source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    ELLERD et al. v. ELLISON et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 28,1914.)
    1. Trusts (§ 373) — Parol Trust —Existence — Question fob Jury.
    Whether plaintiff, who contracted with O. to purchase certain school lands, agreed to furnish half of the price, O. to take title to one-half the land as trustee for E., held for the jury.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 604-606; Dec. Dig. § 373.]
    2. Trusts (§ 44) — Parol Trust — Weight of Evidence.
    A parol trust in lands may be established by the evidence of one witness, if it is such as to satisfy the conscience of the court that equitable relief should be administered.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68;, Dec. Dig. § 44.]
    3. Mortgages (§ 497) — Mortgagee as Bona Fide Purchaser.
    Plaintiff contracted with O. to share with him in the purchase of school lands which were purchased in the name of O., after which plaintiff leased the land to tenants, who were in possession at the time it was examined by others, who accepted a mortgage thereon from O., in which plaintiff did not join. Held, that the mortgagees were charged with notice of plaintiffs’ interest, which they could have ascertained by inquiry from the tenants, and hence the foreclosure of the mortgage was effective to pass only O.’s interest in the land.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1469, 1471-1473; Dec. Dig. § 497.]
    4. Contracts (§ 142) — School Land — Agreement Not to Bid — Question for Jury.
    Plaintiff E. and O., being prospective purchasers of certain school land to be sold at public sale, after examining the land, agreed to purchase together, and that O. should bid in the land for both at $7 an acre, which was its reasonable value. This bid was filed and accepted, but before acceptance the county judge and commissioners were informed that plaintiff would not bid, and that O. would purchase for both. Held, that whether such agreement was unenforceable as a fraudulent combination to prevent bidding was for the jury.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1826; Dec. Dig. § 142.]
    5. Judgment (§ 736) — Foreclose,!*—Oon-CLUSIVENESS.
    Where, in a suit to foreclose a mortgage on land of which plaintiffs claimed to own a half interest, plaintiffs were not parties, and were refused the right to intervene to set up their alleged right and claim that the mortgage only covered the half interest of the mortgagor, and plaintiffs’ interest was not in issue, a decree foreclosing the mortgage was not res ju-dicata of plaintiffs’ claim to the land.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1264, 1265; Dec. Dig. § 736.]
    6. Judgment (§ 728) — Conclusiveness.
    A judgment is only conclusive on the issues tendered by the complaint, and does not conclude collateral issues or matters of inference arising in the course of the proceeding.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1258; Dec. Dig. § 728.]
    7. Estoppel (§ 63) — Deed—Dealings with Third Persons.
    Where plaintiffs claimed a half interest in land purchased by O. under an agreement that he was to purchase for both, and he subsequently executed a mortgage on the land in 1 which plaintiffs did not join, they were not es-topped to subsequently claim their rights in -the land by subsequent dealings with third parties, nor by a deed to them from O., wherein they covenanted, that the deed was subject to the mortgage debt.
    [Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 63.]
    Appeal from District Court, Swisher County; L. S. Kinder, Judge.
    Action by Reuben M. Ellerd and others against W. P. Ellison and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellants. W. P. Ellison and Etheridge, McCormick & Bromberg, all of Dallas, and Knight & Slaton, of Hereford, for appellees.

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

   HUFF, C. J.

This case was tried in the district court of Swisher county, Tex., on a change of venue from Castro county, by agreement. Reuben M. and J. J. Ellerd, appellants, brought this suit against W. P. Ellison, C. O. Hodges, appellees, and J. A. Stevenson. The first count of the petition is in the ordinary form of trespass to try title, and, by a second count therein, appellants substantially allege that about June 15, 1909, J. J. Ellerd, acting for himself and R. M. Ellerd, entered Into an agreement with one G. T. Oliver, by the terms of which it was agreed that plaintiffs (appellants herein) and said Oliver should jointly purchase from Motley county four leagues of school land, numbered 176, 177, 178, and 179, and situated in Bailey county and that, when said purchase was made the said land should belong to the appellants and said Oliver jointly, each owning a one-half interest; and it was further agreed that said Oliver should actually purchase said land, and the contract should be made in his name. It was to be purchased at $7 per acre on a credit of 26 years, and the purchase price was to bear interest at the rate of 5% per - cent.; the interest payable in advance. Oliver was to furnish the money necessary to make it a binding contract, and it was agreed that he should be reimbursed for one-half thereof by the appellants; that Oliver did make the contract, with the assistance of the appellants, with the commissioners’ court of Motley county, upon the above terms; and that $1,000, was paid as forfeit or earnest money at the time of making the contract, which was to be applied in part payment of the interest for the first year. Oliver obtained the right and option to purchase the land upon the terms set out. Thereafter Motley county conveyed the land by deed to Oliver, and Oliver executed his obligation to the county for the purchase price; that appellants soon thereafter tendered to Oliver, about September 1, 1909, one-half of said sum, which had been paid out by Oliver, and ior which. Oliver was then liable, and requested Oliver to convey to appellants an undivided half interest in said land, and that appellants offered to assume one-half of all the obligations to Motley county, which Oliver refused to accept, denying that appel lants had any interest in said land, and wholly repudiated the contract and agreement; that Oliver did acquire the land, and continued to deny any contract or agreement with appellants for one-half of the land, and refused to recognize the rights of appellants therein; that appellees claimed the lands by and through conveyances and deeds of trust and mortgages and foreclosure of same as against said Oliver; and that at the time said appellees acquired their conveyances, and at any and all times, said appel-lees acquired their conveyances in or to all the liens or rights to the said land, and that they and each of them had both actual and constructive notice of the facts set out in the petition, and knew of such facts which were sufficient to put them upon inquiry, which, if reasonably pursued, would have disclosed the facts set out in the petition. It is further alleged that appellants did not know the amount paid out by Oliver or any of the appellees for the purchase of the land or interest on the purchase money or in the payment of taxes or any other expenditure made by them on account of said land, but they tendered and offered to pay one-half of any and all sums so paid out by Oliver or either of the other parties, and offered to pay the sums which the court might adjudge to be necessary to fully comply with their obligation, or should find just and equitable, and to assume one-half of the obligations due to Motley county by Oliver.

The appellees William P. Ellison and O. O. Hodges answered by disclaiming as to subdivisions Nos. 1 to 15 in League No. 176, according to a certain plat referred to; and, from an order of the court, it appears that James A. Stevenson requested a severance, which was granted as to subdivisions 1 to 15, in League No. 176, which it appears Stevenson claimed to own. Ellison and Hodges answered as to the rest of the land in question by general denial and plea of not guilty, and specially by stale demand, for that since September 1, 1909, to April 28, 1913, the land had greatly appreciated in value, and that they and their predecessors in title had paid out large sums of money on said land necessary and essential to keep in force the contract with Motley county, insisting in all installments of interest upon Oliver’s obligation, aggregating $24,000, and that it would be inequitable to allow appellants to speculate upon the situation. They further set out that on August 12, 1912, they were the owners of the land in fee simple and entitled to the possession of the land, and then were in possession, and that appellants were asserting some sort of claim to the land, and prayed for judgment against appellants, extinguishing their claim, quieting title, etc.

The trial court, at the conclusion of the testimony, instructed a verdict for the defendants, appellees herein, which action of the court is assigned as error, and several grounds are set up by appellants in propositions urging error in the action of the court in so instructing the verdict. The action of the court in instructing the verdict renders it necessary for an examination of the testimony and the several propositions of appellants, as well as those presented by appel-lees.

The first proposition is to the effect that the evidence showed, or tended strongly to show, that the agreement was made between Ellerd and Oliver, as alleged, and was sufficient, to authorize the jury so to find. The undisputed facts in this case show that Oliver entered into a contract with Motley county to purchase the Motley county school lands, which are the lands in question, agreeing to pay $7 an acre on credit, with 5% per cent, interest, payable in advance, on 20 years’ time, and that he paid down as earnest money $1,000, upon the execution of the contract. Thereafter, in compliance with the contract, Motley county executed to him a deed to the land so contracted for; that this contract was entered into on the 15th of June, 1909;' that about September 1, 1909, J. J. Ellerd, for himself and Eeuben M. Ellerd, tendered to Oliver one-half of the $1,000. advanced, and requested that Oliver execute to him a deed for one-half, he (Ellerd) at that time agreeing to assume one-half of the contract price for the land. Oliver refused to accept the money, and refused to deed the land or recognize any agreement with reference thereto. J. J. Ellerd testifies in substance that he went with the county judge and commissioners of Motley county to look at the land, with a view of bidding on or purchasing the land; that he met Oliver some seven or eight miles before they got to the land; and he further testifies that they looked over the land in order to ascertain its quality and location, but that he did not bid on the land, for the reason that he and Oliver entered into the contract to purchase the land together; that he at that time was acting for himself and brother, Eeuben M. Ellerd; and he testifies to the contract substantially as set out in his pleading. Oliver denies that he entered into an agreement with Ellerd, as testified to by El-lerd, but says that he invited Ellerd to go in with him and purchase the land the day previous to his (Oliver’s) closing the contract with the commissioners; that Ellerd said that he did not know for certain whether he would take the land or not, and objected some to its quality. Oliver said that this was the substance of that conversation, but he did not recollect definitely just what the conversation was. Oliver and Ellerd were on the land, looking at it, some two or three days before the contract was concluded between Oliver and the commissioners’ court. Ellerd also testifies that, immediately after the contract was made between Oliver and the commissioners’ court, he leased the land to Goode, Bivens, and Gersig, and that they were to pay ten cents an acre for the land. He further testified that afterwards Oliver offered to trade Mm some other land and pay some money for his (Ellerd’s) interest in the Motley county school lands, and sent to him the abstract for the purpose of examination, and that they had some negotiations. There is no testimony, that we are able to find, in the record, denying that the Ellerds had made an agreement with Goode and others for the lease of the land or denying that Oliver had proposed to trade land and pay money for Ellerd’s interest in the land in question.

