputed by appellee’s counsel. M., K. & T. Ry. Co. v. MeGlamory, 89 Tex. 635, 35 S. W. 1058; Bailway v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538; Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; M., K. & T. Ry. Co. v. Renfro, 83 S. W. 21; T. & P. Ry. Co. v. Dawson, 34 Tex. Civ. App. 240, 78 S. W. 235; Johnson v. Johnson, 38 Tex. Civ. App. 385, 85 S. W. 1023; Dallas Ry. Co. v. Conn, 100 S. W. 1019; Epperson v. I. & G. N., 59 Tex. Civ. App. 66, 125 S. W. 117; Posener v. Harvey, 125 S. W. 356; M., K. & T. Ry. Co. v. Burk, 146 S. W. 600; Bangle v. M., K. & T. Ry. Co., 140 S. W. 374; Baker v. Williams, 198 S. W, 808; M., K. & T. Ry. v. Jamison, 27 S. W. 1090.

Neither is there any question that the issue that hypersensitive skin was the proximate cause of the injury was presented by appellant’s pleading and evidence. There is, furthermore, no pretense that this defensive issue was affirmatively submitted. The contention of appellee’s counsel, as we understand it, is that the affirmative submission of the defense would have been a charge upon the weight of evidence, inasmuch as the question of appellee’s hypersensitive skin is involved in the question of whether appellant was guilty of negligence, and that there was no evidence that appellee actually had the idiosyncrasy asserted by appellant.

If credited by the jury, the testimony of appellant himself, and of Drs. Herffi, Jackson, Wilson, Van Zant, and Martin, as well as the testimony of appellee’s witness Dr. B. E. Smith, is sufficient to authorize the jury to find that appellee did have a hypersensitive skin, and that this peculiarity was the proximate cause of the injury. We do not think the affirmative submission desired by appellant would have been a charge upon the weight of the evidence. A physician is not required to take precaution against a peculiar temperament or abnormal idiosyncrasy of which he had no knowledge and for detecting which there is no means. The evidence shows that appellant did not know of appellee’s hypersensitiveness, and that there is no way to ascertain such a peculiarity prior to the treatment. Bogle v. Winslow, 5 Phila. (Pa.) 136; 1 L. B. A. 720, note. We think the jury should have been told in appropriate language that, if they believe the proximate cause of the injuries to appellee was his abnormal hypersensitiveness, but for which the injury would not have occurred, a verdict should be returned for defendant.

The first and second assignments are sustained.

The foregoing also requires us to sustain the fourth, fifth, 'sixth, thirteenth, fourteenth, and fifteenth assignments, each o£ which presents a similar question. However, in. sustaining these assignments, we do not mean to approve the form of the special instructions requested. Wa merely hold that the defense should have been properly affirmatively submitted either in the main charge or, if not, in a special instruction if request is properly made.

The seventh assignment criticizes the court’s charge because it failed to limit the jury to reasonable expenses for physicians, medicines, hospital service, and nurses. In view of the evidence and the amount of the verdict, it does not appear that this omission from the charge was harmful to appellant, hence is not reversible error, but we suggest that the qualification or limitation requested should be made.

The eighth assignment urges error in the general charge for the reason that the jury were instructed to consider- both loss of time and loss of business as elements of damage. From this the jury might find a double damage. Besides, the loss of business is not pleaded, and, if it were, the loss of business is a remote consequence for which appellant could not be liable.

The eighth assignment is sustained, as are also the ninth and twelfth, which present a similar question.

The tenth assignment is overruled. There was evidence of impairment of earning capacity and of permanent impairment.

The eleventh assignment insists that a new trial should have been given because of remarks of appellee’s counsel in addressing the jury. The remarks were legitimate conclusions of counsel, and, in view of the evidence and verdict, not reversible error, though perhaps-unpleasant to appellant. The eleventh assignment is overruled.

The sixteenth assignment complains because the court refused to submit an issue of assumed risk. There is no. evidence that would authorize such a charge. There is no evidence that appellee knew or ought to have known the X-ray treatment was dangerous; dangerous (because powerful and insidious.

We overrule the sixteenth assignment.

The judgment of the trial court is reversed, and the cause remanded.
      <S=^For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    LOTT TOWN & IMPROVEMENT CO. v. HARPER et al.
    (No. 6050.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 29, 1918.
    Rehearing Denied June 19, 1918.)
    1. Fraud <§=>42, 46 — Pleading- — SUFFICIENCY.
    In an action on notes given for price of land, cross-hill, alleging that the notes were given in payment-for land on condition and under representations of plaintiff that the land would be irrigated adequately, and that the irrigation was not adequate, and further setting up the measure of damages, was demurrable for failure to allege that defendants were induced to enter the contract by the misrepresentations or to allege that plaintiff did not intend to irrigate.
    2. Fraud <§=>12 — Promises of Future Performance.
    Promises to perform an act in the future will not generally constitute fraud, although the propelling inducement to the execution of a contract, unless the promisor, when making the promise, intended not to perform it, and made it to defraud and deceive.
    8. Fraud <§=>59(3) — Damages—Measure.
    The measure of damages for fraud in misrepresenting lands sold is the difference between the contract price and the actual value at the time of contracting.
    4. Frauds, Statute of <§=>44(1) — Parol Promise.
    A parol promise of the vendor to have the land irrigated, which could not have been performed within one year, was in violation of the statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965).
    Appeal from District Court, Hidalgo County; V. W. Taylor, Judge.
    Action, by the Lott Town & Improvement Company against Corilla J. Harper and another. Judgment for plaintiff in part, and it appeals.
    Reversed, reformed, and rendered.
    John P. Gause, of Mercedes, and R. J. McMillan, of San Antonio, for appellant. Dawson & Anderson, of Corpus Christi, and Fred E. Bennett, of Mercedes, for appellees.
   SWEARINGEN, J.

Appellant, the Lott Town & Improvement Company brought this suit against appellees, Corilla and Ruth Harper, to recover the amount of a note for $7,-642.00, made April 8, 1910, together with interest and attorneys’ fees less credits indorsed upon the note, and to foreclose the lien of the vendor, expressly retained by recitals in the deed. The amount of the note and the lien were admitted by appellees, but they alleged a cross-action for damages caused them by the deceit of appellant. Special issues were submitted to the jury. Judgment was rendered in favor of appellant for $2,873.07, which sum the. judgment states is the difference between the amount due on the note, including attorneys’ fees, and the amount of damages appellees suffered by the deceit. The petition alleged a cause of action upon the note and for foreclosure of lien. The answer, as stated, admitted the appellant’s cause of action; but set up a cross-action for ■deceit against appellant and against several individuals and corporations, each of whom, it was prayed in the cross-bill, should be served with citation. But no citations were ever issued and none of the impleaded parties appeared, hence appellees’ suit upon the cross-action is limited to appellant.

The cross-bill fails to state a cause of action, could not be maintained against a general demurrer, and its consideration by the court may be fundamental error, as will appear from the following abbreviation of it; Paragraph 1 admits appellant’s alleged cause of action. Paragraph 2 qualifies the admission by adding:

“Note sued upon was executed as a part payment of the purchase price for said land, but upon the conditions and with the covenants hereinafter more fully set forth.”

Paragraph 3, with much detail, avers the efforts of appellants and their grantors to secure by contract, with others, the establishment of an adequate irrigation system, which efforts and contracts, it is alleged entitled appellees to sufficient water to irrigate their lands. Paragraph 4, of the cross-bill alleges that appellant represented itself to be the owner of the land sold to appellees at the time the sale was made. The purpose of the fifth paragraph was to allege the deceit which is the foundation, for this cross-bill. Said paragraph is, in substance: That at the time of executing and delivering said deed plaintiff (appellant) represented to the defendants (appellees) that said land would be irrigated by a canal system with adequate facilities for the proper irrigation of such lands for agricultural purposes, plaintiff representing to these defendants that said canal system would be permanent, thereby maintaining said lands as irrigated lands and at irrigated values. The sixth paragraph avers that appellant caused, the La Donna Canal Company to execute and deliver to appellees a contract to irrigate their lands, and that said representations, covenants, agreements, and undertakings on the part of appellant was a part of the consideration of said contract of sale and was a part of the consideration for the execution by the appellees of said note. The seventh paragraph sets1 out that the measure of damages is the difference between the actual value of the land without irrigation, $10 an, acre, and what its value would have been if adequately irrigated, $250 an acre. In the eighth, ninth, tenth, and eleventh paragraphs it is alleged that the La Donna Canal Company entered into a contract to furnish the irrigation, for executing which contract it was to receive $10 an acre for each acre agreed to be irrigated; that appellant became obligated to these ap-pellees to adequately irrigate their land; and that neither the appellant nor the La Donna Canal Company built an adequate irrigation system The Twelfth paragraph is that, by the breach of the contracts to .irrigate appellees’ land, appellant has damaged appellees in the sum of $60,000, which amount, it is alleged is the difference between the value of the land without irrigation and what it would be if irrigated as represented.

