author: HUPP, C. J.

text:
    GENERAL BONDING & CASUALTY INS. CO. v. McQUERRY et al.
    (No. 1092.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1917.)
    1. Schools and School Districts <g=>84— Contracts — Binding Force.
    A school board was not bound by the contracts of a party secured by a bonding company to complete the school building for the contractor for which the bonding company had been surety, nor was the party himself bound by the school board’s contract with the bonding company; the contracts, though made with reference to each other, being independent undertakings between different parties.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 200, 201; Dec. Dig. <S=^84.]
    2. Customs and Usages <@=15(2) — Construction of Contracts — “Working Days.”
    Where a contract for the completion of a school building, the original contractor for which had defaulted, provided that the work should be done in 90 working days, freezing weather was excluded; there being a custom with reference to the meaning of “working days,” where the use of brick and cement enter into the work in winter time or freezing weather, though had there been no usage or custom in the use of the words their ordinary meaning would have been applied.
    [Ed. Note. — For other eases, see Customs and Usages, Cent. Dig. § 32; Dec. Dig. ©=>15(2); Evidence, Cent. Dig. § 1946.]
    3. Contracts ©=>152 — Evidence ©=>456 — Meaning of Language — Parol Evidence.
    Words in a contract will be given their ordinary meaning, unless used in a special sense, and parol evidence is frequently permitted to show they were so used.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. ©=>152; Evidence, Cent. Dig. §§ 2105, 2106; Dec. Dig. ©=>456.]
    4. Schools and School Districts ©=>85 — Building Contracts — Surety — Completion of Work — Liability.
    Whore defendant, surety for the defaulting contractor for a school building, contracted with plaintiff to complete the work within a stated time, plaintiff on performance within the time could recover the balance of the price agreed on from defendant where he was defeated out of part of the money held by the school board to pay on the contract because of defendant’s failure to procure an extension of time for performance from the school equal to the time allowed plaintiff for doing the work.
    [Ed. Note. — Por other cases, see .Schools and School Districts, Cent. Dig. § 202; Dec. Dig. ©=>85.]
    Appeal from District Court, Donley County; Hugh L. Umphres, Judge.
    Suit by A. J. McQuerry and others against the General Bonding & Casualty Insurance Company, wherein the Bonding Company made the Clarendon Independent School District a party. Prom a judgment for McQuer-ry against the Bonding Company and for the School District as to the Bonding Company’s cross-action, the Bonding Company appeals.
    Affirmed.
    Locke & Locke, of Dallas, for appellant. A. T. Cole, of Clarendon, for appellees.
   HUPP, C. J.

A. J. McQuerry brought suit against the General Bonding & Casualty Insurance Company for the sum of $720, alleged to be due him under a contract with the company for the completion of a school building in Clarendon, Tex. The bonding company made the schobl district a party to the suit, and prayed that it might he adjudged to pay to the plaintiff such sum as might be still owing on the contract after a proper deduction as damages for delay, and that it be exonerated from liability to the plaintiff or the school district.

The Clarendon independent school district entered into a contract with W. P. Cooper for the construction of a school building in the town of Clarendon, Tex., for the consideration of $18,500. He furnished a bond to secure the performance of said contract with the General Bonding & Casualty Insurance Company as surety. Cooper defaulted in the performance of his contract, and the bonding company undertook to secure the completion of the building. On September 30, 1913, it entered into a contract with A. J. McQuerry, the plaintiff, whereby the latter undertook to complete the building according to the original Cooper contract within 90 working days thereafter. On October 1, 1913, the school district, in consideration of $375, to it paid by the bonding company, extended the time of the bonding company 90 days thereafter for the completion of said school building. The contract between the bonding company and the school district was evidenced by an order entered upon the minutes of the school board. By the terms of the contract McQuerry was to complete the building for a consideration of $12,650, $11,778 of which, being the amount of the original contract price still in the hands of the school district, he agreed to receive from the school district. $872 of the contract price was to be paid to him by the bonding company upon the completion of the building. The bonding company paid him upon the completion the sum of $872, as stipulated in the contract, and before the completion of the school building he was paid by the school district all of the sum of $11,778 except the sum of $720, which the district withheld from him as demurrage for a claimed delay.

The case was tried before the court without a jury, resulting in a judgment in favor of McQuerry against the bonding company for $636, and in favor of the school district as to the cross-action asserted by the bonding company.

In answer to the first assignment and the propositions thereunder, to the effect that the contract entered into between the appellant and McQuerry and the resolution by the school board of the Clarendon independent school district should be read together and construed as one instrument, and that the school board, in its resolution, should be held to have made a contract giving 90 working days instead of 90 days from the date thereof: Without discussing the questions of law sought to be presented, we think it is sufficient to find that the evidence will support the finding of the court that the school board did not pass the resolution or make a contract with the bonding company with reference to the McQuerry contract, and that it did not see it and did not agree to give 90 working days in which to complete the contract.

Being between different parties, the school board would not be bound by McQuer-ry’s contracts, or McQuerry bound by the school board’s contract with appellant. They were not made with reference to each other, but were independent undertakings between different parties. It is doubtless true, if they had been made with reference to each other and with a knowledge of the provisions of each, the court should have construed them together with reference to the time in which the building was to be completed. If we shall consider that Smith’s testimony was in fact considered by the court, there is yet testimony contrary to his statements. We shall not undertake to say at this time whether his testimony should he considered as part of the statement of facts, when it is only shown in the record by bill of exception.

The second, third, and fourth assignments present as error on the part of the court in permitting the introduction of testimony as to the custom and usage with reference to the meaning of “working days” in buildings where the use of brick and cement enter into the work in the winter time or freezing weather. It is shown by the evidence that freezing weather will spoil the work in the laying of brick and in cement work, and that it will loosen the work; that it kills the strength of cement which would be required to be removed before work could proceed. There is no contention in the brief that no such custom and usage prevail as testified to with reference to what was meant by “working days” in this kind of a contract. It is contended by appellant that a working day, as ordinarily used in charter parties, excludes Sundays and holidays, but not rainy or stormy days, citing 8 Words and Phrases, 7521. The courts appear to hold in those cases that its ordinary use by charter-parties is as stated in the citation.

The testimony in 'this case warrants the conclusion that working days, in their ordinary use, in building of brick and cement, exclude freezing weather, for the reason that such weather spoils the work. The witnesses say that all contractors so understand and use the words, and that both parties in this case so understood it when the contract was entered into. The contract in this case must be read in the light of the circumstances under which it was made. The parties, we must assume, knew the usage of the words relative to the kind of work to be done when the contract was made, and certainly so if both so understood it. This custom in so using a word explains the meaning of the contract by the use of the term. If there was no usage or custom in the use of such words their ordinary meaning will be applied.