It is established in this state, we think, that an oral agreement made to purchase land jointly is sufficient to establish an express trust upon the legal title held by one of the contracting parties, in favor of the other party to the agreement. Sachs v. Goldberg, 159 S. W. 92; Sparks v. Taylor, 99 Tex. 411, 90 S. W. 4S5, 6 L. R. A. (N. S.) 381. This proposition does not appear to be controverted in this case by the appellees, but they present the question and proposition that the unsupported testimony of J. J. El-lerd, seeking to ingraft a trust in his own favor upon the title held by Oliver, is not sufficient and will not support a trust up on the legal title. Appellant asserts the proposition that it is sufficient, and also urges that the testimony of Ellerd is supported by other circumstances, which are not controverted in the record. We think there can be no question but that Ellerd’s testimony presented the issue. If his testimony is true, there was an express trust under the agreement. The appellees cite us to the cases of Whitfield v. Diffie, 105 S. W. 324, Smalley v. Paine, 130 S. W. 739, and Ingenhuett v. Hunt, 15 Tex. Civ. App. 248, 29 S. W. 310, in support of their proposition. An examination of those cases shows that, while the court indicated that the rule is that a trust cannot be established upon the legal title by the uncorroborated testimony of an interested witness, those cases simply hold that, in the particular cases under review, the testimony was corroborated, and therefore it was unnecessary to invoke the rule. We are inclined to follow the rule, as laid down by Judge Eisher in the cases of Mortgage Co. v: Pace, 23 Tex. Civ. App. 222, 56 S. W. 379, and Powell v. Walker, 24 Tex. Civ. App. 312, 58 S. W. 838, and believe that he states the rule correctly and in accordance with the general trend of the authorities in this state in Mortgage Co. v. Pace, 23 Tex. Civ. App. on page 254, 56 S. W. on page 393. After reviewing the authorities of this state, he concludes with the following: “The two-witness rule, or the one with corroborating circumstances, which prevails in some of the states in cases of this and like character, does not exist in this state, except in cases where the evidence is of the character mentioned in the case of Mukelroy v. House [21 Tex. Civ. App. 673, 52 S. W. 1038], supra. Such a rule, we think, has no foundation in principle, for, if the evidence is of such a character, whether it comes from one or many witnesses, as to satisfy the conscience of the court that equitable relief should be administered, no hesitancy should be felt in applying the principles that would govern the particular ease.”

We do not think, from an examination of many of the recent decisions of this state, that two witnesses are required to establish a parol trust, but that one witness may do so, even though he may be the interested party. Where the court or jury, after exercising due caution in weighing the testimony, are satisfied as to the truthfulness of the witness, we see no good reason for making this an exception. Courts, as a rule, have sought for corroborating circumstances, and sometimes seize upon slight circumstances for such corroboration. The testimony of Oliver in this case shows that Ellerd was with him while he was negotiating for the purchase of this land. The commissioners of Motley county were with them. They examined the land together, and discussed its location. Oliver testified: “I invited J. J. Ellerd to join me in the purchase of the land. He made no positive assurance that he would do so. He said the land did not look very good, and that he did not know whether he cared to go in with me. I do not remember the exact words.” Ellerd’s testimony shows he went to look at the land, would have paid the price, $7 an acre, and more; and that he was able to buy, and would have bought, at that time but for the agreement with Oliver. No one contradicted him on these points. It is admitted that he tendered his money to Oliver some time afterwards and requested deeds, etc. He says he took charge and leased the land, and that Oliver offered to trade him land and pay him money for his interest. This is not 'denied or disproved by appellees. These were circumstances, together with Ellerd’s testimony, which, we think, would carry the case to the jury. Oliver invited Ellerd to go in with him to purchase. Ellerd says he accepted the invitation and did not bid on the land because of the agreement. Oliver said he did not accept, but said he did not know whether he would or not. We think this issue should have been submitted for the findings of the jury on the contradicted, as well as upon the uncon-tradicted, facts, and that such facts were sufficient to require a finding by the jury. Grace v. Hanks, 57 Tex. 16.

The second proposition of appellants is to the effect that, at the time of the execution of the mortgage of Oliver to Hodges, it was thereafter foreclosed, under which foreclosure the appellee Hodges purchased; that the appellants were in possession of the land by tenants; and that, under the facts and circumstances, appellees were charged with notice of appellants’ equity. Oliver executed a deed of trust on the land in question to Ellison, to secure C. O. Hodges in the payment of four notes for $12,500 each, dated April 1, 1910, which deed was duly recorded. Subsequently, on the 8th day of December, 1910, a second deed was executed, which was given to secure three notes for $11,094.70 each, on the same land, and to Ellison as trustee, to secure Hodges in the payment of said three notes. These three notes were executed for a portion of the indebtedness secured by the first deed. The debt had been reduced by settlement of a certain contract and sale of the St. George Hotel property in the city of Dallas, the details of which it is believed by us to be unnecessary to set out at this time. These last notes were foreclosed in' a suit in Hall county, ■which had originally been instituted by Oliver to enjoin Ellison and Hodges from selling the land under the power of sale contained in the deed of trust. In that suit Hodges and Ellison set up the notes and lien and asked for a foreclosure. Judgment was therein rendered foreclosing the lien, and, under an order of sale issued thereon, the land was sold and bought in by Hodges, and a deed duly executed to him by the sheriff making the sale conveying the land to Hodges. Before the deed of trust first mentioned was executed by Oliver to Ellison, to secure the four notes for $12,500 each, due Hodges, Hodges, Ellison, and one Pyron, who was then acting for Hodges in the sale of the St. George Hotel property of Oliver, out of which trade the above indebtedness originated, visited the land in question. They each testify that at that time they saw a ranch house near the land, three windmills on the land, all running, with tanks for the purpose of watering the cattle, and cattle around over the land. They made no inquiry whatever as to who owned or controlled the cattle, windmills, and tanks. They testify Oliver told them the land was leased, but they did not ask who the lessee was, and did not ask the lessee from whom they had leased the land. They then made no inquiry as to who was controlling the tanks, windmills, cattle, etc. This trip was made in March, 1910, and upon their return to Dallas, about the last of March, or the first of April, the deed of trust first mentioned was executed. The evidence tends to show that Goode, Bivens, and Gersig and the Van Natta boys were using the land under some sort of lease contract, paying for the use of the grass. That the land in question was inclosed in a pasture of some 12 or 13 leagues of school land, belonging to other counties, all of which was surrounded by a fence. J. J. Ellerd testified Goode, Bivens, and Gersig were in possession from June, 1909, through and during the year 1910, and up until June, 1912, and agreed with him to pay the lease on the appellant’s interest in the land, and that Bivens told J. J. Ellerd that he was protecting him (Ellerd) in his interest in the grass, which was one-half, at the rate of ten cents per acre, and that El-lerd then agreed to let him keep possession of it, and they had possession of this land until about June 1, 1912, and that he (Ellerd) leased it after that to Mr. Ellwood and Mr. Arnett, who, at the time of the trial, had possession of the land.

While the legal title was in Oliver, if El-lerd’s testimony is true, Oliver held an undivided half interest in trust for Ellerd, and Ellerd had placed tenants in possession of the land, who, under the agreement, would pay him one-half of the lease contract. The tenants were therefore holding possession of the land for these joint owners, and had promised Ellerd to see that he should get his one-half and should be protected in his interest. An inquiry of the tenants as to their use and possession of the land and for whom they were holding it would have revealed whether this was true or not. Ellerd is uncontradicted as to this agreement by the record. We think the ease of Kamirez v. Smith, 94 Tex. 184, 59 S. W. 258, supports the proposition that the possession of Ellerd by tenant was a clear and distinct assertion of a claim of ownership, and therefore was an exclusive one, in the sense in which that term is used. The law puts the purchaser or creditor upon inquiry as to the possession, and does not permit him to assume that the possessor was holding under or in subordination to the legal title. Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. It has been held in this state that a tract of land inclosed within the limits of large pasture and used for the purpose of pasturage constitutes constructive notice of the title under which it was claimed. League v. Buena Ventura Stock Co., 2 Tex. Oiv. App. 448, 21 S. W. 307. That cause cites the cases of Taliferro v. Butler, 77 Tex. 578,14 S. W. 191, and Church v. Waggoner, 78 Tex. 200, 14 S. W. 581, which hold that title by limitation may be obtained to a tract of land inclosed with other lands in a large pasture used for grazing purposes, and announce the rule that such possession is sufficient to evidence an exclusive adverse holding.