The facts are: The appellees came on an excursion train in February, 1910, to investigate the lands offered for sale by appellant. They inspected the land and saw the canals. The canals did not loot very promising to Corilla J. Harper, and, as she had been warned to inquire about the irrigation facilities, she told Mr. Scobey, the sales manager for appellant, that the canals did not impress her favorably. He replied that it was a new enterprise, just being installed, but said he would guarantee that the water supply would be sufficient. He explained to her that a canal company would give her its contract to_ furnish the water. Shortly thereafter, Gorilla J. and Ruth Harper, through their agent, executed a contract to buy the land from appellant and to receive the water contract from the Ra Donna Canal Company, and paid $1,500 cash as earnest money. Subsequently the deed, two notes for lite amounts, and the first cash payment were all made and the trade closed. Neither the deed nor notes mention irrigation or canal systems. One of the notes was paid when due. Interest and part of the face of the second note were later paid. The contract price for the land was $95 an acre for some of the lots and $90 an acre for the rest. The aggregate acreage purchased was 250.16 acres, and the aggregate contract price was $22,927.80.

The jury found, in answer to the sixth special issue, that the value of the land at the time of purchase by appellees, with the irrigation facilities as they actually were, was $150 an acre, or $37,524 for the 250.16 acres of land.

The evidence discloses further that at times Ra Donna Canal Company furnished ample water, but at times failed because the canals became choked with silt and water grass, and because of lack of fuel for their engines and because of breakdowns in the pumping machinery. This continued until a district irrigation system was organized and took over the equipment and obligations of the Ra Donna Canal Company in 1915, after which no further complaint is made of insufficient irrigation facilities.

The first assignment complains that the court refused to peremptorily instruct the jury to return a verdict for the full amount of the principal, interest, less credits indorsed on the note, and attorneys’ fees remaining due on the note sued upon and for foreclosure of the vendor’s lien sued for; and against the appellees, in favor of appellant, on ap-pellees’ cross-action. '

This assignment must be sustained. Appellant’s cause was admitted. The cross-bill fails to allege a cause of action. The contract represented by the deed and notes was performed by both parties. Appellees do not sue for a breach of that contract. But ap-pellees in their cross-action sue to recover damages for fraudulent representation. There is no allegation that appellees were induced to enter into the contract by reason of any misrepresentation by appellant. This ommission is fatal. 8 Enc. Dig. 370, E, 1; 12 R. C. R. 422, § 168.

Then again the alleged representations of appellant’s agent, Mr. Scobey, as stated in the case of Mid-Continent Rife Insurance Co. v. Pendleton, infra, “giving them their widest scope, amounted to a promise to perform certain acts in the future”; that is, furnish water for irrigating appellees’ land in the future.

“It is the general rule that a promise to perform an act in the future will not amount to fraud in the eyes of the law, although it may have been the propelling inducement to the execution of the contract, and, though it may have been totally disregarded, still it cannot be made the basis of a suit to avoid a contract.” Lem-mon v. Hanley, 28 Tex. 219; Jackson v. Stock-bridge, 29 Tex. 394, 94 Am. Dec. 290; Moore v. Cross, 87 Tex. 557, 29 S. W. 1051; Mid-Continent Life Ins. Co. v. Pendleton, 202 S. W. 769.

There is no averment in the cross-bill that appellant had no intention at the time of making the representation of having the lands furnished with water for irrigation; on the contrary, the cross-bill alleges, in detail, the efforts and steps taken by appellant to secure an adequate supply of water to these lands. Therefore the cross-bill fails to bring this case within the exception to the above-stated general rule, which exception is thus stated by Chief Justice Fly:

“There is, however, a recognized exception to the rule in Texas that if at the time the promise was inade it was the intention of the party making it to disregard it, and that he had no intention at the time of making it to perform it, but made it to deceive and defraud the other party, there would be a basis for a suit founded on fraud and deception. Railway v. Titterington, 84 Tex. 218 [19 S. W. 472, 31 Am. St. Rep. 39]; Railway v. Smith, 98 Tex. 553 [86 S. W. 322]; Ins. Co. v. Seidel, 52 Tex. Civ. App. 278, 113 S. W. 945; May v. Cearley, 138 S. W. 165; Chambers v. Wyatt, 151 S. W. 864.” Mid-Continent Rife Ins. Co. et al. v. Pendleton, above cited.

The first assignment is sustained.

The second assignment assails the judgment for want of evidence to- support it.

The judgment rendered is contrary to the law and facts in this: The measure of damage in this cross-action by appellees'is the excess of the contract price agreed to be paid because of the representations, over the value of the land as it actually was at the time the contract was made. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. The jury found, upon sufficient evidence, that the land was worth $150 an acre, or $37,524, with the canal system and available supply of water as they really were at the time appellees made the contract. The contract price, it is admitted, was $22,927.80. The facts therefore show that there was no excess of contract price over the actual value and that no damage to appellees was proven.

The second assignment is sustained.

The third assignment correctly urges that the court erred in overruling appellant’s special exception to the effect that the parol promise to have the land furnished with water for irrigation was in violation of the statute of frauds, inasmuch as it appears from the cross-bill that the promise could not have been performed within one year. V. S. R. C. St. art. 3965; Stovall v. Gardner, 100 Tex. 25, 94 S. W. 218; Eight Pub. Co. v. Moore, 46 Tex. Civ. App. 259, 101 S. W. 867.

We sustain the third assignment.

The fourth assignment complains of the admission of testimony that was clearly irrelevant and prejudicial. We do not deem it necessary to further discuss this assignment, but sustain it.

The fifth assignment complains of the court’s order overruling appellant’s motion to set aside the jury’s answer to the first special issue for want of evidence to support it.

We sustain the fifth assignment.

The sixth assignment is overruled because the testimony objected to was admissible to prove the alleged false representations.

The seventh assignment is sustained for the reason that) the testimony admitted over objection was wholly irrelevant.

The eighth assignment is sustained for the reasons given in our consideration of the first and second assignments.

The judgment of the trial court is reversed, reformed and here rendered for appellant for the amount of the note, including principal and interest, less credits indorsed on the note as of the dates stated, and for attorney’s fee. The total amount to be ascertained as of October 1, 1917, together with interest at the rate of. 6 per cent, per annum until paid, and for foreclosure of the vendor’s lien, for writ of possession, and for all costs.