Words will be given their ordinary meaning unless they were used in a special sense, and parol testimony is frequently permitted to show they were so used. Dwyer v. Brenham, 70 Tex. 30, 7 S. W. 598; Insurance Co. v. Reymershoffer, 56 Tex. 234; Walker v. Armstrong, 54 Tex. 609; Railway Co. v. Henry, 65 Tex. 685. Words and Phrases, vol. 8, cites a case as holding that working days within the usage of the salt trade in reference to the number of working days allowed to unload a cargo of salt does not include rainy days; as salt is not removable without damage during such weather.

The fifth assignment is to the court’s finding of fact excluding days of freezing weather in computing the number of working days. The propositions here urged are the same as under the preceding assignments and are overruled for the reasons above given.’

The sixth assignment is overruled for the reasons given in overruling the first assignment.

The seventh assignment is overruled. The appellant agreed with appellee to pay him a stipulated price for the construction of the building; he to finish the work in a given period of time of working days. The school board had only given an extension to appellant of 90 days to complete the building. It was the duty of appellant to have procured the same time from the board that it gave McQuerry in which to do the work, and having failed to do so, under the original contract, McQuerry was defeated out of the full sum of money held by the school board to pay upon the contract, when, as a matter of fact, he had performed his part of the contract with the bonding company. This was not his fault, but was owing to appellant’s own neglect or oversight in procuring a proper contract from the school board. It must therefore suffer the loss.

The judgment is affirmed.
      <S=»For other oases see same topic and KEY-NUMBER in aU Key-Numbered Digests and Indexes

      ®=For otter cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    GUITAR v. FIRST STATE BANK OF HERMLEIGH et al.
    (No. 8470.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 18, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Set-Off and Counterclaim <@==>29(2) — Counterclaim — Relation to Cause of Action.
    In an action for possession of cotton seed, brought by the vendor of the gin, who held vendor’s lien notes, and claimed the seed was purchased for him, against a bank which purchased the seed from the operator of the gin, and which alleged that it had furnished money to its codefendant to purchase the cotton seed in question, which such defendant had after-wards transferred to it on account of the debt, its claim for the money so advanced would support a counterclaim within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1330, requiring a counterclaim to be founded on a cause arising out of, incident to, or connected with, the plaintiff’s cause of action.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. § 50; 'Dee. Dig. <@=> 29(2).]
    2. Principal and Agent @=^132(1) — Liability of Principal — Acts of Agent.
    Where the operator of a cotton gin borrowed money from a bank during one season and the account stood in his name, the bank was not es-topped, during a subsequent season, to recover from a third person, who had sold the gin and hold vendor’s lien notes thereon, the amount of such account, where such third person’s agent, at the close of the first season, agreed that the account should stand in the name of the original debtor, but that his principal should be liable therefor.
    [E'd. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 459, 467-469, 471; Dec. Dig. <@=>132(1).]

      3. Sequestration <§=»16 — Pleading and Prooj^-Variance.
    In. an action for recovery of possession of cotton seed, where a defendant bank alleged that it held an indebtedness against the plaintiff for money advanced arid used for his benefit, the mere fact that a dishonored draft made by the principal defendant upon the plaintiff was also set up by the bank did not present a variance.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. <®=^16.]
    4. Costs <⅜^>60 — Allowance of Costs — Proving Title to Allowance.
    Where plaintiff, in an action to recover cotton seed, was decreed possession thereof, but the judgment also required him to pay to a bank, claiming an account against him, the amount of such claimed account which he had refused to pay, thus requiring suit and interpleading of other parties, adjudging costs incurred by the bank against it and all other costs against the plaintiff was not unjust.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 261-271; Dec. Dig. <⅜^60.]
    Appeal froln District Court, Taylor County; Thomas D. Blanton, Judge.
    Suit by John Guitar against the First State Bank of Hermleigh and others. Judgment for plaintiff in part and against him on the counterclaim of the named defendant, and plaintiff appeals.
    Affirmed.
    Hardwicke & Chambers, of Abilene, and Theodore Mack, of Ft. Worth, for appellant. Higgins & Hamilton, of Snyder, and C. G. Whitten, of Abilene, for appellees.
   DUNKLIN, J.

During the ginning season of 1913-14, J. A. Bills operated a cotton gin in the town of Hermleigh. In order to do so, money was borrowed from time to time from the First State Bank of Hermleigh, and on December 1, 1913, the account showed that there was due the bank the sum of $390.19. T. H. Bills, with the assistance of his son, J. A. Bills, took charge of the same gin and operated it during the season of 1914-15. He also assisted his son in the operation of the gin during the previous season. Money was advanced by the same bank to T. H. Bills for the purpose of buying cotton seed, and paying the operating expenses of the gin during the latter season, and upon the account for such advancements, there was a balance due on January 4, 1915, of $674.26. In settlement of the two accounts mentioned for the two seasons, T. H. Bills conveyed to the bank two cars of cotton seed. The bank then sold the seed to Hugh Moore and shipped the same to Abilene, with drafts attached for the purchase money. When the seed reached Abilene, John Guitar instituted a suit against the bank, T. H. Bills, Hugh Moore, and the Texas & Pacific Railway Company, who was in possession of the seed, to recover the same, and at the same time sued out a writ of sequestration, which was levied upon the seed. Later, and pending the suit, by order of the court the seed was sold as perishable property, and the proceeds deposited in court to await the outcome of the suit. The bank filed an answer, in which it claimed title to the property by virtue of its purchase from T. H. Bills, and the fact that Moore had never paid the .purchase price therefor. The bank further alleged that, in purchasing the seed from it, Moore had in fact acted as the agent of John Guitar, by whom he was employed, and had fraudulently concealed such agency for the purpose of having the seed shipped to Abilene in order that suit might be instituted in Taylor county therefor by John Guitar, his principal, rather than in Scurry county, the domicile of the bank. In the alternative, the bank pleaded the two accounts referred to above for the two ginning seasons, and prayed for judgment thereon against John Guitar in the event he should recover title to the two cars of cotton seed. Judgment was rendered in favor of the plaintiff for title and possession of the cotton seed, and with an order directing the clerk to pay over the proceeds thereof on deposit in court to him. Judgment was also rendered in favor of the bank on its counterclaim against Guitar for the amounts of the two accounts, and from that judgment the plaintiff has' appealed.

The judgment also disposed of the other defendants in the suit, but the judgment in that respect will not be further noticed as the errors assigned relate only to the judgment on the counterclaim in favor of the bank.

The first complaint made upon this appeal is of the judgment for the amount of the account due on December 1, 1913, incurred during the first ginning season. By different assignments, it is insisted that neither of the accounts for which judgment was rendered could be urged as a counterclaim to the present suit, since plaintiff’s suit was a suit for title to the cotton seed, and those accounts were not founded on, nor arose out of, nor were incident to, nor connected with, plaintiff’s cause of action, as was necessary to be shown in order to bring the counterclaim within the meaning of article 1330, Vernon’s Sayles’ Texas Civil Statutes. The facts recited already, in connection with the further claim, supported by pleading and evidence, that the principal part of the account for the last ginning season was for money advanced to Bills and used by him, in part, for the purchase of the cotton seed in question, we think clearly bring the counterclaim within the provisions of the statute referred to.