The appellees cite the case of Fuentes v. McDonald, 85 Tex. 132, 20 S. W. 43, as holding that the mere grazing of cattle on the lands is not sufficient to give notice or to prescribe under the statutes of limitation. The land in that case was not inclosed under a fence and the cattle or stock of others excluded therefrom, but it was used in common by all alike. The evidence in this case tends to show that the land in controversy was inclosed by a fence, and was controlled by the tenants of the appellants and used for the purpose of grazing their own cattle, and for the use of which they paid ten cents per acre. We are inclined to believe the facts in this case raise the issue and are sufficient to have presented to the jury for their finding upon the question of constructive notice.

The appellees contend the trial court wa's correct in instructing the verdict because the testimony of Ellerd shows that, if there was an agreement to create a trust, it was upon a consideration to stifle competition in the purchase of the land, and therefore void on the ground of public policy. Ellerd testified that Oliver told him he had been to quite a little expense to buy the land, and, if he did not get it, it would be hard on him. Ellerd testified: That he told Oliver he had gone over there to examine the land at the request of the commissioners and the county judge, and expected to bid what he thought it was worth. That there were two of them there that wanted the land. A Mr. Ansley was present, but did not desire to buy or bid on the land. That Oliver made the proposition to Ellerd that they buy the land, Ellerd to take a half interest, and that they could make more money out of the land by taking each a half interest at the price of $7 than one could by taking all and paying more. After talking with Oliver, Ellerd talked with the county judge and told him he did not think that they had seen the land as it was situated; that it was shown as being, as he thought, too far north and in the sand hills, and he thought the land owned by the county was better than that shown them by Oliver, and advised them to continue the examination until they had seen the land. He stated he thought the land was worth more than ?7. Oliver had approached him and insisted they take the land at $7 an acre at once; that he (Ellerd) was willing to take the land at $7 per acre if it was just like Oliver showed it, and told the county judge the same thing, and also told Oliver he would take the land if he could bid it in at $7. He did not think he had said anything about bidding on the land himself at that time, and the reason he did not bid was that the proposition of Oliver suited him better. He testifies he was able to have bid individually upon the whole land. If he bought the land or any part of it, he wanted to buy it as cheap as Oliver could; that by the agreement there was only one bid instead of two. ' He testifies he told the county judge he was not going to bid on the land; that he and Oliver had agreed to buy together, and the county judge said that that was satisfactory. The commissioners and the county judge seem to think they had seen the land, and all parties then thought that ?7 was all that it was worth. “I told them if the land was the way I thought it was that I would bid more for the land than $7, and would have paid more but for the agreement with Oliver.” We are cited to no evidence that the land was at that time sold below its market value, or actual value, unless the statement of Ellerd that he would have bid more is such.

We think it may be stated, as the general rule, that a contract entered into by several persons, under which one of them is to purchase property at public sale for the benefit of all. the parties, is void against public policy, and is ground for setting aside the sale, where it appears to have been made to prevent competition at the sale or for any other fraudulent purpose. The mere combination only does not amount to such a fraud as to render the contract unenforceable and to constitute grounds to set aside the sale. This, we think, is the effect of the holding in James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743, and several other Texas authorities. White v. McMath, 127 Tenn. 713, 156 S. W. 470, 44 D. R. A. (N. S.) 1115. The question is: Was the agreement between Ellerd and Oliver an agreement to stifle competition at the sale of the land? Or was it made for any other fraudulent purpose? These questions, we think, are for the jury, under all the facts in the case, and should be left for their determination. Hunt v. Elliott, 80 Ind. 245, 41 Am. Rep. 794; Jenkins v. Erink, 30 Cal. 586, 89 Am. Dec. 134; Bradley v. Coolbaugh, 91 Ill. 148. Parties may lawfully agree to purchase the land jointly, taking it in the name of one. There is nothing against a party refusing to bid on land, and, so long as he does not enter into a combination to prevent competition or for a fraudulent purpose, the transaction is not void. Before the county judge and commissioners accepted Oliver’s proposition, they were informed Ellerd would not bid, but, if Oliver purchased, he would do so for both. The county judge expressed himself as satisfied with the arrangement. If Oliver and Ellerd together, or with the county judge, entered into this arrangement to defraud the county in obtaining a fair price for the land,' then the contract would be nonenforceable, but this should be left as a question for the finding of the jury.

The appellees contend in this cause that the judgment in the Hall county case was res judicata, while appellants contend that the questions therein decided did not involve the issues presented in this case, and therefore do not conclude appellants in this case. In addition to the statement of the facts heretofore set out, we should state that the suit originally instituted by Oliver against Hodges, and which was prosecuted to final judgment in Hall county, was upon a petition for injunction filed by Oliver, setting out at great length the contract between Oliver and Hodges with reference to the sale of the St. George Hotel in Dallas, and a rescission of that trade and the execution of the three notes which were then sought to be canceled, together with the deed of trust on the land because of fraud in the settlement or rescission of the trade therein set out, on tlie grounds that Oliver was mentally incapacitated, by reason of intoxication and the impairment of his mental faculties by continued drinking at that time, and that thereby he was over-reached and induced to enter into the rescission and settlement contract which culminated in the execution of the notes and deed of trust therein sought to be enjoined. Hodges and Ellison •answered this petition at great length, setting out the contract and the settlement according to their view of the matter, and denying any fraud upon their part or the mental incapacity on the part of Oliver. In addition thereto they filed a cross-petition against Oliver, setting up the three notes for $11,094.70 each, asking for a foreclosure of their mortgage lien. The judgment rendered in that court was in' effect that Oliver take nothing by virtue of his petition, asking for cancellation of the notes and deed of trust, and that the lien given to secure the three notes be foreclosed and the property sold to pay the indebtedness. Previous to the rendition of this judgment the Ellerds, appellants herein, brought suit against Oliver in the district court of Castro county, setting up the express trust on the legal title of Oliver, substantially as set out in this case. That case was taken on change of venue to Wilbarger county. The Wil-barger county district court met some months before the Hall county district court, and, during the term of the district court of Wil-barger county, the Ellerds dismissed the suit against Oliver. In the meantime it appears from the record that Oliver executed a special warranty deed on the 12th day of October, 1911, before the case was dismissed in Wilbarger county, and before judgment was rendered in the Hall county case. By this deed he conveyed all of his right, title, and interest in the land to Reuben M. Ellerd, J. J. Ellerd, Pyron and wife, and H. G. Hendricks. On the same day the parties, the grantees in the deed, entered into a contract among themselves, which they signed. This contract recited that J. J. El-lerd has an equitable claim against said G. T. Oliver for a one-half undivided interest in the land in question, referring also to the suit which was thereafter dismissed, and further set out the interest which the respective parties to the contract should have in the land, agreeing also to sign articles of incorporation, enjoying an interest iu the corporation in the proportion to their respective interest in the land; agreeing further to bear their proportional part of the expenses. The clause upon which appellees rely largely is as follows: “It is further agreed that said parties will pay, according to their interest in said land, all fixed charges upon said property, excepting that said G. T. Oliver’s conveyance and this said contract herein made is subject to the indebtedness held by Motley county against said land and the indebtedness and lien held by said Charles O. Hodges in the principal sum of $31,000. * * *” It is also agreed that: “The said I-I. G. Hendricks and the said Reuben Ellerd agree in the litigation styled Reuben M. Ellerd v. G. T. Oliver and others, and G. T. Oliver against Charles O. Hodges, representing all parties in said suit to the best of their skill and ability; the other parties, however, agreeing to pay their expenses in conducting such litigation.” The purported consideration for the sale of Oliver’s interest in the land appears to have been, or is, recited in the deed as $1,500, and there was an understanding or agreement that, if the notes were defeated, he should have an additional sum of $2,000. J. J. Ellerd testified that after that date they were interested in the prosecution of the suit in Hall county.

At the trial of the case in Hall county, the record shows, from motions and pleas filed therein, that, after the case had been in progress for two days, Oliver came into open court and confessed that he was liable on the notes as set out by Hodges’ answer on cross-petition, and requested the trial court to render judgment thereon and for the foreclosure, as prayed for by Hodges in his cross-petition. Reuben M. Ellerd and J. J. Ellerd thereupon filed a motion, called a motion for postponement, setting out the fact substantially that they had purchased Oliver’s interest in the land, and also that they had an equitable interest in half of the land, and that Oliver had, without fh'eir consent, confessed judgment on the note, and asked for ftie postponement until they could prepare théir defense in the matter. The trial court in that case overruled this motion. Whereupon the Ellerds asked and filed a motion to be permitted to intervene in order that they might set up their rights and equities, in some measure setting out what their equities were. The other parties to the contract above set out did not join with the Ellerds. . The court refused the Ellerds’ motion and overruled the same, thereby refusing to grant them permission to intervene. Whereupon the judgment heretofore mentioned was rendered, foreclosing the lien against Oliver as it appeared to be on the 9th day of December, 1910. The appellants, Ellerds, were not made parties, either plaintiffs or defendants, in the Hall county case, and, if they were parties, they were so by an understanding and agreements heretofore set out. In the case now before this court, it does not appear that the Ellerds are resting their rights upon the contract with Oliver or the agreement made with other parties, but are relying alone upon their oral agreement, made with Oliver at the time the land was purchased from Motley county, by Oliver.