Reversed, reformed, and rendered.
      <§=>For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    WOOD COUNTY v. LEATH.
    (No. 1956.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 27, 1918.
    Rehearing Denied June 29, 1918.)
    Counties ⅞=>74(3) — County Treasurer — Compensation.
    Vernon’s Say les’ Ann. Civ. St. 1914, art. 3873, provides that the county treasurer. shall receive commissions on the money received and paid out by him, said commissions to be'fixed by order of the commissioners’ court as follows: Eor receiving all money other than school funds for the county, not exceeding 2½ per cent, for paying out the same. Article 3875 provides that the commissions allowed to any county treasurer shall not exceed $2,000 annually. Held, that an order of the commissioners’ court, that the “county treasurer is allowed a commission on receipts and disbursements not to exceed $1,200 a year for the next ensuing year,” was not void for limitmg the amount of the commission to $1,200, nor because it did not fix the rate of the commission; it being clear that 2½ per cent, was intended.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Suit by Mrs. Lillie Leath against Wood County. Judgment for plaintiff, and the defendant appeals.
    Reversed and rendered.
    The suit was by appellee to reqover of appellant $2,525 which she claimed to be entitled to as commissions on moneys received and paid out by her as county treasurer. The trial was to the court without a jury. The appeal is from a judgment in appellee’s favor for $1,490.60.
    Having been elected county treasurer of Wood county, appellee qualified and entered upon her duties as such November 12, 1912; .and, having been re-elected in 1914, she qualified again in November of that year, and continued to discharge the duties of the office until November 16, 1916.
    For her services appellant paid appellee $1,500 a year for the first two years she served, at the rate of $1,500 a year for the first quarter of the first year of her second term, at the rate of $1,200 a year for the other three quarters of that year, and $1,200 for the second year of that term. The aggregate of the sums paid appellee for the four years she served was $5,475. The payments were made by authority of and in compliance with orders of the commissioners’ court of Wood county as follows:
    “February 16, 1912. It is ordered by the court that the county treasurer’s commission on amounts received and paid out shall not exceed $1,500 per annum.”
    “February 11, 1915. The county treasurer is allowed commissions as provided by law not to exceed $1,200 per annum.”
    “February 16, 1916. The county treasurer is allowed a commission on receipts and disbursements not to exceed $1,200 a year for the next ensuing year.”
    If the commissioners’ court had power to pass the orders set out, it was conferred by provisions in Vernon’s Statutes as follows:
    “Art. 3873. The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as follows: For receiving all moneys other than school funds, for the county, not exceeding two and one-half per cent. * * * for paying out the same.”
    “Art. 3875. The commissions allowed to any county treasurer shall not exceed two thousand dollars annually.”
    Appellee’s contention was that the statute conferred upon the commissioners’ court power to fix her compensation as county treasurer in no other way than by “a specific rate of commission on receipts and disbursements” by her; that neither of the orders so fixed her compensation; and therefore, and because they were, severally, attempts by the commissioners’ court to fix her compensation in another way, that each of the orders was void. The trial court sustained the contention, and, on the theory that the commissioners’ court had not by a valid order fixed the compensation to he paid appel-lee, held (it appearing that 2½ per cent, on the moneys annually received and paid out by appellee while she was county treasurer exceeded the maximum sum which could be paid a county treasurer under said article 3875) that appellant should have paid appel-lee ?2,000 for each of the four years she served as county treasurer. But the trial court further held that appellee’s right to recover the difference between the sums she should have received and the sums she did receive for her services during the two years of her first term as county treasurer and the first quarter of the first year of her second term was barred by the statute of limitations. Hence the judgment in appellee’s favor was for $1,400 and interest, instead of for $2,525, a,s otherwise it would have been.
    V. B. Harris and* Floyd Harry, both of Quitman, and M. D. Oarlock, of Winnsboro, for appellant. Jones & Jones, of Kerrville, and R. M. Smith, of Quitman, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

The trial court thought the commissioner's’ court meant by the order of February 11, 1915, to provide compensation for the county treasurer, not to exceed $1,200 per annum, by a commission of 2⅛ per cent, on moneys received and paid out by him. The trial court also thought the other orders were susceptible of a like construction, except that by the terms of the one dated February 16, 1912, the commissions to be paid were not to exceed $1,500; but he nevertheless construed them as showing the intention of the commissioners’ court to be:

“To fix and provide a rate of commission ultimately to he determined by the (commissioners’) court by the amount of receipts and disbursements per annum, which would produce and provide a sum and commission not to exceed the amount as provided in said orders, respectively, for one year.”

We agree it appeared that the intention of the commissioners’ court was to provide compensation for the county treasurer by a commission on moneys received and paid out by him, but we do not agree that the conclusion reached by the trial court that the order of February 11, 1915, was void because it limited the amount of the commission to $1,200 was correct; nor do we agree that the conclusion reached by the trial court that the other orders were void, for the same reason, and also because same did not fix the rate of the commission to be paid the treasurer, was correct.

It appears from the record that the conclusions of the trial court were based on Montgomery Co. v. Talley, 169 S. W. 1141, and Smith v. Wise Co., 187 S. W. 705.

The Court of Civil Appeals held the order dated March 30, 1910, in question in the Talley Case, to be void because it was an attempt by the commissioners’ court to compensate the county treasurer by means of a salary it fixed. The other order (the one dated June 8, 1911) in question in that case undertook to 'fix the compensation of the treasurer at one per cent., not to exceed $000 per annum, however. For the year beginning November 14,1911, and ending November 13, 1912, the treasurer retained $611.81, which was $11.81 more than the maximum amount of commissions provided by the order. The Court of Civil Appeals did not determine that the commissioners’ court was without power, having fixed the rate of • commission to be paid the treasurer at one per cent., to provide that the total of that commission should not exceed $600 per annum. What the Court of Civil Appeals thought about that matter was not indicated by anything in its opinion affirming a judgment for $11.81 in favor of the county, except the statement therein as follows:

“We think the trial court properly held that appellee had not converted any moneys of the county, and that the commissions retained b.y him, except the $11.81 excess for the year be^ ginning November 14, 1911, and ending November 13, 1912, were allowed him by law.”

If the statement, in view of the fact that Talley was not complaining of the judgment against him for the $11.81 excess over $690, should be said to have indicated what the court thought about the validity of the order, it was that it was not invalid because it understood otherwise than by a percentage on moneys he handled tb limit the compensation of the county treasurer to a less sum than that named in the statute.

In the other case referred to, Smith sued Wise county for a balance he claimed to’ be due him for his services as county treasurer from November 10, 1910, to November 16, 1914. It appeared that on February 16, 1907, the commissioners’ court made an order fixing the compensation of the county treasurer from November 28, 1906, to November 28, 1907, at such a commission as would amount, when added to all other sums received by him, to $1,600, and no more, for that year, and from November 28, 1907, at a commission of “1¾ per cent, for receiving and 1¾ per cent, disbursing county funds”; and thereafterwards made other orders as follows: February 12, 1909. That the county treasurer should “receive the same compensation that he received for the last two years, being $1,600 per year.” February 17, 1911. That “the treasurer’s salary be $1,600 per year, the same as last year.” February 11, 1913. That the treasurer be allowed a “salary not to exceed $1,400.” The Court of Civil Appeals held all of the orders except the one dated February 16, 1907, to be void because attempts by the commissioners’ court to compensate the treasurer by means of a salary thereby fixed. As a writ of error was refused in the case, it must be assumed that the Supreme Court approved as correct the construction given to the orders. But we do not understand that the ruling in that case, so far as stated, was regarded by the trial court, or is regarded by appel-lees, as decisive of anything in this case. Whatever may be said to have been the meaning of the orders in question in that case, it is clear enough that the orders in question here were not attempts by the commissioners’ court to compensate appellee by means of a fixed salary. In the Smith Case the majority of the court, while declaring in their main opinion that they- did not find it necessary to decide the question, expressed a doubt about the authority of the commissioners’ court “to fix a maximum compensation below that prescribed by statute, except as it may be limited by the rate of commission fixed,” and in their opinion on a motion for rehearing, having resolved the doubt, specifically held that the commissioners’ court was without such authority. Justice Dunklin thought:

“That an order of the commissioners’ court fixing a maximum of fees to be retained at a certain sum less than the maximum of $2,000 fixed by the statute, without fixing the rate of commissions, would be valid, for in that event the maximum rate of commissions provided by the statutes would govern, and the effect of such an order would be that the treasurer would be allowed to retain commissions at that rate until the maximum amount so fixed by the order should be collected, and thereafter the treasurer would i’eceive nothing for his services.”

It is plain that the Talley Case is of no value in determining this one. It is also plain that if the conclusion reached by the majority of the Court of Civil Appeals in the Smith Case, that the commissioners’ court was without power to fix the maximum compensation of a county treasurer below that named in the statute, “except as it may be limited by the rate of commission fixed,” was correct, the case before us has been properly decided. But we do not agree that that conclusion was correct if it was that the rate must be expressed in the order fixing the compensation; and in view of the fact that the Court of Civil Appeals determined the question when, as they stated, it was necessary they should do so, we do not think the refusal of a writ of error should be regarded as an approval by the Supreme Court of the ruling made. Therefore we do not feel bound by the decision in that case.. We are of opinion the view taken by Justice Dunklin of the statute is the correct one.