The evidence shows that prior to the transactions with the bank, plaintiff had sold the gin to T. H. Bills and held vendor’s lien notes for the purchase money, and with the understanding that two-fifths of the amount realized from ginning, less costs of bagging and ties, should be deposited in the Herm-leigh bank to plaintiff’s credit and in part payment of the purchase-money notes. From the evidence it seems that T. H. Bills did not have the mone£ necessary to pay operating expenses of the gin, and to buy cotton seed-in connection therewith, and that all cotton seed purchased by him was purchased for the plaintiff Guitar.

It is insisted that the evidence was insufficient to sustain a verdict in favor of the bank for the account of $390.19 advanced during the first ginning season. This contention is overruled as the testimony of W. W. Echols, cashier of the bank, especially in connection with the testimony of T. H. Bills, was ample to sustain a finding that the plaintiff, through his agent Moore, authorized the bank to extend the credit to J. A. Bills for the money so advanced, and agreed to pay the same. Appellant contends that the fact that the account was run in the name of J. A. Bills, and not in the name of the plaintiff, in connection with the further fact that, in the written contract between the plaintiff and T. H. Bills for the operation of the gin during the second season mentioned, provision was made for the payment, out of the proceeds of the operation of the gin, of the account incurred during the first ginning season, which was described as an indebtedness due by Bills, and a copy of whiqh contract was turned over to the bank as soon as it was executed, was conclusive against the bank with respect to its counterclaim for the amount of that account.

According to testimony offered by the bank, it was agreed between all the parties in interest that the account for the season of 1913 should be run in the name of J. A. Bills for the use and benefit of plaintiff Guitar, who would be liable therefor. The contract last referred to was executed August 31,1914, after the accrual of the account for the previous season, and the acceptance by the bank of notice of that contract and further advancements by it thereunder for the second season could not, under the evidence in the case, have the effect of an estoppel against the bank to claim that plaintiff was liable for the previous account, nor could it, in connection with the fact that the previous account was charged in the name of J. A. Bills, have the effect, as a matter of law, to destroy the force of the testimony introduced by the bank, to the effect that Moore, as agent bf Guitar, agreed to pay the account incurred during the first ginning season.

It is insisted that there is a fatal variance between the bank’s allegations relative to the account for the first ginning season and the proof. This contention is predicated upon the theory that the defendant’s right of action was based alone upon the draft drawn by J. A. Bills upon the plaintiff for the amount of the account which was dishonored, and that that draft was alleged by the bank as a part of its cause of action against the plaintiff. There is no merit in the contention, since, in addition to the allegations of the draft, it was also alleged that the indebtedness evidenced by the account was incurred by J. A. Bills as the duly authorized agent of Guitar, and that the money advanced by the bank thereon was used for his benefit, and there was testimony sufficient to support those allegations.

Upon the trial, plaintiff requested a peremptory instruction in his favor for title to the cotton .seed, and also,in favor of the bank against him for the sum of $674.26,' the same being the amount admitted to be due on the account for the second ginning season. The judgment on the account last named was in the exact amount so admitted. Hence appellant is in no position to complain that the same is unjust, and in fact makes no such complaint.

All costs incurred by the bank were adjudged against it, while all other costs were adjudged against the plaintiff, Guitar. Appellant insists that all the costs should have been adjudged against the bank, in view of the fact that the plaintiff recovered title to the cotton seed for which he sued, and which was wrongfully withheld from him by the bank, and no facts were should which constituted a sufficient cause to adjudge the costs otherwise. As plaintiff had repeatedly refused the payment of the account of $390.19 for the first ginning season, thus rendering a suit necessary to recover the same, and as it appears from Moore’s own testimony that in purchasing the seed from the bank he was acting as the agent of plaintiff, whose interest was undisclosed, and as the interpleading of him and the Texas & Pacific Railway company was,the result of such act on his part, and as the interpleading of defendant Bills resulted from a denial by plaintiff of the account for the first ginning season, we cannot say that the action of the court in adjudging the costs as was done was unjust to the plaintiff.

Several cross-assignments of error have been presented by the bank, which we will overrule without discussion, in view of the statement made by counsel for the bank in his oral argument that he would not insist upon the same, if all of appellant’s assignments of error should be overruled.

For the reasons indicated, the judgment of the trial court as between the plaintiff and appellee bank is, in all things, affirmed, and the judgment, as between the other parties to the suit, is undisturbed.
      ®=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    CITY OF FT. WORTH v. BURGESS.
    (No. 8464.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 25, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Waters and Water Courses §=>179(4)— Action for Overflowing Land — Evidence.
    In action for overflowing of lands caused by reservoir construction, evidence held sufficient to show the market value of the land immediately before and immediately after the construction of the dam.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 250, 263; Dec. Dig. <§=>179(4).]
    2. Waters and Water Courses §=>179(4)— Evidence.
    Absolute certainty is not required in proving the amount of damages, in actions for injuries to land from overflow, but it is sufficient if such proof enables the jury to assess the damages with reasonable certainty.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 250, 263; Dec. Dig. <§=>179(4).]
    3. Evidence <§=>571(7) — Opinion Evidence-Experts.
    In an action for damage to property, the jury is not confined to the estimates of value of such property by experts, where facts are established from which the jury may reach a reasonable conclusion tested by common knowledge and experience.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2397; Dec. Dig. <§=>571(7).]
    4. Waters and Water Courses §=>178(2)— Overflowing Land — Damages.
    In action for damages to farm by dam causing overflow of part of it, the damages recoverable are the difference between the market value of the entire tract immediately before and immediately after the dam construction.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 255; Dec. Dig. §=>178(2); Damages, Cent. Dig. § 276½.]
    5. Evidence §=>5(2) — Judicial Knowledge-Value of Farm Lands.
    It is matter of common knowledge that a reasonable amount of pasture land when sold in connection with a farm has a higher market value than when sold otherwise.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dee. Dig. §=>5(2).]
    6. Waters and Water Courses §=>179(3)— Injury to Land — Damages.
    In determining the damages to land from construction of a dam causing its overflow, the plaintiff can have the jury consider the prior market value of his land for any purpose to which it was adapted and for which he desired to use it.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 249, 263; Dec. Dig. §=>179(3).]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by John I. Burgess against the City of Ft. Worth. From judgment for plaintiff, defendant ■ appeals.
    Affirmed.
    T. A. Altman and B. L. Agerton, both, of Ft. Worth, for appellant. W. P. Walker, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellee.
   DUNKLIN, J.

John I. Burgess recovered a judgment against the city of Ft. Worth for damages to a tract of land resulting from the construction of a reservoir, from which the defendant has appealed.