The issues joined in the Hall county case were whether or not the notes and deed of trust were void under the facts alleged therein. If they were not, then appellees were entitled to a foreclosure. The lien attached to Oliver’s interest at the time the deed was given, and to no more. If he had only a half interest when Hodges tools the lien, if Hodges lmew that Ellerd had an undivided half interest in the land, or if he was in possession of facts which charged him with notice, then Oliver’s conveyance by the deed of trust would have conveyed to Hodges no more than Oliver’s interest, and the foreclosure would have been only the interest that Oliver then owned. Clearly, before Hodges took his foreclosure, he knew Ellerd was claiming a one-half interest, and, if he desired to preclude Ellerd in that suit, he should have set up the necessary facts requiring Ellerd to maintain his right or be concluded by the judgment. This he did not do.

That judgment did not conclude matters not then directly in issue, or which were only collateral issues, or matters of inference arising in the course of the proceedings. Mortgage Co. v. Macdonell, 93 Tex. 398, 55 S. W. 737; Campbell v. Upson, 98 Tex. 442, 84 S. W. 817; McDonald v. Miller, 90 Tex. 309, 39 S. W. 89. The rule is frequently and broadly stated to be that a judgment “is not only final as to the matters actually determined but as to every other matter which parties might litigate in the cause, and which they might have had decided.” In the case of Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596, this question is discussed by our Supreme Court, and quoting from Freeman on Judgments, § 248, with reference to this matter, the following: “The general expression often found in the reports that a judgment is conclusive of every matter which parties might have litigated in the action is misleading. What is really meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint. It may be that plaintiff might have instituted other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross-bills, and equitable defenses, etc.; * * * but, as long as these several matters are not tendered as issues in the action, they are not affected by it.” The Supreme Court, in commenting on the quotation, said: “That we understand this to be the true doctrine and the principle that all matters are concluded that might have been litigated has, not been differently applied by 'the judgments of this court in cases cited by appellants. The statement has always been made with reference to some matter that was comprehended within the issues in the former action and in causes of action distinct from those before asserted and adjudicated.”

The title or-equity of the Ellerds was not included in the issue in the Hall county judgment. Oliver’s interest was only involved. The judgment foreclosed the lien only as it existed on the 9th day of December, 1910. That lien was fixed on the land at that time and to such interest as the law and equity under the facts fixed in Oliver, and no greater. Under the pleadings in the Hall county case, the equities of the Ellerds could not have been adjudicated, and, as we understand the decisions of the courts, appellants were not required to put their equities in issue or have them concluded. It was not the time or place for them to do so. If appellees desired to remove the equity or claim of Ellerds as a cloud upon their title, they had a right so to frame their pleadings; but, having failed to do so, we do- not think it can be said that the judgment concluded the equitable interest of the Ellerds. On the question of the failure of the trial court to permit Ellerd to postpone the cause upon Oliver confessing judgment in that court on the notes and refusing to allow them to intervene, we think should not be construed as a determination of the equities claimed by El-lerd in this case.

In the case of Converse v. Davis, 90 Tex. 462, 39 S. W. 277, the Supreme Court said: “The fourth special exception was improperly sustained because it does not appear from the petition that the.cause of action here asserted, the right to have a substitute trustee appointed, was in any way involved in the cause of Davis v. Andrews, and because it does appear from the petition that, in said cause, neither the existence of the debt nor the validity of the lien was adjudicated, but it was simply held that, on account "of the defense of limitation of four years set up by Davis in avoidance of a judgment against him, the executors were not entitled to a personal judgment on the notes and a foreclosure on and judicial sale of the property. While the prima facie effect of a general decree is to adjudicate every issue raised by the pleadings, it has never been held, in any ease that we are aware of, that a decree adjudicates any issue which the court therein expressly excludes from its determination.” Norris v. Belcher, etc., 98 Tex. 176, 82 S. W. 500, 83 S. W. 799; Guthrie v. Pierson, 35 S. W. 405.

Conceding that Ellerds were really parties at interest in the suit at the time of the rendition of the judgment, it nevertheless affirmatively appears that the equitable -interests of the Ellerds were not adjudicated in that case, and that the trial court refused to permit the issues to be made and tried in that cause. We do not think res judicata will estop appellants in this case. There in fact is no plea of estoppel by judgment set up in this case by the appellees, and we think it very doubtful whether, under the appellants’ petition, the plea by estoppel could be dispensed; but inasmuch as the testimony does not appear to have been excepted to, and both parties have devoted much of their brief to this question, we thought it proper, as the case will be reversed, to express our views on this question.

Appellees, by counter proposition, assert the Ellerds are estopped because they took a deed from Oliver wherein they covenanted that such deed was subject to appel-lees’ mortgage debt. In the first place, there is no estoppel alleged by virtue of this deed, and the appellants in this case do not assert any right under that deed or the agreement made at that time, and, in the next place, the appellants do not sue for Oliver’s interest in the land, but from the pleadings and evidence recognize that appellees have Oliver’s interest, which is one-half of the land. True, they acquired Oliver’s interest, subject to the mortgage, and could not set up that title to that interest as against the mortgage without offering to pay the debt, but the half interest for which they sue was acquired before the mortgage, if there was in fact any such interest acquired. The subsequent dealings of the Ellerds with other parties we do not think can be shown by appellee to defeat Ellerds’ prior equity as' an estoppel. There could be no estoppel as to the half interest sued for in this case. Appellees, by such deed and contract, were not thereby induced to take the deed of trust from Oliver on the land, or to in any way change or alter their position. Kopplemann v. Kopplemann, 94 Tex. 40, 57 S. W. 570. The deed and contract is perhaps admissible as any other fact would be admissible, but not as an estoppel to appellants’ claim or an express trust for one-half of the land.

We believe the court was in error in instructing a verdict for the appellees, but that he should have submitted the issues to the jury for their findings.

The'judgment will therefore be reversed, and the cause remanded.

HENDRICKS, J., not sitting.


author: HENDRICKS, J.

text:
    MITCHELL v. MORGAN et ux.
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.
    Rehearing Denied April 11, 1914.)
    1. Mortgages (§ 32) — Mortgage or Sale.
    That an instrument is an absolute deed in form would not prevent a showing that it was intended as a mortgage; the test for determining whether it is a deed or mortage being whether the relation of debtor and creditor existed between the parties after the execution of the instrument.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.]
    2. Attorney and Client (§ 104) — Knowledge oe Attorney — Imputation to Client.
    If the attorney representing the mortgagee in the execution of an instrument claimed to be a mortgage had notice that the property was homestead property, such notice would be imputed to the mortgagee.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 92, 93, 1020; Dec. Dig. § 104.]
    3. Mortgages (§ 38) — Absolute Deed as Mortgage — Sueeiciency oe Evidence.
    In an action to cancel a deed on the ground that it was intended as a mortgage and conveyed the homestead property, evidence held to sustain a finding that the conveyance was intended as a mortgage, and not as a conditional sale."
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dee. Dig. § 38.] .
    4. Homestead (§ 214) — Mortgage—Notice oe Homestead Character — Sueeiciency oe Evidence.
    In an action to -cancel a deed claimed to have been intended as a mortgage, on the ground that it covered homestead property, evidence held to sustain a finding of notice to the mortgagee that the property was homestead property.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ £97-399; Dec. Dig. § 214.]
    Appeal from District Court, 1-Iale County; L. S. Kinder, Judge.
    Action by Choc Morgan and wife against T. S. Mitchell. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    C. D. Russell, of Plainview, and Cooper, Merrill & Lumpkin, of Houston, for appellant. Fred C. Pearce and Y. W. Holmes, both of Plainview, for appellees.

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

   HENDRICKS, J.

The appellees, Choc Morgan and wife, Willie Morgan, sued the appellant, T. S. Mitchell, in the district court of Hale county, Tex., for the purpose of canceling a deed of trust, executed by them on December 4, 1909, embracing certain residence property in the town of'Plainview, as well as to cancel a warranty deed of date January 20,1912, executed and acknowledged by appellees, and on its face conveying the property in controversy to the appellant, Mitchell, the same property embraced in the mortgage and deed of trust and executed and delivered in 1909. The deed of trust and mortgage were executed by appellees for the purpose of securing the appellant in the payment of a certain note for the sum of $650, bearing interest from date at the rate of 10 per cent, per annum, and stipulating for the usual attorney’s fees. The subsequent warranty deed was in the usual form, reciting a cash consideration of $725, and, as a part of the same transaction of the execution and delivery of said deed, the appellant, T. S. Mitchell, executed and delivered to Morgan the following instrument: ‘‘The State of Texas, County of Potter. Know all men by these presents, that we, T. S. Mitchell, of Potter county, Texas, and Choc Morgan, of Tarrant county, Texas, have made and entered into the following contract and agreement, to wit: Whereas, heretofore, to wit, on the 20th day of January, 1911, the said Choc Morgan, joined by his wife, Willie Morgan, made, executed, and delivered-to the said T. S. Mitchell, their certain warranty deed of conveyance, conveying lot No. 3, in block No. 34, in the town of Plainview, Hale county, Texas for and in consideration of $725.02; and whereas, as a part of the consideration for said conveyance, it was understood and agreed between the said T. S. Mitchell and the said Choc Morgan that the said Choc Morgan should have and be entitled to the privilege of repurchasing the property so conveyed at any time within twelve months from this date: Now, therefore, know all men by these presents, that X, T. S. Mitchell, for and in consideration of the recitals hereinabove mentioned, do hereby contract, obligate, and bind myself to roconvey the above-described property to the said Choc Morgan, or to any person selected by him, at any time within twelve months from this date upon the repayment to me of the said $725.02, together with all accrued interest at the rate of 10 per cent, per annum, which may have accrued on said amount at the time and at the date of said request; and I do hereby contract, obligate, and bind myself, my heirs, executors and administrators, to carry out the provisions of said contract and agreement so made and entered into with the said Choc Morgan. Witness my hand at Amarillo, Texas, this 20th day of January, A. D. 1912. T. g. Mitchell.”