The purpose of the Legislature in providing that county treasurers should be compensated by means of a commission on moneys received and paid out by them, and in proscribing both a maximuqi rate and total amount as limits beyond which the commissioners’ court should not go in fixing such compensation, plainly was to insure adequate, and only adequate, compensation to each county treasurer according to the work required of and the responsibility imposed upon him in discharging the duties of his office. The Legislature thought the services of any county treasurer, however great the amount might be of the moneys received and disbursed by him annually, would not be worth exceeding $2,000, so they declared by article 3875 that no county treasurer should be allowed exceeding $2,000 per annum for his services. The Legislature thought the services of a county treasurer who received and paid out less than $80,000 annually would be worth proportionally less, according to the amount of the moneys he handled, than $2,000; so they declared by article 3875 that no county treasurer should be allowed for his services exceeding 2½ per cent, on the moneys received and disbursed by him. Had the Legislature prescribed only a maximum rate, say of 2½ per cent., it would have been within the power of the commissioners’ court to have allowed the county treasurer who handled, say, $200,000 annually, compensation amounting to $5,000 per annum. Had the Legislature prescribed only a maximum amount, say of $2,000 per an-num, it would have been within the power of the commissioners’ court to have allowed a county treasurer who handled, say, $50,000, annually as much as $2,000 per annum for his services. It seems to us that no order of the commissioners’ court which in its effect conforms to the purpose of the Legislature should be held to be invalid. As each of the orders in question here does that, we think the trial court erred when he held them, severally, to be void. Each of the orders clearly shows the purpose of the commissioners’ court, conformably to the statute, to have been to compensate appellee by means of a commission on moneys handled by him, and not by a sum fixed as a salary; for it is plain that, had £½ per cent, (the maximum of the commission authorized by the statute) on the amount of the moneys received and paid out by appellee amounted to less than the sums named in the orders, appellee would have been entitled, by virtue of the orders, to receive only the sum representing 2½ per cent, on the moneys handled by him, and not the sums specified in the respective orders.

3¥e think the judgment should be reversed, and that judgment should be here rendered that appellee take nothing by his suit against appellant, and it will be so ordered.
      <§=»IPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    TEXAS AUTO SUPPLY CO. v. GULF REFINING CO.
    (No. 8836.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 30, 1918.
    Rehearing Denied May 4, 1918.)
    Sales <®^164^Contract — Quantity.
    It being contemplated and intended in mak- •» ing contract for defendant selling to plaintiff during the year 35,000 gallons or such quantity of gasoline as plaintiff might require for its business that defendant would not be bound to furnish exceeding approximately that amount, it, furnishing 87,000 gallons, is not liable for refusing more.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Action by the Texas Auto Supply Company against the Gulf Refining Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wray & Mayer, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, of Ft. Worth, and D. Edward Greer, of Houston, for appellee.
   DUNKLIN, J.

The Texas Auto Supply Company instituted this suit against the Gulf Refining Company to recover damages for an alleged breach of its contract in writing for the sale of gasoline to the Motor-ear Specialty Company. Plaintiff alleged that after said contract was executed the Motorcar Specialty Company tools over the business of the Texas Auto Supply Company, and by amendment to its charter adopted the name of that company as its own. In addition to pleas of general denial of plaintiff’s cause of action and special defenses, defendant pleaded a counterclaim for the value of certain gasoline sold to plaintiff over and above that covered by the contract. From a judgment denying plaintiff any recovery and in favor of the defendant on its counterclaim, plaintiff has appealed.

The trial was without the aid of a jury, and the trial judge filed findings of fact and conclusions of law which are as follows:

“I find that on the 1st day of June, A. D. 1912, defendant, Gulf Refining Company, entered into a contract with the Motorcar Specialty Company in terms and figures as follows, to wit:
“• ‘This contract made and entered into this the 1st day of June, 1912', between the Gulf Refining Company, of Port Arthur, Tex., first party, and Motorcar Specialty Company, of Ft. Worth, Tex., second party, witnesseth: That first party sells and agrees to deliver to second party, and second party agrees to purchase and receive from first party, during the period of twelve months commencing June 1, 1912, 35,000 gallons or such quantity of store gasoline as second party may require during that time for its own consumption, at nine cents per gallon, f. o. b. Ft. Worth, Texas.
‘Payment. Payment shall he on the 10th of each month for previous months’ purchases, and in case second party shall fail to pay any draft drawn by first party for bills due, first party may, if it so elect, cancel and terminate this contract.
“ ‘First party guarantees that this store gasoline shall be of uniform quality, and at all times up to regular standard.
“ ‘Should there be at any time during the life of this contract a decline in the company’s schedule of prices at the above-named point of delivery below price named in this contract, the second party shall have the benefit of such schedule during the time it is in effect.
‘Conditions. In case of fire, strike, failure of railway, vessel, or pipe line service, as public or private carriers, or any act of God or providential causes happening to either party on account thereof.
“ ‘This contract to be signed in triplicate by both parties hereto, and becomes effective only when approved by the general sales manager, or his assistant, of the first party, and when so approved one copy will be forwarded to second party.
“ ‘Witness the signatures of first and second parties this 1st day of June, 1912. Gulf Refining Company, C. L. Kerr, Dist. Sales Manager.
“ ‘Attest: -.
“ ‘Approved: Motorcar Specialty Co., Inc., W. H. Hartman, Asst. General Sales Mgr. High.’
“I further find that at the time of the execution of the above contract the Motorcar Specialty Company was a corporation having been engaged in the business of selling automobile accessories, tires, ■ etc., for a short time before June 1, 1912, but had not established a business in the sale of gasoline.
“I further find that at the time of the execution of the contract tbe Motorcar Specialty Company had installed a five-barrel tank holding approximately 270 gallons, preparatory to engaging in the business of selling gasoline in small quantities at retail to consumers to be delivered from such tank, and that the contract between the parties was made with the intention of supplying the Motorcar Specialty Company with the gasoline it might require for the wants of its then contemplated business during the period of time covered by the contract in accordance with the estimate made by the said parties as to the probable requirements.
“I further find that at the time of the execution of the contract there was an estimate made between the parties thereto as to the probable requirements of the Motorcar Specialty Company for gasoline during the period of time covered by the contract, and that it was then estimated that 100 gallons a day, or 35,-000 gallons for the year, would be the maximum or a quantity approximating the maximum that the Motorcar Specialty Company would require.
“I further find that in naming 35,000 gallons in the contract it was the intention of the parties thereto to state the maximum amount or the quantity approximating the maximum amount of gasoline which the Motorcar Specialty Company would require during the period of 12 months commencing June 1, 1912.
“I further find that it was the further intention of the parties in executing the contract to state in the agreement that the Motorcar Specialty Company would purchase from the Gulf Refining Company during the period of 12 months commencing June 1,1912, only such quantity of gasoline that the Motorcar Specialty Company might require during that time for its own consumption, and that the term ‘consumption’ was intended to mean the resale of gasoline in quantities at retail to individual owners of automobiles delivered to the customers of the Motorcar Specialty Company in the usual manner from its tank.
“I further find that the quantity of gasoline which the Motorcar Specialty Company may have required for its own consumption during the period of 12 months commencing June 1, 1912, as those terms were rased and intended to be understood in the contract, was dependent upon the future conduct of its business, and upon the continuance or discontinuance, the enlargement or curtailment of its business, the fluctuations in the market prices of gasoline, the demand of the public and other uncertain contingencies, and that it was not the intention of the parties to the contract, and they did not contract, to obligate the Motorcar Specialty Company to purchase and receive from the Gulf Refining Company any fixed or ascertainable quantity of gasoline, or to continue the resale of gasoline for any fixed duration of time.
“I find that in October, 1912, the Texas Auto Company was a partnership firm composed of James Harrison and Homer Lyne, engaged in the business of buying and reselling gasoline in the city of Et. Worth, Tarrant county, Tex., in competition with the Motorcar Specialty Company, and about said time purchased the stock and business of the Motorcar Specialty Company, and on November 4, 1912, amended the charter of the Motorcar Specialty Company, changing its name to the Texas Auto Supply Company, and thereafter the two businesses were operated under the same control and management, and not as competitors.
“I further find that prior to the purchase by the said Texas Auto Supply Company of the capital stock and business of the Motorcar Specialty Company the said Texas Auto Supply Company was doing a large business in the sale of gasoline, and consumed in its business an amount of gasoline greatly in excess of the consumption by the Motorcar Specialty Company, and that It had. a large clientage in the sale of gasoline.
“I further find that up to the time of the purchase of the stock and business of the Motorcar Specialty Company by the partnership known as the Texas Auto Supply Company the said Motorcar Specialty Company did not exceed in its demands an amount of gasoline beyond the estimated quantity made at the time the contract was entered as its requirements, but had in fact not required an amount equal to the said estimated quantity, and that after the business of the partnership firm of Texas Auto Supply Company and the business of the Motorcar Specialty Company were operated under the same management there was a large increase in the consumption of gasoline.
“I further find that the market price of gasoline about- November, 1912, rose several cents above 9 cents per gallon, and continued to rise until it had more than doubled itself and was 19 or 20 cents per gallon, and that the new owners and managers of the Motorcar Specialty Company widely advertised to the public that they would sell gasoline under the prevailing market prices, and did sell gasoline about 2 cents per gallon below the prevailing market prices, and that such gasoline was sold in large quantities and in bulk amounts to all character of purchasers and to large consumers of gasoline in drums to farmers and in bulk to other large consumers, and that they greatly enlarged the former capacity of the Motorcar Specialty Company to store and, sell gasoline by providing additional tanks and drums, and from December, 1912, up to and including May 31, 1913, sold immense quantities of gasoline, and demanded and received from the Gulf Refining Company many thousands of gallons of gasoline in excess of the quantity originally estimated as the probable requirements of the Motorcar Specialty Company, to wit, in December, 1912, 3,910 gallons, in January, 1913, 5,175 gallons, in February, 1913, 8,692 gallons, in March, 1913, 14,388, gallons, in April, 1913, 24,516 gallons, and in May, 1913, 17,437, or a total for the seven months of 74,068 gallons.
“I further find that the Texas Auto Supply Company, by reason of selling the gasoline about 2 cents under the prevailing market price, was enabled to sell gasoline readily in small and large quantities, and did sell the gasoline indiscriminately to any and all persons seeking to buy the same, and that in order to obtain gasoline to sell on the open market indiscriminately to any and all persons the Texas Auto Supply Company in the month of May, 1913, and in the name of the Motorcar Specialty Company, ordered additional quantities of gasoline to be delivered by the Gulf Refining Company, and that the Gulf Refining Company about the 13th day of May, 1913, notified the Texas Auto Supply Company that it would not furnish and deliver during the month of May, 1913, more than 600 gallons of gasoline per day, and refused to accept orders for or deliver more than that amount of gasoline during the month of May, 1913.
“I further find that the Gulf Refining Company delivered to the Motorcar Specialty Company and its successor, the Texas Auto Supply Company, prior to the 1st day of May, 1913, 68,984 gallons of gasoline, and that it delivered to the Texas Auto Supply Company in May, 1913, under orders in the name of the Motorcar Specialty Company, 17,437 gallons in quantities of about 600 gallons daily.
“I further find that the plaintiff, Texas Auto Supply Company, was indebted to the Gulf Refining Company on the 1st day of June, 1913, for gasoline furnished and delivered to it prior thereto under the contract in the sum of $1,-597.88, which is due and unpaid, and that the Texas Auto Supply Company is further indebted to the Gulf Refining Company in the sum of $300.20 for 1,580 gallons of gasoline sold and delivered to the Texas Auto Supply Company by the said Gulf Refining Company at the price of 19 cents per gallon during the month of June, 1913, which amount is due and unpaid, together with interest on said sum from the 1st day of January, 1914, at the rate of 6 per cent, per annum, and that the plaintiff Texas Auto Supply Company is now indebted to the Gulf Refining Company in the aggregate amount of $2,277.68.
“I further find that defendant knew of the amended charter of Motorcar Specialty Company, and that Harrison and Lyne became the chief stockholders thereof; that Harrison and Lyne were experienced men in the auto supply business, had a large and valuable tr-ade therein, and large opportunities for the sale of gasoline; that all of the purchases of gasoline by the plaintiff from the time of the amending of the charter thenceforward to the completion of the contract were paid for by the plaintiff to the defendant with its check or draft signed by H. B. Lyne, and defendant delivered all of the gasoline to the plaintiff as in conformity with and in carrying out the terms of the contract in controversy in other words; that all of the deliveries of gasoline by the defendant were made to the plaintiff under and by' virtue of the provisions of the -contract here-inbefore referred to.
“I further find that the purchases of gasoline on the part of the plaintiff from the defendant from the time of the amending of the charter thenceforward to the completion of the contract were paid for by the plaintiff to the defendant with its check or draft signed by H. B. Lyne, and defendant delivered all of the gasoline to ‘the plaintiff as in conformity with and in carrying out the terms of the contract in controversy; in other words, that all of the deliveries of gasoline by the defendant were made to the plaintiff under and by virtue of the provisions of the contract hereinbefore referred to.
“I further find that the purchases of gasoline on the part of the plaintiff from the defendant from the time of the amended charter thenceforward steadily increased, so that in January, 1913, the plaintiff purchased and defendant delivered 5,175 gallons, in February following, 8,692 gallons, in March following, 14,388 gallons, in April following, 24,516 gallons, and in May, 17,437 gallons; 'that defendant knew that plaintiff’s management was pushing and aggressive, and that the plaintiff had the facilities for the sale and delivery of large quantities of gasoline; that defendant promptly and expeditiously met every demand of the plaintiff on it for gasoline under and by virtue of the terms ofthe contract, without objection, until the 13th day of May, 1913, at which time it notified the plaintiff that it would only deliver to it under the terms of the contract 600 gallons per day, as hereinbefore; that at no time did the defendant repudiate or question the terms of the contract or claim to the plaintiff that it was not bound thereon; that it gave as a reason why it would not supply the plaintiff more than 600 gallons per day from the 13th day of May to the expiration of the contract that it was short of gasoline.
“I further find that the plaintiff from the 13th day of May thenceforward to the expiration of .the contract to wit, the 30th day of May, 1913, was obliged in order to supply and meet the demands of its business, to go into the open market, and did so do, and buy 13,853 gallons additional to the gasoline that was delivered by the defendant, and paid therefor the market price of 19 cents per gallon. If plaintiff is entitled to recover, it is the sum of $1,385.30, which is the difference between the price nominated in the contract and the 19 cents per gallon for the 13,853 gallons plaintiff was obliged to go into the open market and buy.
“I further find that plaintiff made daily demands on the defendant from the 13th day of May, 1913, to the expiration of the contract for deliveries of gasoline' suflicient to supply its demands and business, and was by defendant refused because, as aforesaid, of the alleged shortage.
“Conclusions of Law.
“(1) I conclude that the contract executed between the Motorcar Specialty Company and the Gulf Refining Company was unenforceable and void for want of consideration and mutuality, and was unilateral in that the Motorcar Specialty Company was not required to purchase and receive from the Gulf Refining Company 35,000 gallons of gasoline or any ascertainable quantity of gasoline, and that the quantity of gasoline which the Motorcar Specialty Company might have required during the 12 months commencing June 1, 1912, for its own consumption was' entirely dependent upon the will and discretion of the Motorcar Specialty Company in the conduct of its business and upon the continuance or discontinuance, the enlargement or curtailment of its business as determined by the wishes and desires of the Motorcar Specialty Company, the fluctuations of the market price of gasoline, the demands of the public, and other uncertain contingencies, and that therefore the Gulf Refining Company, under the contract, was not legally obligated to accept orders for and deliver the gasoline, and no action for damages lies against it for its failure to deliver the gasoline which it is alleged it failed to deliver.
“(2) I further conclude that it was within the contemplation of the parties to the contract that 100 gallons a day of the 35,000 gallons for the year would be the maximum or a quantity approximating the maximum amount that the Motorcar Specialty Company would require for its own consumption for the year beginning June 1, 1912, and ending May 31, 1913, and such estimate having been made by the parties to the contract at the time it was executed as being the
maximum amount or a quantity approximating the maximum amount that the Motorcar Specialty Company would require during the period covered by the contract for its own consumption, the contract should be construed in the light of the intentions of the parties thereto, and that the Gulf Refining Company, having furnished more than 87,000 gallons of gasoline, more than complied with its legal obligations under the contract, and cannot in any event be held liable for damages for the failure to furnish any amount of gasoline in excess of the quantity which was actually delivered.
“(3) I further conclude that, the Texas Auto Supply Company having ordered and received under the contract gasoline in an amount equal to $1,597.88, the said Texas Auto Supply Company is legally indebted to the Gulf Refining Company in that amount and interest thereon from January 1, 1914, and that, the Texas Auto Supply Company having ordered and received from the Gulf Refining Company 1,580 gallons of gasoline in June, 1913, at the current market price of 19 cents' per gallon, it is legally liable to the Gulf Refining Company in the sum of $300.-20, together with interest thereon from the 1st day of January, 1914, and that defendant, Gulf Refining Company, is entitled to recover judgment against the plaintiff, Texas Auto Supply Company, in the aggregate amount of $2,277.68.”

There is no statement of ffacts in the record and no attack is made on any of the findings of fact as being unsupported by proof; indeed, any such attack if made would be unavailing in the absence of a statement of facts.

All of appellant’s assignments of error are addressed to the court’s conclusion that the contract sued on was void for want of consideration and because it was unilateral and lacking in the essential element of mutuality.