In order to impound water for the use of the city, a dam was placed across Trinity river. The water thus impounded backed up the channel of the stream and impeded the escape of water accumulating from rains in Ash creek, which flowed into the river. This obstruction of the flow of water down Ash creek caused the bed of the creek to fill up to a large extent with débris, and the result of which, together with the increased accumulation of water and débris in the river, caused the plaintiff’s land situated near Ash creek to overflow after rains to a greater extent than it had done prior to the construction of said dam, and to such an extent that the land so overflowed could not be cultivated.

The tract of land owned by plaintiff consisted of 478 acres, only 232 acres of which was overflowed. Plaintiff alleged in his petition that before the dam was constructed the tract of 478 acres was reasonably worth $65 per acre as a whole, and that by reason of the construction of the dam it had been damaged in the sum of $35 per acre, or an aggregate sum of $16,720, which was the amount awarded by the jury.

By its first assignment appellant insists that the evidence was insufficient to support the judgment, in that it failed to show .the market value of the land immediately before and immediately after the injury. Plaintiff himself testified that before the injury complained of the land was reasonably worth $65 per acre. He did not give any estimate of the market value of the land immediately after the injury. But he did testify upon the trial as follows:

“I don’t think the land could be sold at all at this time at anything like a reasonable price; I cannot say it has anything like a reasonable market value.”

The evidence shows that the 232 acres of land which overflowed was bottom land lying along Ash-creek, and prior to the construction of the dam had been in cultivation, but that after the construction of the dam plaintiff was compelled to abandon the cultivation of it by reason of the overflows from rains which destroyed the crops planted thereon. The evidence further showed that the balance of the 478 acres was land fit only for pasturage purposes. Plaintiff further testified as follows:

“I testified a while ago that my land at this time, that is, the time before this dam was built, was worth $60 to $65 per acre. Of course, after the dam was built it has some value, but it would be hard to dispose of it at anything like a reasonable value. I don’t know whether I could find a purchaser at all or not, that is, if a man wanted a farm, but if he wanted just a little place to live on and have a few stock on it, it might be all right, but to a man who wanted to farm and make money I don’t believe I could dispose of it to a good farmer.”

B. D. Burgess, another witness, testified with reference to the 232 acres that was overflowed as follows:

“For agricultural purposes land of that kind is absolutely worthless.”

S. L. McNay testified that he was acquainted with the market value of the land before the construction of the reservoir, and that the reasonable market value of the whole tract of 478 acres, taken as a whole, was at that time $65 per acre. He further testified that the 232 acres of valley land which was overflowed was worth $75 per acre, valued separately from the remainder of the tract. Plaintiff further testified that the offiy way he could make a profit out of the tract described in his petition would be to cultivate the bottom land. There was other testimony showing that after the construction of the dam some two or three crops planted upon the bottom land had been destroyed by overflows, and that by reason thereof plaintiff had been compelled to abandon the cultivation of the bottom land altogether. The testimony of the different witnesses relative to the value of the land before and after the construction of the dam clearly showed that they referred to dates immediately before and immediately after such construction. Appellant urged no objection to such testimony upon the ground that such was not their meaning. In the absence of any evidence to the contrary, there is no merit in the contention that there was not sufficient proof upon those issues to sustain the verdict.

It is well settled by the authorities that absolute certainty in proving the amount of damages in such cases as this is not required, hut it is sufficient if such proof enables the jury to assess the damages with reasonable certainty. 1 Sedgwick on Damages, § 178, p. 320; 8 R. C. L. § 195; Larrimore v. Comanche Co., 32 S. W. 367; Springfield v. Dalby, 139 Ill. 34, 29 N. E. 860; Golden v. Heman Construction Co., 100 Mo. App. 20, 71 S. W. 1093. It is also well settled that the jury is not confined to the estimates of value of such property by experts whenever facts are established, as was done in the present suit and as shown by testimony already recited, from which they may reach a reasonable conclusion tested by common knowledge and experience. Houston Belt Ry. Co. v. Vogel, 179 S. W. 268, in which a writ of error was denied, as shown in 188 S. W. xvi; Larrimore v. Comanche Co., 32 S. W. 367; H. & T. C. Ry. Co. v. Hirsch, 160 S. W. 426; Widman Inv. Co. v. City of St. Joseph, 191 Mo. 459, 90 S. W. 763; Brockman Commission Co. v. Aaron, 145 Mo. App. 307, 130 S. W. 116; Sackman v. Freeman, 130 Mo. App. 384, 109 S. W. 818; City of Springfield v. Dalby, 139 Ill. 34, 29 N. E. 860.

The court instructed the jury substantially, in the event of a verdict for the plaintiff upon the issue of the alleged liability of the defendant, the measure of his damages would be the difference between the market value of the entire tract of 478 acres immediately before and immediately after the construction of the dam.

Appellant insists that, as there was no evidence to show that the pasture land, considered separately from the bottom land, had been depreciated in value, there was error in the charge in allowing a recovery for injuries to the whole tract, and that the verdict of the jury upon that basis was erroneous for the same reason.

It is a reasonable deduction from the evidence of the plaintiff, and a matter of common knowledge also, that a reasonable amount of pasture land when sold in connection with a farm has a higher market value than when sold otherwise, and to limit plaintiff’s recovery to damages for injuries .to the bottom land alone would be unfair to him. Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Rourke v. Central Mass. Elec. Co., 177 Mass. 46, 58 N. E. 470; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 181 Ala. 576, 61 South. 934. And it was plaintiff’s legal right to have the jury consider the market value of his land before the construction of the dam for any purpose to which it was adapted and for which he desired to use it. Ft. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; St. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908. Furthermore, the testimony re-fered to already that the bottom land, consisting of 232 acres, had a market value of $75 per acre before the construction of the dam, and by reason of such construction it was rendered worthless, was itself a sufficient basis for a finding that the market value of the tract as a whole had been diminished in an amount greatef than the verdict returned, especially in the absence of any proof .that after the injury the market value of the tract for other purposes was greater than it was for use as a farm. And in this connection it is to be noted that the charge of the court upon the measure of damages was in exact accord with the decision of our Supreme Court in Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237, which has been cited by appellant. It is to be noted further that appellant has cited no evidence, and we have found none in the record, which tended in any manner to show that plaintiff’s land was not damaged by overflows, as claimed by him and as testified to by the several witnesses introduced by him, or controverting the testimony of plaintiff’s witnesses upon the issue of values before and after such overflows.