, The appellees contended in the trial court, and repeat here, that the property embraced in the mortgage and purporting to have been conveyed in the deed was their homestead, and that both of said instruments were mortgages, and consequently void. The appellant, in the. main, contends that the evidence was insufficient to go to the jury; that the deed of conveyance did not constitute a mortgage, and was, in fact, what it shows on its face to be, a conditional sale.

Of course, it is well settled that the form of the instrument does not preclude testimony to show that it was a mortgage. The supreme test with the real character of the instrument is whether the relation of debtor and creditor continued to exist between Morgan and Mitchell after the execution of the purported deed and the instrument providing for a reconveyance. Mrs. Morgan testifies that, at the timé the deed of trust was executed by her, she notified the attorney representing Mr. Mitchell in the preparation of the instrument that the property was their homestead, and that she was reluctant to sign the mortgage on the home. The attorney was upon the stand, and this statement is not denied. This is adverted to for the reason that at this particular time Morgan and his wife executed a designation of a lot in the town of Mineral Wells as a homestead, with reference to which the appellant Mitchell testifies he relied upon when the mortgage was given.

If the attorney representing Mitchell in the transaction had notice that the particular property was the homestead, such notice would be imputed to Mitchell, and the purported designation, if for no other reason, would be unavailable. A short time prior to the execution of the mortgage, Morgan and his wife resided at Plainview, and moved to Amarillo, where the mortgage was executed, living in said city for about two years, then moving to Ft. Worth, and returning to Plain-view some time in January, 1912. While Morgan and wife were in Ft. Worth, the note was placed in the hands of an attorney at Plainview for collection; Morgan asserting that at this time he only owed Mitchell $325, and that Mr. Mitchell agreed to advance him $400 more, making in all $725, which is the consideration in the deed. The appellant contends that the agreement be-twéen the parties was for a conveyance of the property, with an option for repurchase extended to Morgan,’ and that the $725 recited in the deed represented the balance owing him upon the previous note and one-half of the attorney’s fees, which the Plainview attorney agreed to receive, and certain expense money which he agreed to furnish to Morgan for the purpose of the latter moving back to Plainview. 'As to a phase of this evidence in regard to the amount due, with certain additions of money agreed to be furnished, neither of the parties seems to be correct.. Mitchell’s claim is that the conveyance was to pay for the amount due on the $650 note, including the attorney’s fees paid to the Plainview lawyer, and an additional $75. There was a credit upon the note, and, by calculation of the legal amount due, including the additional amounts, the $725 recited in the deed is inadequate; and deducting the credit, adding the balance, principal and interest, to the sum of $400, which Morgan says Mitchell agreed to let him nave, also amounts to more than $725. Morgan does not assert that he paid any other money than the $112 credited upon the note. Morgan testifies that, at the time he borrowed the money from Mitchell, the latter demanded a deed to the property, “in order to make it legal — in order to borrow money.” The testimony shows that Morgan paid the sum of $1,-300 for the property when he purchased the same, and it is asserted by him that he moved into the property upon his return from Ft. Worth, without the consent of Mitchell.

Mitchell testifies that he informed Morgan that if the property was vacant when he returned to Plainview, that he would rent it to him, and afterwards informed him that Sanders & Greer, rental agents at Plainview, had the renting of the property. Mrs. Morgan testifies that on their return from Ft. Worth to Plainview by the way of Amarillo, just after the execution of the deed, the following conversation occurred with Mitchell at the Santa Fé depot in Amarillo: “Mr. Mitchell said: ‘Mrs. Morgan, I understand that you don’t understand the contract between me and Choc.’ And X says: ‘You are certainly mistaken, for I have never mentioned it to any one.’ And he says: ‘The contract is like this: Choc owes me $325, and the balance of this money I am letting you all have. It is merely an accommodation of mine to help Choc.’ And he says, ‘X don’t want your place;’ and I replied, ‘It is home to us, and all we have.’ ” She further testified in this conversation she told him, “I understood, when we signed this deed, it was to borrow $700 as a mortgage on my home,” and that Mitchell replied, “Choc owed me $300 of this money, and the balance of it I am letting him have.” The effect of this is that Mitchell understood, if such a conversation occurred when the agreement was made as to the execution of the deed, that the loan continued for a part of the old debt, as well as the additional amounts agreed upon. Mitchell denied this conversation, giving his version of 'the same, the jury, however, resolving it against him, and by which we are bound. Mitchell’s statement is that, wh'en Morgan and wife came through Amarillo on their way to Plainview, Morgan wanted him to explain to his wife with reference to the agreement as to the option and the right of repurchase. He says: “I told her that they owed me the amount stated in the deed as I remember it, and that he had an option to rebuy and could buy the property back within 12. months for that amount, with interest. I didn’t say anything else to Mrs. Morgan in the conversation had with her at the depot.” This statement, while not wholly inconsistent with the theory of a conditional sale, is also not inconsistent with the theory of a mortgage. It is noted that the instrument executed by Mitchell, obligating himself to reconvey the property, provides for the repayment to him of “$725.02, together with all accrued interest at the rate of 10 per cent, per annum, which may have accrued on said amount at the time and at the date of said request,” — meaning the request for the reconveyance.

Justice Gaines said, in the case of McCam-mant v. Roberts, 80 Tex. 328, 15 S. W. 1054: “The fact that the money which is to be paid is to bear interest is always a circumstance which indicates the existence of a debt, and hence a mortgage.” Of course, if the conveyance in question extinguished the debt, and the parties so intended, and it was not as a mere security for said debt, the assertion of the homestead right would be as unavailing as though the property were actually purchased with money delivered without any pre-existing indebtedness entering into the consideration for the conveyance. While the instrument quoted herein extends the privilege to Morgan of repurchasing the property, it, in effect, says in another portion, as stated above, this repurchase is upon the “repayment” to Mitchell of the $725, together with “all accrued interest” at the rate of 10 per cent, per annum, and is just as consistent, if not more so, with the theory of an indebtedness existing between the parties as the theory of an actual conveyance canceling a previous indebtedness, and of additional money actually paid.

This, in connection with the testimony upon appellant’s theory of the' case, we are inclined to think, fulfills the measure of the law, being bound by the jury’s verdict in proving a mortgage. Miller v. Yturria, 69 Tex. 549, 7 S. W. 206; Ruffier v. Womack, 30 Tex. 341; De Bruhl v. Maas, 54 Tex. 464; Alstin v. Cundiff, 52 Tex. 453; Brown v. Wheelock, 75 Tex. 385, 12 S. W. Ill,' 841; Harrison v. Hogue, 136 S. W. 118; Wilcox v. Tennant, 13 Tex. Civ. App. 220, 35 S. W. 865.

We aliso think there is sufficient testimony in the record of notice of homestead rights, and we believe the appellees’ pleadings in this cause are sufficient against the general demurrer.

We have attempted to carefully consider all of the assignments, and think the crucial question is the one discussed, and order an affirmance of the judgment.


author: McKENZIE, J.

text:
    SOUTHERN PAC. CO. v. VAUGHN.
    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1914.
    Rehearing Denied April 16, 1914.)
    1. Master and Servant (§ 270) — Actions eor Injuries — Evidence—Notice.
    . In an action for the death of a railroad engineer, by the explosion of the boiler on April 9th,_ where a witness testified that he ran the engine in question several times, before the explosion, and that on all such trips the-water circulated through the water glass, so that it was unserviceable, and that he reported such condition on the first trip, and on two different occasions on regulation report blanks, and there was other testimony bearing directly on the condition of the water glass from the first part of January to- the day of the accident, the testimony as to the condition of the water glass on the occasion of the first trip by such witness in January though remote, was admissible on the issue of notice of the defective condition, there being no evidence that it had been repaired subsequent to such trip.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.]
    2. Appeal and Error (§ 1050) — Harmless Error — Admission oe-Evidence.
    In an action for the death of a railroad engineer, caused by the explosion of the boiler, the admission of testimony as to the defective condition of the water glass on the engine three months before the accident, though remote, was harmless, where another witness testified to the same effect without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ,§§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Master and Servant (§ 267) — Actions eor Injuries — Evidence—Interstate Commerce.
    In an action under the federal Employers’ Liability Act (Act April' 22, 1908, c. 149, 35 Stat: 65 [U. S. Comp. St. Supp. 1911, p. 1322]), for the death, in Arizona, of a railroad engineer who took charge of an east-bound train at Yuma, Ariz., evidence as to the kind of commodities shipped from Yuma, and that most of the lumber and oil shipped over defendant’s lin'es to the east came from California, was admissible on the issue of whether deceased was engaged in interstate commerce at the time of the explosion.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 909, 911; Dec. Dig. § 267.]
    4. Master and Servant (§ 284) — Actions fob Injuries — Questions for Jury.
    In an action for the death of a railroad engineer under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Oomp. St. Supp. 1911, p. 1322]) evidence held to make a question for the jury as to ■whether deceased was engaged in interstate commerce at the time of the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. -Dig. § 284.]
    5. Trial (§ 139) — Taking Question from Jury.
    To justify the court in taking á question from the jury, the evidence must be such that there is no room for ordinary minds to differ as to the conclusion to be drawn therefrom.
    [Ed. Note. — For other cases, see Trial, .Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    6. Death (§ 99) — Actions for Wrongful Death — Excessive Damages.
    A verdict for $20,000, under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), apportioned equally between the wife and one minor child, for the death of a railroad engineer 31 years old, in good health, earning about $175 a month, most of which was expended in the support and maintenance of the wife and child, was not excessive.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by Nellie Araughn against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall & Kemp, of El Paso, Baker, Botts, Parker & Garwood, of’ Houston and Wm. F. Herrin, .of San Francisco, Cal., for appellant. Lea & Nagle and McBroom & Scott, all of Ed Paso, for appellee.