Upon that question many authorities are cited and discussed by appellant and appel-lee, but we deem its determination by this court to be immaterial, since the judgment rendered is correct for the reasons given in the second paragraph of the conclusions of law, the correctness of which is not challenged, and which are to the effect that in making the contract it was contemplated and intended by the parties that appellee would not be bound to furnish exceeding approximately 35,000 gallons of gasoline during the entire period covered by the contract, and that, as more than 87,000 gallons had been furnished, appellee had more than discharged its contractual obligations.

Furthermore, those conclusions are supported by such authorities as Gulf Refining Co. v. Pegues Mercantile Co., 164 S. W. 1113; Gulf Refining Co. v. Brown-Loyd Co., 167 S. W. 162; Holland v. Pierce Fordyce Oil Ass’n, 171 S. W. 1075; Cullinan v. Standard Light & Power Co., 65 S. W. 689.

Upon the trial court’s findings of fact and the conclusions of law last referred to and those stated in third subdivision of legal conclusions, all of which we adopt, the judgment is in all respects affirmed.

Affirmed.
      @a»For other eases see same topic and KEY-NUMBER in all Key-Numbered Pigests and Indexes


author: GRAVES, J.

text:
    McFARLANE et al. v. GULF PRODUCTION CO.
    (No. 7683.)
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1918.)
    Mines and Minerals <S=>78(1) — -Oil Lease— —Drillings Wells — Consent ojt Parties.
    Under oil lease conveying all oil under all the land for fixed payment and royalties, giving lessee right to subdivide and sell, and inhibiting drilling well within 300 feet of residence, except with consent of “both parties hereto, their heirs and assigns,” assignee of part of excepted circle may drill thereon, lessor consenting, without consent of assignees of other parts.
    Appeal from District Court, Harris County; T. M. Kennerly, Special Judge.
    Action by J. H. McParlane and others against the Gulf Production Company for injunction. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    E. P. & Otis K. Hamblen, of Houston, for appellants. P. C. Proctor and D. Edward Greer, both of Houston, for appellee.
   GRAVES, J.

Under a lease contract of date April 11, 1907, Mrs. Anna Allen Wright sold to Patillo Higgins all the oil, gas, sul-phur, and other minerals in and under about 75 acres of land in what is now the Goose Creek oil field in Harris county, Tex., upon a portion of which her home was then located. The lease, in which Mrs. Wright was termed first party and Mr. Higgins second party, after providing for the right of ingress and egress, of laying pipe lines, maintaining tanks, constructing and operating refineries, of using such water, soil, and other adjuncts of the land as were necessary in drilling thereon and handling the products, contained these recitations:

“It is especially understood ,that the party of the second part shall have the right to convey all of thjs lease contract, or any part thereof, to individuals or corporations whom he may desire.
“It is further understood, agreed and stipulated that the party of the first part in executing this instrument intends the same as a conveyance of all the oil, gas, sulphur and other minerals in and under the land described in this instrument as herein set out, and that all the conditions herein mentioned shall extend to the heirs, executors, administrators and assigns of both parties herein named.
“It is understood by both parties hereto that no wells shall be drilled within 300 feet of the residence now on said land herein described unless with the consent of both parties hereto, their heirs and assigns.”

Higgins then subdivided and platted the 75 acres, conveying his rights in different parcels of it according to the plat to various purchasers, among whom were the parties to this litigation, appellants having acquired lot 10 of the plat, embracing about 3.58 acres, and upon which the 300 foot zone, or “Reserve” around Mrs. Wright’s residence impinged to the extent of Vioo of an acre, the entire “Reserve” Inclosing 7½ acres; while the appellee acquired adjoining lot 11 of this subdivision, which contained about 15 acres, and included within it all of the “Reserve,” except the small portion so extending over into lot 10. In other words, the barred zone, or the “Reserve,” was a circle described from Mrs. Wright’s residence as its center, upon a radius of 300 feet, and inclosed within its circumference 7 ½ acres of land, the whole of which lay within lot 11 belonging to the appel-lee, except a small segment containing Vioo of one acre, which bit into lot 10, owned by the appellants.

'Both parties were assignees under Higgins as to the tracts so respectively held by them, and accordingly were in the same manner entitled to just such rights, benefits, and privileges, and likewise subject to such burdens, as were given to or imposed upon them, respectively, as his assignees by virtue of the terms of Higgins’ lease from Mrs. Wright; both were further in possession of and producing oil, respectively, from portions of the two tracts in which they owned the rights described, except that neither had ever drilled or attempted to drill a well within the 300-foot circle before the preparations of the appellee to do so, next herein referred to.

With the parties sustaining the relations toward the property and each other as outlined, and upon them as a basis, appellants sued the appellee in the court below seeking judicial construction of this Higgins’ lease, and, in the event the court should hold that its terms forbade the drilling for oil in any part of the “Reserve” without their consent, as was their contention, asking that the appellee be perpetually enjoined from so doing. Pending final disposition of the case, a temporary injunction to the same end was prayed for, upon further allegations that the appellee was then about to begin the drilling of one or more wells upon that part of the “Reserve” lying immediately between their leasehold and Mrs. Wright’s residence, and within about 40 feet of their line; that appellee had recently obtained the consent of Mrs. Wright to so drill, but neither had nor could obtain their consent, because of the damage it would do them; and that the contemplated drilling would so peculiarly and irreparably injure them and their property rights as to make any other remedy than complete prohibition of it by the writ of injunction wholly inadequate, in that the oil would thereby be drained from under their land, entailing loss of revenue, depreciation in the value and sala-bility of their holdings, etc.

The court conducted a hearing to deter-, mine whether or not the temporary injunction asked for should issue, at which the appellee appeared and answered, submitting its general demurrer to the petition of appellants for injunction, and with the latters’ consent, also presenting a new and more recent lease direct to it from Mrs. Wright, covering the 2½ acres in the north ■end of lot 31 which adjoined appellants’ south line, and purporting to grant it the right to drill thereon the wells the court was ashed to enjoin. Holding that their petition failed to disclose such facts as made appellants’ consent necessary before the ap-pellee could drill upon the “Reserve,” as contemplated by it, the court sustained its demurrer, and refused the temporary injunction. Prom that action this appeal is prosecuted.

The order appealed from, after reciting that the question raised by the demurrer was the proper construction of the Higgins lease, particularly paragraph 16 thereof, and that the obvious intention of the parties thereto was not only to pass to Higgins the title to all the oil, gas, sulphur, and other minerals within the 300 foot zone, but also to protect the residence then located thereon from fire, smoke, noise, etc., thus concludes:

“Such zone and the agreement of the parties relative thereto was for the protection of such residence and for the benefit of the person or persons owning such residence, and only the parties to such conveyance, claiming- some interest in such residence or some person, holding under the parties to said lease and claiming .some interest in said residence, would be entitled to restrain the owner of the oil and other minerals on, in, and under said zone from drilling a well within said zone.
“Plaintiffs by their application do not bring themselves within that class of persons, and for such reason are not entitled to restrain the ■drilling of oil wells within such zone. Upon such ground, the defendant’s demurrer is sustained, and the temporary injunction prayed for by plaintiffs is therefore refused.”

We find no fault with this conclusion of the trial court, and an order affirming its judgment has been entered.

It was also correctly held that the rights •of the parties were to be determined by •the proper construction of the Higgins lease. In accord with the facts previously mentioned, the court had found that the appel-lee, at the time of obtaining the new lease •direct from Mrs. Wright, already owned, as the assignee of Higgins, all the rights in the land it covered that the latter had acquired by virtue of his original lease from Mrs. Wright, which lease was then in full force and effect, so that she had nothing further to convey and it acquired nothing additional under the new lease.

Appellants contend that the stipulation that no wells shall be drilled within 300 feet •of the dwelling house unless with consent ■of both parties, their heirs and assigns, is a covenant running with the land, and cremated in their favor, as the owners of abutting property, such a servitude upon the ■entire “Reserve” as entitled them by injuriction to prevent the drilling, without their ■consent, of wells on any part of it. In upholding the conclusion of the court below, however, we find it unnecessary to pass upon whether this provision was personal, or a covenant running with the land, because we think the reasonable construction of it, under the surroundings and situation of the parties, considering also the language used throughout the instrument, indicates that the parties in making it did not intend to so burden the property; and, in the interpretation of covenants, both as to their nature, character, and meaning, as of contracts generally, the cardinal principle is that the intention will prevail. 7 Ruling Case Law, pp. 1086, 1086, Covenants, pars. 3 and 4.