For the reasons indicated, all of appellant’s assignments of error are overruled, and the judgment is affirmed.
      ffi=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    EVANS et al v. REA et al.
    (No. 2479.)
    (Supreme Court of Texas.
    Feb. 21, 1917.)
    Execution <&wkey;154 — Delivery Bond — Liability Off SURETIES — BffffECT Off BANKRUPTCY off Principal.
    Where, after execution levied upon property of a judgment debtor, he gives a delivery bond with sureties as provided in Rev. St. 1911, art. 3748, the actual and adjudged insolvency of the principal debtor by subsequent bankruptcy proceedings and retention of possession of the property by the bankruptcy trustee do not, under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, relieve the sureties upon the bond from liability thereon.
    [Ed. Note. — For other eases, see Execution, Cent. Dig. §§ 421-424.]
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by William Rea and others against Dave Evans and others. From judgment for plaintiffs, defendants appeal. Question certified by Court of Civil Appeals.
    Question answered in the negative.
    Valentine & Le Gett, of Ft. Worth. D. J. Broofcreson, of Benjamin, and Theodore Mack, of Ft. Worth, and J. S. Kendall, of Munday, for appellant Bank. Harris, Harris & Young, of Ft. Worth, for appellees.
   PHILLIPS, C. J.

The statement of the case as contained in the certificate of the honorable Court of Civil Appeals may be thus summarized:

A judgment was obtained in the County Court of Knox County by the First National Bank of Benjamin, Texas, against J. R. La-gow and A. A. Lagow for $382.50 and costs of suit. Execution having been duly issued and levied upon certain personal property of J. R. Lagow, he, with Dave Evans, Charles Evans and T. A. Cambrón, as his sureties, executed and delivered to the sheriff making the levy a delivery bond as provided in Article 3748 of the Revised Statutes, which was approved by the sheriff. Later, the defendant, J. R. Lagow, executed a deed of trust for the benefit of his creditors, and delivered to the trustee the property which had been levied upon under the execution. Following this, demand was made by the sheriff of the trustee for the property for the purpose of selling it under the execution, but its possession was refused him. The defendant Lagow and the sureties on the delivery bond failed to deliver possession of the property or to pay the amount due upon the judgment and recited in the execution, whereupon the sheriff indorsed the delivery bond as “Forfeited,” and returned it to the clerk of the County Court as required by the statute. Execution was then issued against the defendant Lagow and his sureties upon the delivery bond for the amount due on the judgment, but it was not levied because of an injunction restraining any levy under it. After the return by the sheriff of the forfeited' delivery bond and within four months from' the date of the judgment in the County Court, the defendant J. R. Lagow, the principal in the delivery bond, was duly adjudged a bankrupt by the United States District-Court, and the property which had been levied upon under the original execution was taken possession of by that court. The defendant J. R. Lagow was insolvent at the time of the rendition of the judgment in the County Court, and continued so to the date of his adjudication as a bankrupt. . ...

The question propounded by the Court of Civil Appeals is whether the fact of the actual and adjudged insolvency of the debtor Lagow relieved the sureties upon the delivery bond of their liability thereon.

We answer the question in the negative. The actual insolvency of -the debtor Lagow could not affect the liability of the sureties upon the delivery bond. The condition of the bond, as required by the statute, was alternative, that is, that either the property levied on would be returned to the officer to be sold according to law, or payment of its value, as stated in the bond, would be made. The sureties were clearly liable for the stated value of the property in the event of its not being returned. This undertaking on their part had been entered into prior to the adjudication of J. R. Lagow as a bankrupt, and was in force at the time of such adjudication. That it was impossible for the property to be returned because of the bankruptcy proceeding did not release the sureties from their obligation to pay the stated value of the property if it was not returned in accordance with the other condition of the bond. Nor, under the Bankruptcy Act, did Lagow’s adjudication as a bankrupt impair their liability as co-obligors on the bond to make the payment. "


text:
    O’NEAL et al. v. BUSH & TILLAR.
    (No. 2368.)
    (Supreme Court of Texas.
    Feb. 14, 1917.)
    1. Appeal and Error <&wkey;216(l) — Review- . Requests por Instructions.
    A judgment will npt be reversed for failure to submit an issué where no charge embodying the issue is requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>216(l); Trial, Cent. Dig. § 627.] , .
    2. Appeal and Error <&wkey;1151(2) — Judgment —Reformation.
    Where verdict was for $25,000 and judgment was entered for that amount, the appellate court may, where undisputed evidence shows that amount agreed to be paid was $15,000 and the charge did not authorize recovery for any other amount, reform the judgment and affirm it for the correct amount.
    [Ed. Note. — For other cases, see Appeal and Error,. Cent.' Dig. §§ 4498-A500, 4503-4505; Dec. Dig. 4&wkey;1151(2).]

      Error to Court of Civil Appeals of' Sixth Supreme Judicial District.
    Modification of former opinion reported in 173 S. W. 869, in pursuance of rehearing granted as reported at 177 S. W. 953.
    See, also, 140 S. W. 242.
    Capps, Cantey, Hanger ■& Short, of Ft. Worth, for plaintiffs in error. Flournoy, Smith & Storer, of Ft. Worth, for defendants in error.
   PHILLIPS, C. J.

At a former term we reversed the judgment of the honorable Court of Civil Appeals in this case and affirmed that of the District Court, the opinion of the court being delivered by the late Chief Justice Brown. Some misstatements in respect to the disposition of the case by the Court of Civil Appeals appeared in the opinion which it was Chief Justice Brown’s purpose to correct before the opinion was filed, but through oversight this was not done. For the purpose of making these corrections and re-examining some features of the case, as well, we granted the motion for rehearing of the defendants in error, setting our judgment aside and reserving further decision.

The case in all of its aspects has been thoroughly reconsidered. Save in one material respect it was in our view correctly decided upon the former hearing, and with that correction in the judgment our former determination will be adhered to.

A substantial statement of the case is contained in the former opinion. A judgment for $25,000.00 and interest in favor of the plaintiffs in the suit was rendered in the trial court. This judgment was reversed by the Court of Civil Appeals, upon a holding that the defendants were entitled to have the jury pass upon the issue as to the value of the notes, in excess of $6.50 per acre, given them by Rule and Allen for the land, and the cause remanded for further trial. On rehearing judgment for the defendants was rendered, apparently upon the ground that the plaintiffs’ cause of action was one for damages for the defendants’ breach of their contract to account to the plaintiff for the amount in excess of $6.50 per acre received in the sale to Rule and Allen, and not for the recovery of such excess, as was in fact the action.