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

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

   McKENZIE, J.

This suit was brought in the district court of El Paso county by Nellie Vaughn, administratrix and personal representative of the estate of Clyde C. Vaughn, deceased, against the Southern Pacific Company, to recover damages for the use and benefit of herself and her minor child, Clyde C. Vaughn, Jr., for the death of said Clyde C. Vaughn, who was her husband, and who was the father of said minor child, and who died on April 9, 1912, by reason of injuries sustained while in the employ of the appellant as a locomotive engineer, said injuries having been caused from an explosion of the boiler of the locomotive which he ■ was operating. Trial was had upon a first amended original petition, it having been filed March 28, 1913, in which it is alleged that Clyde C. Vaughn was employed by defendant as locomotive engineer, operating a freight train between Turna and Phoenix, both being in Arizona; that while engaged in interstate commerce, through the negligence of defendant, the boiler to the engine on which he was working as engineer exploded, and blew it up at Stanwix Station, in the state of Arizona, in consequence of which he was killed; that the boiler which exploded was unsafe and unsuitable to be used as such, for the reason that it was old, worn, burned, defective, muddy, dirty, and corroded; that the defendant had failed in its duty to furnish him with a safe engine, boiler, and appliances, and had failed to carefully and frequently inspect the same, and to repair the same and keep it in safe condition, and by reason of said negligence the explosion- occurred ; that the gauge cocks and water glass on said engine were defective, and did not properly register the amount of water in the boiler, and could not be used by the engineer to ascertain whether or not there was sufficient amount of water in the boiler; that at the time of the said accident, defendant was engaged in interstate commerce, and that said Vaughn was employed on the engine as an engineer, engaged in hauling interstate shipments of freight and merchandise into and through the state of Arizona; that the suit is brought under what is known as the federal Employers’ Liability Act and the federal Safety Appliance Act, and the amendments thereto, she alleging that she relied solely on said act for recovery. Defendant answered by general and special demurrers, general denial, a plea of negligence on the part of the deceased in failing to keep the boiler of the locomotive properly supplied with water, and by pleas of contributory negligence and of assumed risk. Trial was had before a jury, and resulted in a verdict and judgment for appellee for the sum of $20,-000, apportioned equally between her and the minor child.

Appellant’s first assignment of error complains of the action of the trial court in overruling its objection to certain answers to questions of the deposition of M. G. Seeley, a witness for plaintiff,, who answered, in response to certain interrogatories, that the water glass on the engine was unserviceable as a guide to the true water level in said engine when he was operating same the first week in January, 1912, the specific objection being that the evidence was too remote. Adverting to the evidence of the witness, we find that he testified in connection with and including the testimony as objected to, as follows: “I had engine 2739 some time previous to the date of the explosion. I have been in charge of the engine and boiler of engine 2739 as a locomotive engineer. I ran engine 2739 four times. First time in the first week in January, 1912, and about one month later ran the engine two trips, from Tucson to Mescal, and in March or April ran engine 2739 from Tucson to Bowie. That is the four trips. The first time I ran engine 2739 was the first week of January, 1912. During this trip the water circulated or rose in the glass in such a manner that I could not tell definitely the location of the water in the boiler. On the trip just referred to the water glass was not a reliable guide. On all four trips where I had engine 2139, the water circulated or bubbled up through the glass to such an extent that it rendered the water glass unserviceable as a guide to the true water level in the boiler. I did report the water glass upon my arrival in Yuma, when I had the engine on the first trip in January, 1912. I also reported the water glass upon two different occasions, when I arrived in Tucson with the engine frofii trips up the hill; said reports were upon regulation report blanks.” True, the testimony in point of time appears to be remote, and the mere statement that the water glass was out of order the first week of January, standing alone, would not perhaps be admissible to prove that it was out of order on April 9th, when the accident occurred; but when the testimony of the witness is considered as a whole, and in connection with other testimony in the record which bears directly upon the condition of the water glass from the first part of January to the day of the accident, we are of the opinion that the testimony was material and admissible as bearing upon the condition .and sufficiency of the water glass before and at the time of the accident. It being shown that the water glass was out of order before the accident, the defendant could have shown by testimony that since said time it had been repaired. This it had not shown, the only testimony offered being that of the witness Martinez, who was employed by defendant as hostler, and who testified to the effect that the day before the accident the engine was in the roundhouse at Yuma; that the engine was called for at 1:50 a. m., on April 9th; that he examined the water glass, and it was in good condition, and that the gauge cocks were open. In our opinion the objection urged against the admission of the testimony relates more to its • weight than to its competency. We hold that the testimony was admissible upon the general issue of notice, and as effecting the defendant with notice of the defective condition and insufficiency of the water glass.

The testimony was made harmless by reason of the testimony of the witness H. R. Vaughan, who testified without objection, as follows: “As to whether or not the water glass had been giving trouble before that time (April 9, 1912) I had never had any trouble with it. I don’t remember how many times I had the engine, but I had it ■ quite a bit in January. I had a little trouble with it in January, when it acted as though the water was light, and raised and lowered, foamy. There was some complaint about the water glass on that engine in January. "The water would raise and lower like it was light and foaming.” T. & P. Ry. Co. v. Good, 151 S. W. 617; M., K. & T. Ry. Co. v. Reno, 146 S. W. 207; G., H. & S. A. Ry. Co. v. Udalle, 91 S. W. 331. For the reasons indicated we are of the opinion that the assignment of error should be overruled.

Appellant’s fourth assignment of error is as follows: “The court erred in overruling defendant’s objection to the question propounded by plaintiff’s counsel to the witness P. Sheedy, as to where most of the lumber comes from that is shipped over the Southern Pacific lines east, and as to where most of the oil comes from that is shipped over the Southern Pacific lines east; and the court erred in overruling defendant’s objection to the answer to said questions that most of the lumber and oil came from California, which was objected to on the ground' that the evidence was immaterial and irrelevant, and not tending to prove any issue in the case; and the court erred in overruling defendant’s objection to the questions propounded by plaintiff’s counsel to the witness P. Sheedy as to what products were raised in and around Yuma, and what commodities were shipped out of Yuma, on the ground that the same was immaterial and irrelevant, and did not prove any issue in the case; and the court erred in overruling defendant’s motion in writing to strike out and withdraw from the jury the evidence of the witness P. Sheedy that most of the lumber and oil shipped over the Southern Pacific lines to the East came from California; and the court erred in overruling defendant’s motion in writing to strike out and withdraw from the jury the evidence of P. Sheedy as to the kind of products that are grown in and around Yuma, and as to the commodities that are shipped from Yuma, as is shown more fully by defendant’s bill of exceptions No. 4.” This assignment is first submitted as a proposition and must be overruled, because, in our opinion, the testimony objected to was material to the issue of whether or-not the deceased was engaged in interstate commerce at the time of the explosion of the engine. Under “additional proposition under above assignment” appellant contends that: “Plaintiff having failed to introduce any other testimony in connection with that of the witness P. Sheedy, to show that the train in question was engaged in interstate commerce at the time of the explosion, the court erred in overruling defendant’s motions in writing to strike out and withdraw from the jury all of the evidence of the witness P. Sheedy, as to where most of the lumber and oil shipped over the Southern Pacific lines east came from, and as to the kinds of products that are grown in and around Yuma.” In answer to the proposition we find that there is other testimony bearing directly upon the issue, as will more fully appear from the evidence set out by us in making disposition of the next succeeding assignment of error. The assignment of error is" therefore overruled.

By appellant’s fifth assignment of error, complaint is made of the action of the trial court in refusing to peremptorily instruct the jury to return a verdict for it. The requested charge is as follows: “Gentlemen of the jury, plaintiff having failed to show that the engine and train in question, being operated by Engineer Vaughn at the time of the explosion in question, was engaged in interstate commerce, you are instructed plaintiff cannot recover, and are, therefore, charged to return your verdict for defendant.” Confining ourselves to the exact point raised by this assignment, in our opinion the evidence is sufficient to sustain the verdict of the jury, and also sufficient to require the court to submit the case to the jury. Patrick Sh'eedy, a witness for the defendant, testified that he was superintendent of motor power for the defendant company, with his headquarters at Los Angeles, and that his division extended east to the Rio Grande. “That the Southern Pacific Railway runs from San Francisco in California through ■Yuma, right on the line there and through the state of Arizona, through New Mexico, to the Rio Grande river. * * * If 50 cars were going east from Yuma, it is quite likely the greater portion of them would be brought from California. * * * The Southern Pacific Company carries oil from Bakersfield east; as to where most of the lumber comes from that is shipped over the Southern Pacific lines east, we have several points where lumber is taken in. Lumber shipments going' through to the East generally originate at San Pedro, a shipping port on the west coast of California.”

The witness Daniel Edward Norton testified that he was fireman on engine 2789 at the time of the explosion; that Yuma is in the state of Arizona on the California line, on the west line of Arizona; that the Southern Pacific Road runs through the states of California, Arizona, and New Mexico. That “Mr. Vaughn and I got o'n the engine at Yuma, Ariz., going east, moving the train east from California, toward El Paso. It was a freight train. I should judge it to have been of about 50 cars.” He further testified that deceased, at the time of the explosion, was in the employ of the Southern Pacific Company as an engineer, and was operating the engine pulling said train at the time of the explosion.

The witness R. H. Vaughan, a witness for defendant, testified: That he was a locomotive engineer in charge of the engine which was pulling the train following the one which was being operated by C. C. Vaughn. That he saw the wrecked train in one hour and a half to two hours after the explosion. That the train that was being pulled by the engine which was operated by the deceased consisted of box cars, oil, and lumber. That: “As to where the oil cars are loaded on the Southern Pacific, they are loaded at different points. I think they got most of the oil in the Bakersfield district in California. I think this is the biggest oil field there or in there. I don’t know how many oil cars there were, so couldn’t say. I don’t know where they get the lumber from in that section of the country. There are no sawmills around Yuma that I know of. There are no other lines running into Yuma, except the Southern Pacific, or its branches; that’s all, I believe. There is a branch or two out of there, and they all go into California. This train was going east through Yuma. Yuma is right on the line of California and this state, just this side of the Colorado river, which is the line there.”

The witness Martinez testified: “I think the train that this engine was hooked onto came from the west because it was going out to the east.”

We are of the opinion, therefore, that the evidence quoted, when taken in connection with the entire transaction, amply sustains the jury verdict, and that thé engine and train in question, being operated by Engineer Vaughn at the time of the explosion in question, was engaged in interstate commerce. In the light of .the foregoing testimony, we do not think that the court would have been justified in withdrawing the question from, the jury. It is well settled that in order to-, justify the court to take the question from the jury, “the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” Choate v. Railway Company, 90 Tex. 82, 36 S. W. 247, 37 S. W. 319. Applying the foregoing test to the instant case, we are of opinion that the assignment of error should be in all respects overruled.

The sixth and last assignment of error complains of the verdict of the jury as being grossly excessive in the amount of damages awarded, and as being caused by the sympathy aroused for the widow, who-testified in the ease, and who was present during the entire trial with her infant child. It is shown by the evidence that the deceased was 31 years of age, in good health, was earning about $175 per month, most of which was expended in the support and maintenance of his wife and child. No sufficient reason is assigned, in our opinion, why the-verdict of- the jury should be disturbed, and the assignment of error is therefore overruled.

For the reasons indicated, we are of opinion that no error of a reversible character has been committed upon the trial of the-case, and the judgment is therefore affirmed.

Affirmed.


author: HALL, J.

text:
    GROVES v. WHITTENBERG.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.
    On Motion for Rehearing, April 18, 1914.)
    1.Specific Performance (§ 123) — Defenses —Abandonment and Repudiation — Question for Jury.
    The defenses of abandonment and repudiation of a contract by the party suing for its specific performance depend on intent, and are for the jury.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 397-399; Dec. Dig. 123.]
    2.Judgment (§ 589) — Res Judicata — Questions Concluded.
    Where a purchaser in a contract for the purchase of real estate secured a quitclaim deed from third persons, and then brought trespass to try title against the vendor, who obtained judgment, the judgment was not res judicata in a suit by the purchaser for the specific performance of the contract.
    [Ed. Note. — For .other cases, see Judgment, Cent. Dig. §§ 1062-1065, 1100, 1101; Dec. Dig. § 589.]
    3. Vendor and Purchaser (§ 189) — Rights of Parties — Estoppel.
    A mere contract of sale does not estop the purchaser to deny the vendor’s title, but a purchaser obtaining possession on the faith of the contract may not deny the vendor’s title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 381-383; Dee. Dig. § 189.]
    On Motion for Rehearing.
    4. Specific Performance (§§ 12, 97) — Contracts Enforceable — Contracts Relating to Real Estate.
    A contract to convey real estate may be specifically enforced at the suit of the purchaser, though, subsequent to the contract, he obtained an outstanding title, but he must tender to the vendor performance ,by paying the contract price, less what it cost to acquire the outstanding title.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 26-28, 37, 286-298; Dec. Dig. §§ 12, 97.]
    5. Specific Performance (§ 123) — Contracts Enforceable — Contracts Relating to Real Estate.
    A purchaser of real estate acquired an outstanding title, and then brought trespass to try title against the vendor, who obtained judgment. The purchaser did not, pending the action of trespass to try title, dismiss a suit for specific performance, and did not demand the return of the earnest money ’■'aid. The vendor, previous to the institution of the suit, had declared his intention not to comply with .the contract. Held, that the purchaser did not, as a matter of law, abandon his right to specific performance, but the issue was for the jury.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 397-399; Dec. ‘Dig. § 123.]
    6. Evidence (§ 589) — Weight — Testimony of Party.
    The testimony of a party to an action is not binding on the jury, where there are circumstances contradicting the testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. § 589.]
    Appeal from District Court, Carson County ; C. E. Gustavus, Special Judge.
    Action by J. A. Whittenberg against R. F. Groves. From a judgment for plaintiff, defendant appeals.
    Reversed and' remanded.
    R. E. Taylor and W. T. Allen, both of Henrietta, for appellant. Veale & Davidson, of Amarillo, for appellee.

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

   HALL, J.

Appellee filed this suit in the district court of Hutchinson county January 7, 1910, to compel specific performance of a contract for the sale of land. The venue was changed to the district court of Carson county, where it was tried at the fall term, 1913.

The material allegations of appellee’s petition are that on January 18, 1906, he obtained from one S. M. Hedgeeoke, acting as the agent for one Arthur Cook, a contract set out in the petition, reciting the payment of ?210 by appellee, and the promise to pay an additional sum of $790, and the further sum of $2,000 in four equal payments to, be evidenced by notes bearing interest at the rate of 8 per cent, per annum from date. Appel-lee further alleges that thereafter, on February 10, 1906, he obtained direct from the appellant the following contract: “Received of J. A. Whittenberg the sum of $210.00, as part payment of the following described land, situated in Hutchinson county, Texas, and known as follows, to wit: Section No. 30, in block M — 23, T. &'C. Ry. Co., containing 640 acres of land; also all of section No. 6, in block R — 2, D. & T. Ry. Co., containing 640 acres of land; and I hereby agree to make the said Whittenberg a good and perfect conveyance, conveying to him an absolute title to the same, save and except the claim of the state for purchase money, reserving a vendor’s lien for the balance of the purchase price, to wit, four notes of $500.00 each, to become due and payable in one, two, three, and four years respectively after date, the balance of the cash payments to be paid when deed is delivered in the sum of $790.00. The condition of the within obligation is dependent upon my being able to perfect title held by me under deed of W. B. Ware, as administrator, and the compliance on the part of the said Whittenberg in the execution and delivery of the notes hereinbefore referred to and are to bear 8 per cent, interest per an-num and payable at Shamrock, Texas. Witness my hand this 10th day of February, 1906.’-’ This contract was signed by both appellant and appellee, and witnessed by Ben H. Kelly.

It is further alleged, in substance, that at the time of the making of said contract, appellant was claiming title to the lands therein mentioned under a sale by one W. B. Ware, purporting to act as administrator and executor of the estate of O. J. Johnson, deceased, said transaction of date December 23, 1902, and that, by the terms of said contract, appellant bound himself to convey said lands to appellee, and, further, that, if the title to said lands was not held by appellant at the date of said contract, then appellant bound bimself to perfect his title under the Ware transaction, and, when same should be so perfected, to convey the same to appellee; that appellant’s title to said land was good at the date of the making of said contract, and he was absolutely bound to convey the same; but that if the title was not good when said contract was made, that the same had, since said time, been perfected under the Ware transaction, and appellant was bound in either event to convey the same. Appellee further set up, as an estoppel against appellant’s denying that he had title to said land under the Ware transaction, the fact that a trespass to try title suit between the parties hereto had been filed, and resulted in a judgment perfecting said title. Appellee further alleged a breach by appellant; that appellee was ready and willing to perform and other matters which we deem it unnecessary to set forth.

The material part of appellant’s answer to the determination of the issues submitted by this appeal is that appellee, in the early part of 1911, secured quitclaim deeds from O. M. Johnson and the other heirs of O. L. Johnson and his wife, Vienna Johnson, and brought trespass to try title against the appellant on' said title, and prosecuted said suit to a judgment, in which appellant prevailed, and, by reason of said fact, appellee had abandoned and repudiated the contract which forms the basis of this suit; and that judgment in the said trespass to try title suit was res judicata as to all matters at issue between the parties in this suit. It is also alleged that the appellant had himself abandoned and repudiated the contract.

After the testimony was introduced, the special judge trying the ease gave a peremptory instruction to the jury to find for the plaintiff, and judgment was entered accordingly-

The case is submitted upon two assignments of error. By the first assignment it is insisted that, the defendant having pleaded that the contract had been mutually abandoned, and the undisputed evidence showing that the plaintiff had assumed an attitude of hostility to the contract, and had conducted a long lawsuit which in its very nature was a repudiation of the contract, the court should have held, as a matter of law, that the contract had been mutually abandoned and repudiated by both the plaintiff and defendant, and should have instructed a verdict in favor of defendant. The second assignment is that the court erred in peremptorily instructing the jury, because the evidence at least raised an issue of fact as to whether or not plaintiff had abandoned and repudiated the contract which he sought to enforce.