The 75 acres leased to Higgins lay in a long narrow strip about 4,000 feet long by about 800 feet wide; the title to the minerals under it all, including the 300-foot zone reserved, together with the exclusive right to drill and produce oil thereon, was conveyed to him (Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989), he being required to pay the taxes, an annual money consideration, and also royalties upon the whole; the right to subdivide and- sell the tract ad libitum was granted him and his assigns, with the proof showing that he had in fact cut it into and sold 12 small tracts, with the “Reserve,” which lay almost entirely within one and. only touched one other of these subdivisions, containing only about 10 per cent, of the whole.

As expressive of our own view of the considerations upon which the trial court’s construction of the contract may be sustained, we take the liberty of quoting, with very slight changes, these excerpts from the able brief filed in this court by counsel for the appellee:

“Mrs. Wright had her home on the land, and she knew that if wells were drilled close up to her residence the same would become uninhabitable by reason of bad odors, slush, mud, unsightly derricks, and machinery; and in addition to all of this there would be great danger of fire. She therefore wished to protect her home by adjacent land from any close proximity of wells and all the disagreeable incidents attendant on having them close to her house; but, notwithstanding this, she evidently contemplated that there might come a time when she would prefer to abandon her home and move away and have the acreage in the reserve developed, otherwise she would simply have excluded the reserved area from the lease, would not have required the lessee to pay the taxes thereon, and would not have put herself in the position thus to have leased separately this tract if she desired to do so. Therefore she made the provision as to no wells being drilled within 300 feet of her home unless she consented.
“On the other hand, Higgins had bought the minerals under the entire tract, including the* 300-foot reserve, with the right to develop same; and, if the clause had been so written as to allow drilling in the reserve on procuring Mrs. Wright’s consent alone, Higgins was doubtless afraid a clause so phrased' would allow Mrs. Wright to consent to some one else than Higgins or his assigns drilling on the reserved area. Hence he stipulated against such construction by providing that the consent of himself or his assigns also should be necessary before any drilling on the reserved area should take place. It may be argued that it was not necessary to so stipulate, because it is uniformly held that a reservation against’ drilling in a designated part of a leased' tract does not take the designated part of the lease, and the lessor could not authorize a third party to drill in such designated area; but we must remember that this lease was made in 1907, and therefore perhaps before many of the cases so holding were decided, that the point had never been decided in this state, and from the number of cases which have been carried to the higher courts by eminent lawyers the point was evidently deemed and considered very doubtful. See Archer on Oil and Gas, p. 170 et seq. It was therefore nothing but proper prudence and caution on the part of Higgins to stipulate that no wells should be drilled on the reserved area without his consent, when Mrs. Wright had stipulated that they might be drilled with her consent. This entirely answers the suggestion of appellants that it would be absurd for Higgins to stipulate that his own consent must be procured before he could drill; he was providing against Mrs. Wright’s authorizing some one else than himself or his assigns to drill on the reserve.
•“The obvious meaning, then, of the restriction, is that the lessee shall drill no wells in the reserved area without the consent of the lessor, and that the lessor or grantor shall not have the right to . authorize or grant the right to drill in such area to any one other than the lessee or his assigns. So construed, then, what is meant by the requirement ‘that no wells shall be drilled within 300 feet of- the residence now on said land herein described unless with the consent of both parties hereto, their heirs or assigns,’ with respect to the consent of the assignees?
“Let us first consider it from Mrs. Wright’s point of view. She was leasing a long, narrow strip of land; she evidently wished the land to be developed and all of the oil gotten out of it for the purpose of securing to herself an income or profit. She was desirous, however, of at least temporarily living on the land, and for the reason already pointed out she wished her home to be as little interfered with as possible, until she could come to the conclusion that it would be better to abandon it, move away, and devote. the reserved area (along with the balance) to the production of oil. She evidently contemplated that at some time in the future she would prefer to give up her home and have the site developed for oil, if the land proved to be valuable for that purpose. At the same time she contemplated that Higgins, her lessee, would cut up the tract and sell out numerous small tracts, and that the purchasers would thus become assignees. Is it conceivable that she intended to put it into the power of each of these assigns to prevent her from having the home site developed if she should conclude to move away and abandon her home? Thus construed, the contract is not a restriction or reservation in her favor, but so against her interest that it is manifest she had no such intention. Under the agreement that Higgins could sell any part of the land, he could have sold, say, one-half an acre in the northeast comer of the tract three-fifths of a mile away from her home, and under the construction put upon the clause by appellants she could not have authorized Higgins himself to drill any well on her home site if this assignee objected. Such a construction and conclusion leads to an absurdity, and in law •as well as in logic an absurd conclusion or construction shows the premise to be wrong.
“Now consider it from Higgins’ point of view. He expected to sell parts of the land, since he stipulated for that right. Suppose, as above, that he had sold one-half an acre in the northeast corner. Is.it conceivable that he intended that, after obtaining Mrs. Wright’s consent to drill on the home site, he must also obtain the consent of this vendee of the one-half acre? Hid he so intend to restrict his rights, and impair — seriously impair — the value of his remaining holdings? Here again the construction of appellants leads to an absurd result, and must therefore be wrong.
“From what has been said it seems to us clear that neither party intended that any and every assignee of a part of the leased tract, no matter how small or how remotely situated from the reserved area his tract might be, should have the right to object to wells being drilled on such reserve. Yet, following the settled rules of the construction of contracts, we must, if we can, give some effect to the provision requiring the consent of Higgins and his assigns. We believe an entirely sufficient effect is given to this provision by construing it as relating or referring only to wells to be drilled by others than the lessee or his assigns. We have pointed out that, if the lease had been left with the provision simply prohibiting the drilling within the reserve except with the consent of Mrs. Wright, the claim would most probably be made that she could give her consent to outsiders or third parties to drill on the reserve. Even if we suppose that Higgins knew of the cases holding that she would have no such right, then he also knew that the right had often been claimed or asserted, and that the question had never been decided in this state; and he therefore knew that he might be exposed to expense and annoyance in defending lawsuits, so he provided against such in the contract itself, which was only prudent.
“But there is another way in which the language of the lease can be given full and complete effect without giving it the effect claimed by appellants. As stated, the lease itself provides that the lessee may sell and convey all or any part of the premises; it was therefore contemplated by the pai'ties that this would be done. When Higgins sold parts of the land, or his rights therein, the lease was cut up into just so many parts as he had sold; the purchaser became the lessee or grantee, and Mrs. Wright his lessor or grantor; and under precisely the same conditions and obligations, so far as applicable to his tract, as if said purchaser or lessee had alone originally purchased or leased the tract which he bought or leased from Higgins. Mrs. Wright, having consented in advance that Higgins could cut up the land and sell it out to others, was estopped from claiming any injury to her or any violation of her rights by Higgins so doing. Therefore, whenever any one purchased a tract which embraced a part of the reserve he had the agreement with Mrs. Wright that she should not grant to any third party the right to drill on the part of the reserve inclosed in his tract, and she had a contract that he should not drill on that part of the reserve included in his tract without her consent.
“From what has been said, we believe it is demonstrated that the lease did not require the consent of all the assignees of Patillo Higgins to drilling within the reserved area. Appellants contend that, as their land embraces a small part of the reserved area, their consent is required, even if the consent of all of the assigns of Higgins is not. But this manifestly cannot be so. If appellants cannot maintain their contention that the provision of the lease is plain and needs no construction, but must be given effect as written, and therefore requires the consent of all assigns under Higgins, they have lost their case, because we must then construe the language used to find the intention of the parties, and when we do so we must conclude that the intention was: First, that so long as the lease was held Iw Higgins and his assigns in an undivided condition, no third party should be allowed to drill on the reserved area without the consent of Mrs. Wright and of Higgins or his assignee, holding the entire lease; second, that if the lease was cut up by parts being sold, no wells should be drilled on that part of the 300-foot reserve embraced in such severed or sold part ■without Blrs. Wright’s consent and the consent of the owner of such sold or severed tract. This is evident from the fact that Blrs. Wright wished to preserve the home reserved area from drilling so long as she desired, hut also wished to have the right to allow drilling if she abandoned her home; and Higgins wished to secure to his vendees the right to prevent Blrs. Wright from giving her consent to a third party to drill on such portion of the reserve.”