There was evidence to sustain a finding, — and under the charge of the court it is to be assumed that such was the jury’s finding,— that Tillar for himself and co-defendant, the owners of the land, agreed with the plaintiffs that in lieu of their making any further payment under their own contract and a closing of the pending transaction for their acquisition of the title, the land might be directly conveyed to Rule and Allen, with whom the plaintiffs, in contemplation of their own purchase, were negotiating for its sale; and that acting with the plaintiffs and in their behalf he would assist in concluding such sale, holding for the plaintiffs as their property, and accounting to them therefor, all in excess of $6.50 per acre that Rule might bind themselves to pay for the land. The sale to "Rule and Allen, for $6.50 per acre and $15,000.00 in excess of that amount, evidenced by secured notes, was thus effected. It is clear that the sale was made through the means of the pending negotiation between the plaintiffs and Rule and Allen, of which Tillar fully availed himself. The result was a sale of his and his co-owner’s land which was entirely satisfactory to himself. Tillar’s attempted repudiation of his agreement with the plaintiffs after the sale to Rule and Allen was virtually concluded and his announcement of a purpose to appropriate the entire proceeds could not destroy the rights of the plaintiffs under the agreement. He undertook the transaction with Rule and Allen under the agreement, and in good conscience was bound to observe it upon concluding a sale which was the subject of it. The plaintiffs owned an equitable interest in the land. They had assisted in closing the transaction with Rule and Allen, and hence were in the attitude of consenting to the passing of their equitable interest by Bush and Tillar’s deed. The conveyance by Bush and Tillar of the legal title therefore passed to Rule and Allen the plaintiffs’ equitable interest by estoppel. In concluding the transaction with Rule and Allen under these circumstances, Tillar, upon clear equitable principles, was a trustee for the plaintiffs to the extent of the excess over $6.50 per acre that Rule and Allen contracted to pay for the land, and rested under the duty of accounting to the plaintiffs therefor.

The failure of the trial court to submit the issue as to the value of the notes accepted by Bush and Tillar, representing the excess over $6.50 per acre agreed to be paid by Rule and Allen in the transaction,, affords no ground for reversing the judgment. Granting that there was evidence raising the issue, the error of the court' consisted in its omission from the charge. No special charge upon the issue was requested. The amount of the notes was, prima facie, their value; and upon the measure of the recovery there was no affirmative error in the charge. A judgment will not be reversed because of a mere failure to submit an issue where no charge embodying the issue is requested. Shumard v. Johnson, 66 Tex. 73, 17 S. W. 398; T. & P. Ry. Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510.

This is also true of the issue in respect to the amount the plaintiffs were entitled to recover if the payment by Tillar of $15,000.00 in notes to Pyron, one of the plaintiffs, was for a commission earned in making the sale to Rule and Allen. Assuming that this payment to Pyron was for such purpose, and not, as Pyron claimed, for the purpose of satisfying other indebtedness due him by Bush and Tillar, and that accordingly there could be no recovery for Ms interest in tbe amount Rule and Allen agreed to pay for tbe land in excess of $6.50 per acre, no special charge presenting tbe issue was requested by tbe defendants; and therefore tbe judgment will not be reversed because of tbe court’s failure to submit it.

In one respect we think tbe judgment of tbe trial court was materially wrong. This is tbe only additional question which we deem it necessary to discuss. The undisputed evidence was that the amount agreed by Rule and Allen to be paid for the land in excess of $6.50 per acre was $15,000.00. The jury found in favor of the plaintiffs in tbe amount of $25,000.00 with interest, and judgment was so rendered. This included the $15,000.-00 agreed to be paid by Rule and Allen in excess of $6.50 per acre and the $10,000.00 which the plaintiffs had previously paid the defendants under their contract of purchase. The charge of the court authorizing a recovery in favor of the plaintiffs was as follows:

“You are instructed that if you believe from the evidence that after plaintiffs and defendants entered into the written contract offered in evidence, dated October 27th, 1906, and before or on May 11th, 1907, plaintiffs had secured an agreement from Rule and Allen, for the purchase by said Rule and Allen from the plaintiffs of all the rights and interest vested in the plaintiffs under and by virtue of the said written contract between plaintiffs and defendants, for the sum of $25,000.00 and $6.50 per acre; and that thereafter and on or about the 11th day of May, 1907, the defendant, Ben J. Tillar, for himself and for the firm of Bush & Tillar, entered into an agreement with the plaintiffs, that they, the defendants, would, in lieu of any further payments which might then be due from plaintiffs under the contract of October 27th, 1906, conclude and make for plaintiffs and themselves, the trade with said Rule and Allen, and make conveyances of or contracts for the land described in said written contract of October 27th, 1906, direct to said Rule and Allen and that defendants would preserve for the plaintiffs’ benefit any advanced consideration or bonus which you believe from the evidence said Rule and Allen had agreed, at that time, to give plaintiffs over and above the $6.50 an acre and that the defendants, Bush & Tillar, and Ben J. Tillar would accept for themselves the $6.50 per acre and give to the plaintiffs, or account to the plaintiffs for all amounts over and above such sum of $6.50 per acre, as they might be able to contract for with said Rule and Allen; and you further believe from the evidence that in consideration of such agreement the plaintiffs notified Rule and Allen that they should deal directly with said Ben J. Tillar with reference to said matters, and they did so deal with said Tillar with reference to said contracts for the sale of said lands; and you further believe from the evidence that the defendants did, in pursuance of said agreements and understanding, if any, contract for the conveyance of said lands (mentioned and described in said contract of October 27, 1906), to said Sidney P. Allen with the guarantee of said Rule and the same was acceptable to said defendants, and they, the defendants, did receive, realize or secure satisfactory contracts for any amount of money in excess of $6.50 per acre for said lands, then it will be your duty to find for the plaintiffs, the amount which you find from the evidence said defendants realized, or secured satisfactory contracts for the payment of, in excess of $6.50 per acre, with interest at the rate of 6% per annum from the date of the consummation of such sale to said Rule and Allen by the defendants.”

This charge does not submit as an issue any agreement upon the part of defendants to pay the plaintiffs all that might be realized by them in the sale of the land in excess of $6.50 per acre, including the $10,-000.00 wMch the plaintiffs had previously paid on their original purchase agreement, and does not authorize a recovery for the latter amount. It deals with the status of the parties as it existed after that payment had been made, and submits, as the predicate for a recovery by the plaintiffs, whether Tillar agreed, m lieu of any further payments by the plaintiffs under their contract, that he and Bush would, for the plaintiffs and themselves, conclude the pending trade between the plaintiffs and Rule and Allen, and would preserve for the plaintiffs any bonus agreed to be paid by Bule and Allen for the land in excess of $6.50 per acre, and account to them for all amounts over $6.50 per acre which they might.be able to contract for with Buie and Allen. In other words, the subject of the charge was whether Tillar agreed that he and Bush would give to the plaintiffs all amounts over $6.50 per acre which Bule and Allen might agree to pa/y for the land; whether any amount in excess of $6.50 per acre was agreed to be paid by Rule and Allen; and the rule of liability in that event. It made no reference to any other character of agreement. A finding that Tillar did so agree would entitle the plaintiffs to a verdict for the amount in excess of $6.50 per acre, that Rule and Allen agreed to pay, but it would not warrant a verdict for an amount not a part of that amount. The charge then authorized the jury, if they found that Til-lar agreed that he and Bush would account to the plaintiffs for all amounts over $6.50 per acre contracted to be paid for the land by Rule and Allen, and that the defendants did receive, realize or secure satisfactory contracts for such an amount, to find for the plaintiffs the amount “which the defendants realized, or procured satisfactory contracts for the payment of, in excess of $6.50 per acre, with interest” This plainly relates only to the amount in excess of $6.50 per acre realized in the transaction with Rule and Allen or for the payment of which they had obligated themselves. As previously stated, that amount was only $15,000.00. Under the charge, therefore, no recovery for a greater amount was authorized. In their printed argument filed in this court the plaintiffs have offered to file a remittitur of $10,000.00, if we should conclude that under the charge no greater amount than $15,000.00 with interest was recoverable. It being an undisputed fact that the amount agreed to be paid by Rule and Allen for the land in excess of $6.50 per acre was $15,000.00, we may reform the judgment and affirm it for the correct amount. The judgment of the Court of Civil Appeals is reversed, and the judgment of tile District Court is accordingly reformed so as to allow a recovery by the plaintiffs in the amount of $15,000.00, with interest at the legal rate from May 11, 190T; and as thus reformed the judgment of the District Court is affirmed.
      dteoffor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    MARSHALL v. ROBISON, Commissioner of General Land Office, et al.
    (No. 2764.)
    (Supreme Court of Texas.
    Feb. 14, 1917.)
    1. Public Lands <&wkey;180 — Competitive Bidding-Rights op Bidders — Statute.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5,409, 5410, and 5416, etc., relating to competitive bidding for state lands, the rights of applicants are fixed by the filing of their applications, and are not affected by reasons of the land commissioner for rejecting bids.
    [Ed. Note. — For other eases, see Public Lands, Cent. Dig. § 584.]
    2. Public Lands &wkey;>172(%) — Competitive Bidding — Statute—Construction.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5410, provides for competitive bidding for state lands offered for sale through the method of sealed bids being filed with the land commissioner. Article 5416 provides that it shall be the duty of the Commissioner to award the land to the one offering the highest price therefor. Held, that the provisions of article 5416 are mandatory, entitling the highest bidder who has complied with the other provisions of the law in making his application to an award of the land, in the enforcement of which right the courts will aid him.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 524-528, 533, 534, 537.]
    3. Public Lands &wkey;>172(]4) — Competitive Bidding — Statute—Construction.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5410 and 5416, where in an application for state land the price per acre stated was in conflict with the total price offered and for which the applicant executed his obligation, less one-fortieth of the “aggregate purchase money” transmitted as required by article 5409, the discrepancy in the price per acre was immaterial, and would not invalidate the bid, but would yield to the aggregate bid as tested by the cash transmitted and the obligation filed.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 524r-528, 533, 534, 537.]
    Mandamus on the relation of Elmer Marshall against J. T. Robison, Commissioner of the General Land Office, and others.
    Mandamus granted.
    J. M. Caldwell, of Midland, for plaintiff. B. F. Looney, Atty. Gen., and G. B. Smedley, Ass’t Atty. Gen., for .defendants.
   YANTIS, J.

This is an original suit by the relator, Elmer Marshall, asking that a writ of mandamus be granted against J. T. Robison, the commissioner of the general land office, requiring him to approve his applications for the purchase of school land sections 2 and 4, block 39, township 4 south, certificates 3185 and 3186, Texas & Pacific Railway Company original grantee, and to require the respondent J. T, Robison, commissioner of the general land office, to cancel the sale made by him to Mrs. J. G. Hall of said two sections of land. Mrs. Hall and her husband were made parties to the suit as co-respondents by the relator.

It was alleged, and is admitted, that the two sections were classified, appraised, and advertised for'sale by the respondent Robison as containing 640 acres of land each, and also advertised that the said sections would be put upon the market for sale under the competitive bidding system on the 20th day of August, 1914, as 640 acres. On July 13, 1914, the relator made application for the purchase of each of said sections, offering therefor $4.50 per acre. The obligation of the relator attached to each application for said sections promised to pay to the state $2,808 as the balance of the purchase money for the section, which, together with $72 in cash, as the first payment which accompanied each of his bids, made the total amount offered by him for each section $2,880. Both applications were written on a form made for such purpose with blanks to be filled in by the applicant. There was a blank under the word “acres” in each application, which was filled out by the applicant by writing therein the figures “640.” There was a blank under the word§, “price per acre,” and in this blank was written by the applicant “4.50.” Above fhese figures was written: “I agree to pay for said land the price per acre specified below.” The concluding parts of the applications consist of what is referred to as “obligation.” It is a promise to pay, in most parts in the form of an ordinary promissory note, the total sum of $2,808 for the purchase of all of said section No. 2, and the same amount for all of said section No. 4, being the balance of the total purchase money which he agreed to pay for each tract of land described, $72 in cash having been paid for each of said sections.

The co-respondent Mrs. Hall made applications also for said section 2 and for said section 4. Each of her applications described the land as containing 640 acres in each section, and for section 2 she offered $4.12½ per acre, and for section 4 she offered $4.06, In her “obligation” for section 2 she bid $2,662.48, which, added to $68.27, which had been paid in cash, made the total sum of $2,730.75 as her bid on all of section 2. Her “obligation” for section 4 was in the sum of $2,594:78, which, added to $66.55, the amount of cash which she had remitted, made the total sum of $2,661.33 as her bid for all of section 4.

The bids of both parties were opened Apgust 21, 1914, and both the bids of each party were rejected by the land commissioner on the ground that section 2, under corrected field notes, contained 662 acres, and section 4, under corrected field notes, contained 655½ acres. He rejected both applications of each party on the ground that they had. applied to purchase only 640 acres, and that the law required all tracts to he sold as a whole, and this attempt to huy a portion only of a tract rendered the applications void. Later, on October 13,1914, after he had been notified of the rejection of his applications, relator filed new applications showing the correct acreage, according to the corrected field notes, showing obligation in his bid for $2,904.53 on section 2, and for section 4 showed an obligation in the sum of $2,8.76, with the correct acreage, according to corrected field notes. He also transmitted sufficient additional cash to amount to one-fortieth of the aggregate price offered. On the day following the filing of these new applications by the relator, to wit, on October 14, 1914, the land commissioner, acting on the two applications of the co-respondent Mrs. Hall, which he had formerly rejected, awarded each section to her. His reasons for making the award on the applications which he had rejected do not appear, and are perhaps immaterial, since the rights of the parties were fixed by the filing of their applications, without regard to his reasons.

It is a mandatory provision of the statutes that the land shall be awarded “to the one offering the highest price therefor.” Article 5416, Vernon's Sayles’ Civil Statutes. This rule cannot be departed from. The state is vitally interested, in selling its public lands, to obtain the highest price which may be offered. In order to secure the highest price which any purchaser is willing to pay for the land, and in order that all prospective purchasers may be treated fairly and with justice, and that partiality may not be shown to any citizen who wishes to buy the land offered for sale, it is provided in article 5410, Vernon’s Sayles’ Civil Statutes, for competitive bidding through the method of sealed bids being filed with the land commissioner, all of which shall be opened on the day following the day when the land comes on the market, said envelopes to be opened and the bids examined at 10 o’clock a. m. on said day. Can any one doubt that one of the main purposes for such competitive bidding is to secure to the state the highest price that any bidder offers for the land? Can any one doubt the meaning of the language of article 5416, Vernon’s Sayles’ Civil Statutes, when it says, “it shall be the duty of the commissioner to award the land to the one offering the highest price therefor” ? Necessarily this rule implies that the land shall not be sold to the lowest bidder therefor. The rule laid down is plain and simple, and is the only safe guide to follow, when once it has been ascertained from the applications which bidder has offered the highest price for the land. The duty is plain that the land should be awarded to him, and, indeed, his rights are fixed so that he is entitled to have the land awarded to him, and the courts will aid him in the enforcement of such right, he having complied, of course, with other provisions of the law by duly making his application, transmitting to the land commissioner one-fortieth of the aggregate price which he had bid for the land, together with an obligation in writing to pay the state the balance of the amount offered in his bid.

It must be conceded that the relator offered the highest price for the tract of land in his first applications, for he offered $2,8S0 for each tract, and properly transmitted to the land commissioner $72 in cash for each section. He executed his obligations, which contain all the ingredients of a promissory note, for $2,808, which, added to the cash transmitted, made a total offer for each entire tract of $2,880, while the total offered on the part of Mrs. Hall, co-respondent, combining both her obligation and the cash she offered for section 2, was $2,730.75, which is $149.25 less than was offered for said section by the relator in his first application. Her total bid for section 4 was $2,661.33, which was $218.67 less than the total offer made for said section by the relator in his first application. This undoubtedly demonstrates that the relator was the highest bidder for each section, and was entitled in law to have each section awarded to him, unless, as contended by the Attorney General, in behalf of the land commissioner, it should be considered that on account of having offered $4.50 per acre for the land, and there being an excess of acreage in each section, according to corrected field notes, his bid was really in excess of $2,880; the amount for which he executed his obligation, combined with the cash which he transmitted, and that, so estimating, he did not accompany his bid with one-fortieth of such sum when calculated at $4.50 per acre, and when calculating section 2 as containing 662 acres, and section 4 as containing 655½ acres, which it is claimed was the true acreage, according to the corrected field notes on file in the land office. It is, of course, true that, if he did not accompany his bid with cash in the amount of one-fortieth of his total bid, then his bid would be void, and should be rejected. It is also true that the amount of his total bid, if estimated at $4.50 per acre for the number of acres in each section, according to the corrected field notes, was in excess of $2,880; but how shall we ascertain what his total bid was? Will it be determined entirely by the fact that his application offered $4.50 per acre, or will it, since the provision offering $4.50 per acre is in conflict with the amount of the aggregate bid, be determined that his total bid for the tract of land was the total amount of money which he offered as a binding obligation in words and figures to pay for the tract of land? His total bid in words and figures was $2,880. This is the total amount for which he agreed to be obligated to pay for each section. Now would it be material for the state to know how much this would amount to per acre? Certainly in substance it would be immaterial, though it might be useful in some way to the land commissioner in keeping his records. As a matter of fact, the aggregate price offered by him for each tract of land would make the land sell for less than $4.50 per acre, when you consider the excess acreage in each section. But that seems to us to be a mere irregularity in the application, even if he erroneously stated that the bid he made would amount to $4.50 per acre. The statute does not require the application to state what price per acre is bid. Article 5416, Vernon’s Sayles’ Civil Statutes, only provides:

“It shall be the duty of the commissioner to award the land to the one offering the highest price therefor.”

This is not a requirement in any sense that he should be fastened down to the method of bidding so much per acre, but it is a requirement that the aggregate amount which is bid by him shall be the highest price offered therefor. Article 5409, Vernon’s Sayles’ Civil Statutes, provides that:

“Tire purchaser shall transmit to the land commissioner one-fortieth of the aggregate purchase money for the particular tract of land.”

It does not fix the price offered per acre as the standard by which to fix the amount of the applicant’s bid, but, instead, it fixes in plain words the “aggregate purchase money” as such standard. There are several ways in which a discrepancy might arise between the price per acre stated in the application and the total or aggregate bid really offered, as shown by the obligation and the cash transmitted. In this instance the discrepancy arose between the stated price per acre and the aggregate amount offered. The discrepancy arose out of the fact that the relator thought the section contained 640 acres, when in fact it contained an excess amount. Such a discrepancy might result from a mere miscalculation. Take as an illustration the bids of the co-respondent Mrs. Hall. A similar error occurred in the amount stated by her which she would pay per acre. Her offer per acre was substantially less than stated when measured by the aggregate amount of her bids for 640 acres, which is the number of acres her applications stated to be in each section. But the land commissioner properly disregarded this error in calculation, and was guided by the aggregate amount of her bids in awarding her the land, but he erroneously held the offer “per acre” to be vital and controlling, instead of the aggregate bids, when passing upon the bids of the relator. Whether such a discrepancy arises from inadvertence or mistake, we think the price per acre stated in the application should yield and be controlled by the aggregate bid offered for the tract of land as tested by the cash transmitted and the obligation filed. When the relator executed and presented his promissory note or obligation payable to the state of-Texas in the sum of $2,808, it was equivalent in law to his offering to the state of Texas in cash that amount, which, combined with the $72 cash transmitted, made $2,880 in cash which he offered the owner of the land as his aggregate bid for the tract. It would seem unimportant to the state of Texas to know whether he had made a mistake in the price per acre stated in the application as being the applicant’s opinion of how much it amounted to per acre. It would seem unfair, unjust, and inequitable to the applicant to refuse to consider his bid at all, and to reject it, even if such miscalculation had been made, when the application showed plainly the amount of his total bid for the entire tract. It would not only be inequitable and unjust to him, but it would be placing such a construction on the meaning of the application as to result in rejecting the highest bid in fact which had been offered for the land, and forcing a sale of it to a lower bidder. In this way the state would be placing a construction upon an application which would require it to accept the lower bid instead of the higher bid, whereas it is to the interest of the state to secure the highest bid.

We conclude that respondent J. T. Robi-son, commissioner of the general land office, should be required to cancel his sale to the co-respondents, Mrs. J. 6. Hall and her husband, J. G. Hall, and to approve the applications of the relator, and to sell and award said two sections of land to him. And, had he filed no new applications, the award would be entitled to be based upon the aggregate price offered by the relator in his original applications; but, since the relator has voluntariiljy, by his applications filed October 13, 1914, tendered his obligations to pay to the state $2,904.53 for section 2 and $2,876 for section 4, together with one-fortieth of such amounts in cash, which are better bids than were offered in his original applications, we think the respondent Robi-son should award said sections to the relator on the basis of his said voluntary applications filed October 13, 1914.

Mandamus granted.

HAWKINS, J., dissents.
      other cases see same topic and-KEY-NUMBER in all Key-Numbered Digests and Indexes