It appears from the record in the case that in the year 1900 O. L. Johnson purchased from the state of Texas four sections of land, two of them being the land involved in this suit; that on September 25th of said year he, joined by his wife, Vienna Johnson, by quitclaim, conveyed the four sections to their son, O. M. Johnson; and that this deed was recorded in Hutchinson county December 19, 1900. O. L. Johnson died in August, 1901, and Vienna Johnson died in June, 1903. On December 23, 1902, one W. B. Ware, purporting to be the executor and administrator of the estate of O. D. Johnson, deceased, executed to appellant herein a deed to the four sections of land for a consideration of $2,200. It seems to be conceded that this deed was made without legal authority as administrator and executor on the part of said Ware. In January, 1906, appellee procured from one S. M. Hedgecoke, claiming to be the agent for Arthur Cook, the contract of January 18, 1906, first above set out, whereby appellee agreed to purchase the two sections of land in controversy. It seems that, at the time of the making of this contract, the said Cook was claiming some kind of an agreement or obligation whereby appellant herein was to convey to him the land in question. This contract was not introduced in evidence. After the contract of January 18th was executed, Hedgecoke stated to appellee that there would have to be some litigation, and that he could not obtain the title at the time, inquiring of appellee whether he would comply with the contract. In reply appellee stated that he would, if he could get a contract direct from appellant. Hedgecoke assented to this and appellee then procured the contract of February 10, 1906, from appellant. The matter remained in this condition until some time in the spring of 1909, when, according to the testimony of appellee, appellant absolutely refused to complete the contract, stating that John Johnson, one of - the heirs of O. D. Johnson, had recovered one-eighteenth interest in the land; which released appellant from his obligation under the contract. The testimony is that at that time appellee told appellant he would attempt to force him to perform. On March 30, 1911, appellee filed suit in the district court of Hutchinson county, in the form of trespass to try title against appellant for the four sections of land. Appellant answered by plea of five years, plea of estoppel, and ratification against O. L. Johnson’s heirs to contest the Ware sale. Upon a trial, the appellant prevailed in that suit. ■ The proceedings in the trespass to try title suit were introduced in evidence in the trial of this case, and it appears therefrom that the 'contract here sued upon was in no way involved in the trespass to try title suit. No reference is made to it in the pleadings or evidence. The contention of appellee is that the cause of action set up by him in the instant case is altogether a different cause of action from that set up in the former suit, and is in no way inconsistent with the issues and judgment shown by the proceedings in the trespass to try title action.

We think the court erred in peremptorily instructing a verdict for the appellee. The issues of abandonment of the contract and repudiation by appellee were issues of fact. It will be seen that the contract provides that appellant shall convey the two sections of land in question to appellee when he has perfected his right to the land under the Ware deed. The record fails to show that he had taken any steps to accomplish this end up to the time the suit in trespass to try title was filed by the appellee. While the evidence shows that appellee purchased the claim or interest of the Johnson heirs to the four sections, and filed suit in trespass to try title, it does not show conclusively that he had either abandoned or repudiated the contract of which he now seeks specific performance. The authorities cited by appellant do not sustain his contention that the filing of the trespass to try title suit was, as a matter of law, an abandonment and repudiation of the contract of sale. On the other hand, it appears that at no time did appellee demand a rescission of the contract of sale or the return of the $210 paid by him as earnest money, or. as a first payment upon the land, and his oral testimony is to the effect that he had not abandoned the contract, and never intended to repudiate it at any time, and as said abandonment and repudiation depend upon intent, and are issues of fact for the jury. Durham v. Breathwit, 57 Tex. Civ. App. 38, 121 S. W. 890; Rush v. Bank, 160 S. W. 609; Simpson v. McLemore, 8 Tex. 448; Hollingsworth v. Holshousen, 17 Tex. 41; M., K. & T. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745; Utah Mining & Mfg. Co. v. Dickert & Myers Sulphur Co., 6 Utah, 183, 21 Pac. 1002, 5 L. R. A. 259, and note.

We agree with appellee in his proposition that the judgment rendered in the trespass to try title suit was not res judicata of the issues in this ease. Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596; American F. L. & M. Co. v. MacDonell, 93 Tex. 398, 55 S. W. 738; Fowler v. Stoneum, 11 Tex. 511, 62 Am. Dec. 490; Manning et al. v. Green, 56 Tex. Civ. App. 579, 121 S. W. 721; Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195. We think the filing of that suit and its prosecution to final judgment is merely a fact which should be considered with all the other facts, declarations, acts, and circumstances surrounding the transaction tending to show whether or not the contract had been abandoned or repudiated, and that this issue should have been submitted to the jury.

It is the general rule that a person who has entered into the possession of land under an executory contract of sale will not be permitted to deny his vendor’s title, but the rule has no application to this case, for the reason that appellee never took possession of the land under the contract. As said in Page v. Bradford-Kennedy Co., 19 Idaho, 685, 115 Pac. 694, Ann. Cas. 1912C, and note, p. 406: “The contract [of sale] alone does not estop the purchaser to deny the vendor’s title. As has been stated, the estoppel arises from the purchaser’s having obtained the possession of the land on the faith of the contract. Clee v. Seaman, 21 Mich. 287.”

Because of the action of the trial court in peremptorily instructing the jury, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

It is insisted in appellee’s motion for rehearing that the sole and only evidence relied upon to show abandonment was the purchase by appellee of the Johnson claim of title and the act of appellee in filing and prosecuting to final judgment the trespass to try title suit based thereon, and that, because the judgment in that suit was not res ju-dicata, the trial court was justified in peremptorily instructing the jury against the contention of appellant that the contract had been abandoned by appellee. We did not discuss the facts bearing upon the issues to any extent in the original opinion, because it is improper' for us to do so where a case is remanded. It is necessary, however, for us to briefly discuss the effect of the evidence in passing upon this motion.

The record shows that appellee acquired the outstanding title from the Johnson heirs. The acquisition of this title was the only thing which prevented appellant from performing the contract. As we understand the law, appellee had the right, upon obtaining this title, to demand of appellant that he convey to appellee whatever interest he may have previously held, and to tender to appellant performance by paying the contract price, less ■ what it had cost appellee to acquire the Johnson title. Instead of doing this, appellee filed suit upon a hostile claim.

A jury might have decided that this constituted, on the part of appellee, an abandonment of his right of action for specific performance. It is true that, notwithstanding the institution of the trespass to try title suit, appellee did not dismiss this suit, which had been previously filed for specific performance, nor did he demand the return of his earnest money, and it is also true that he testified without contradiction that he was always ready and willing to perform the contract. But it has been frequently held that the testimony of a party to a suit is not conclusive and binding upon the jury where there are facts and circumstances which tend to contradict his statements. Franklin v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203; Burleson v. Tinnin, 100 S. W. 350; Heierman v. Robinson, 26 Tex. Civ. App. 491, 63 S. W. 657. The record further shows that, prior to the institution of this suit, according to the uncontradieted testimony of appellee, GrQves had declared his intention not to comply with the contract, which may in a measure furnish an excuse for the failure of ap-pellee to demand specific performance of the contract after he had acquired the Johnson title; but we cannot so declare as a matter of law. The question arises: Why was hostile title asserted, 'rather than an effort made to obtain specific performance? This is a question of fact, and not of law. The facts may be sufficient to convince a jury that appellee also decided to abandon his rights in that direction, and rest his chances upon the trespass to try title suit alone. In the discussion of the issue by appellee in his motion, he loses sight of the question of intent. As said in a valuable new work which had just come to our hands: “Therefore in any case where a question of abandonment is involved, the important fact to be determined is: What was the intention of the person whose rights are claimed to have been abandoned?” Volume 1, Ruling Case Law, “Abandonment,” p. 5. Further quoting from said authority: “As in other cases showing the ascertainment of a particular intent, direct evidence of an intent to abandon property or rights of property is not required, but may be inferred from all the facts and circumstances of the case which are competent to go to the jury as evidence by which that fact may be established.” Id. p. 5. “Although doubtless the occasion may sometimes arise when the facts which constitute the evidence of abandonment are so clear and uncontradicted as to justify the court in instructing the jury as a matter of law that there has been an abandonment, yet in most cases the question of intent to abandon is to be ascertained by the jury from a consideration of all the facts and circumstances of the casé.” Id. p. 8.

We have fully considered appellee’s second proposition, which is that, when one party to a contract is in default, he cannot have a rescission or defend against his suit on the contract on the ground of default of the other party. If this proposition is applicable to this case, it does not bear upon the question of abandonment. We do not agree with appellant that res judicata is the point upon which this case turns. A judgment in an action may or may not be res judicata. Still the intention of the plaintiff in filing and prosecuting the suit to judgment is altogether a different question. If we should admit that Groves defaulted, and that he refused to comply with the contract, still this may be one reason why appellee abandoned the contract, if he did. We do not believe we would be justified ih holding, with appellee’s contention, that, as a matter of law, his prosecution of the trespass to try title suit was not an abandonment, and, because the judgment in that suit was not res judicata, there were no facts to go to the jury under appellant’s plea of repudiation, and the motion is therefore overruled.