Affirmed.
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author: HIGGINS, J.

text:
    FIRST NAT. BANK OF SWEETWATER v. PORTER.
    (Court of Civil Appeals of Texas. El Paso.
    May 23, 1918.)
    1. Trial <®=>125(5) — Argument op Counsel.
    It was ’ highly improper, in mortgage foreclosure suit, for defendant’s .counsel to argue that the matter was of little importance to the bank, as plaintiff, but of great importance to defendant, who was a poor widow, having no other property, and that, if the jury did not want the bank to have the property, it should answer a special issue in the affirmative, both because such argument played on the passion and prejudice of the jury, and indicated to the jury the effect of its answers on the special issue.
    2. Evidence <®=o471(29) — Opinion — Construction op Chattel Mortgage.
    In suit to foreclose trust deed, where defendant set up homestead, and the sole issue was whether the land was part of a rural homestead, testimony concerning defendant’s understanding of a chattel mortgage should have been excluded as irrelevant.
    3. Homestead <§=^81i — Establishment—Good Title.
    Mere fact that mortgagor had not acquired good title to a tract upon which he actually resided did not affect his residence, for the purpose of establishing homestead.
    4. Homestead <⅜=>13 — Urban and Rural Homestead.
    One person cannot have an urban and a rural homestead at the same time.
    5. Homestead ⅞»70 — Rural Homestead — Extent — Detached Tracts.
    The mortgagor is entitled to claim three detached rural tracts as a homestead, if their total acreage is less than 200 acres.
    Appeal from District Court, Nolan County; C. E. Dubois, Judge.
    Action by the First National Bank of Sweetwater against Martha E. Porter. From a judgment in its favor in part, the Bank appeals.
    Reversed and remanded.
    Beall & Douthit, of Sweetwater, for appellant. J. D. Barker, of Roby, and Wood-ruff & Woodruff, of Sweetwater, for appellee.
   HIGGINS, J.

On September 24, 1901, J. M. Porter executed a deed of trust to secure appellant in the payment of his promissory note in sum of $1,000. The deed of trust covered two tracts of land adjoining each other, situate about two miles distant from the village of Hylton, in Nolan county. One of the tracts contained 22 acres; the other, 160 acres. The 160-aere tract was conveyed to Porter on April 14, 1900, and the 22-acre tract was conveyed to him on May 1, 1900. J. M. Porter died in 1905, and his wife, the appellee herein, qualified as the survivor of the community estate. Said note was renewed by Mrs. Porter from time to time, and' on June 30, 1914, the bank filed this sujt against her to recover the amount due upon the same, with foreclosure of the deed of trust. The ease was submitted to a jury upon special issues, and upon the answers returned judgment was rendered in favor of the bank for the amount of the note, but denying foreclosure of the lien. Foreclosure of the deed of trust was resisted upon the ground that the premises constituted a part of the homestead of Porter when the deed of trust was given. From the judgment rendered, the bank appeals.

Defendant was granted the right to open and conclude the argument, and in the opening argument to the jury, Mr. Barker, one of defendant’s counsel, commented upon the fact that plaintiff was a national bank, and the defendant was a poor widow woman and a grandmother, and admonished the jury that it should not take from the poor widow her home, and in order not to do so it would have to answer in the affirmative the issues submitted in the charge; otherwise, they would take her home from defendant and give it to the bank. Plaintiff objected to this argument, whereupon Mr. Woodruff, another counsel for defendant, requested Mr. Barker to withdraw the remarks indicated. Mr. Barker thereupon stated to the jury that he withdrew those remarks. Thereafter Mr. Wood-ruff, in making the closing argument in the case, stated that this was a matter “of but little importance to the plaintiff, it being a national bank, handling many thousands of dollars, but it was a matter of great importance to the defendant, she being a poor widow woman, and all on earth that she had, and that if they, the jury, wanted to protect the widow woman in her home, and save her home, and not give it to a national banking corporation, that they would have to answer the special issues in the affirmative.” To this argument the plaintiff objected, and called the court’s attention thereto, and the court failed to take any action in respect thereto.

The argument of both of the counsel was highly objectionable, and necessitates a reversal. In the first place, it was an appeal to the passions and prejudices of the jury in favor of an aged widow as against a banking corporation. It is needless to say that such appeals are improper, and if counsel had not expected to profit by such an appeal it would not have been made. In the second place, the argument was objectionable in indicating to the jury the manner in which they should answer the special issues in order that the judgment would be for defendant. Fain v. Nelms, 156 S. W. 281; Railway Co. v. Hodnett, 182 S. W. 7; Patterson v. Bush-ong, 196 S. W. 962; Cameron v. Lubbock, 167 S. W. 256. We do not desire to be understood as bolding that such intimations to a jury will in all instances constitute reversible error, for in most cases tbe jury have'a very clear idea of tbe effect of tbeir answers, without being told by counsel. They gather this information naturally during the progress of the trial, and from the argument made by the attorneys for or against the issues. But in the case at bar we think the intimation very improper, and likely to have been prejudicial to the plaintiff’s rights, especially in view of the improper appeals also made to passion and prejudice.

Without undertaking to discuss in detail the various assignments presented in the brief, we will indicate our views upon the controlling questions in the case, so that the court may be guided thereby upon retrial.

The only question in this case is whether or not the two tracts of land covered by the deed of trust were a part of a rural homestead of J. M. Porter on September 24, 1901. It therefore follows that all of the testimony about a chattel mortgage on some cattle, and Mrs. Porter’s understanding about such mortgage, was irrelevant, and should have been excluded. The same is also true concerning a conversation between Mrs. Porter and Judge Beall. Appellant had pleaded an es-toppel against Mrs. Porter to raise the homestead question, and in view of this pleading it is perhaps not in a position to complain of the admission of the testimony about the chattel mortgage and Mrs. Porter’s understanding in respect thereto, as such evidence tended to rebut the plea of estoppel. But there is clearly no question of estoppel in the case, and the admission of such ‘testimony simply served to befog the real issues, and divert the mind of the jury to irrelevant mat.ters. As to the conversation between Mrs. Porter and Judge Beall, it was wholly inadmissible for any purpose.

The evidence in tills case discloses that Porter, with his wife and children, moved to Hylton about 1890. Hylton was a remote and very small hamlet or village in Nolan county. Porter engaged in the mercantile business, having a very small stock of groceries, etc. He closed out his mercantile business in the fall of 1899 or spring of 1900. When he moved to Hylton, he settled upon and had his residence upon a tract of land containing 7.95 acres, and continued to reside thereon until January, 1902, when he and his family moved to the land involved in this suit. It seems that this 7.95-acre tract was vacant land, and in May, 1890, Porter applied to purchase same as scrap land. It was surveyed upon this application, but for some reason his title thereto was not perfected. He again applied to purchase the land in 1903, and upon thiá application the land was again surveyed, and finally patented to him in August, 1903. There is evidence in this record to show that the Porters acquired the 22 and 160 acre tracts, intending to make the same their home; that in 1900, 'and subsequently, they raised crops and a garden upon the land, for the use of the family and by the labor of the family, and, as stated above, actually moved upon it in January, 1902.

Upon the foregoing facts, it is plain that, when the deed of trust to the bank was given on September 24, 1901, Porter’s home was on the 7.95-acre tract at Hylton. The fact that he had not at that time acquired good title to the same did not in any wise affect the fact that his home was in fact there situate. So the first and important issue in this case for determination is whether the home upon the 7.95-acre tract was an urban or a rural homestead on September 24, 1901. The evidence will sustain a finding either way, and this issue should be submitted to the jury for its determination.

If it be determined that the home on the 7.95-acre tract was urban, then there is nothing else for the jury to pass upon, as the 22 and ICO acre tracts are rural, and Porter could not have both an urban and rural homestead at the same time. If it be determined that the home upon the 7.95-acre tract was rural, then it is necessary further to determine whether or not there had been such use of the 160 and 22 acre tracts by Porter as would impress the same with the homestead character on September 24, 1901. If the home at Hylton was rural, Porter had the right to treat the detached 160 and 22 acre tracts as a part of the homestead, for the acreage of the three tracts was less than 200. There is an abundance of evidence to show such use of the detached tracts as would have impressed the same with the homestead character at the time the deed of trust was executed. As to the use necessary to impress such character upon detached tracts of a rural homestead, see the following: Baldeschweiler v. Ship, 21 Tex. Civ. App. 80, 50 S. W. 644; Brooks v. Chatham, 57 Tex. 31; Blackwell v. Lasseter, 203 S. W. 619, recently decided by this court, and not yet officially reported.

The two issues indicated are the ultimate and controlling questions in this case, and upon retrial, unless some new issue be injected, the evidence should be confined accordingly, and these are the only issues for submission to the jury. The jury, of course, should have appropriate instructions to guide them in passing upon the same.

Reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      (S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes